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*LINUX BEHIND THE SCENES* Linus on the "Gray Area" of Closed Source Drivers and the GPL

*LINUX BEHIND THE SCENES* Linus on the "Gray Area" of Closed Source Drivers and the GPL

 [Thanks to Florida-based computer consultant Jeremy Andrews for bringing this to our attention.]

In the hope and belief that it may provide LinuxWorld readers with an insight into the effort, energy, and expertise that undergirds Linux, here is the thread from the Linux.Kernel mailing list, in full:

 

Newsgroups: linux.kernel
From: Kendall Bennett
Subject: Linux GPL and binary module exception clause?
Date: 2003-12-03 13:40:20 PST

Hi All,

I have heard many people reference the fact that the although the Linux
Kernel is under the GNU GPL license, that the code is licensed with an
exception clause that says binary loadable modules do not have to be
under the GPL. Obviously today there are vendors delivering binary
modules (not supported by the kernel maintainers of course), so clearly
people believe this to be true. However I was curious about the wording
of this exception clause so I went looking for it, but I cannot seem to
find it. I downloaded the 2.6-test1 kernel source code and looked at the
COPYING file, but found nothing relating to this (just the note at the
top from Linus saying user programs are not covered by the GPL). I also
looked in the README file and nothing was mentioned there either, at
least from what I could see from a quick read.

So does this exception clause exist or not? If not, how can the binary
modules be valid for use under Linux if the source is not made available
under the terms of the GNU GPL?

Lastly I noticed that the few source code modules I looked at to see if
the exception clause was mentioned there, did not contain the usual GNU
GPL preable section at the top of each file. IMHO all files need to have
such a notice attached, or they are not under the GNU GPL (just being in
a ZIP/tar achive with a COPYING file does not place a file under the GNU
GPL). Given all the current legal stuff going on with SCO, I figured
every file would have such a header. In fact some of the files I looked
at didn't even contain a basic copyright notice!!


Regards,

---
Kendall Bennett
Chief Executive Officer
SciTech Software, Inc.
http://www.scitechsoft.com

 

From: Arjan van de Ven, Red Hat
Subject: Re: Linux GPL and binary module exception clause?
Date: 2003-12-03 14:00:29 PST

On Wed, 2003-12-03 at 22:31, Kendall Bennett wrote:
> Hi All,
>
> I have heard many people reference the fact that the although the Linux
> Kernel is under the GNU GPL license, that the code is licensed with an
> exception clause that says binary loadable modules do not have to be
> under the GPL.

there is no such exception, for example see:

http://www.kernelnewbies.org/kernels/rh9/SOURCES/COPYING.modules


 

From: Kendall Bennett
Subject: Re: Linux GPL and binary module exception clause?
Date: 2003-12-03 15:40:25 PST

Arjan van de Ven wrote:

> On Wed, 2003-12-03 at 22:31, Kendall Bennett wrote:
> > Hi All,
> >
> > I have heard many people reference the fact that the although the Linux
> > Kernel is under the GNU GPL license, that the code is licensed with an
> > exception clause that says binary loadable modules do not have to be
> > under the GPL.
>
> there is no such exception, for example see:
>
> http://www.kernelnewbies.org/kernels/rh9/SOURCES/COPYING.modules

Thanks for the link, that pretty much explains what I needed to know!

Regards,

--- Kendall Bennett
Chief Executive Officer
SciTech Software, Inc.
http://www.scitechsoft.com

 

From: Richard B. Johnson
Subject: Re: Linux GPL and binary module exception clause?
Date: 2003-12-03 14:20:19 PST

On Wed, 3 Dec 2003, Kendall Bennett wrote:

> Hi All,
>
> I have heard many people reference the fact that the although the Linux
> Kernel is under the GNU GPL license, that the code is licensed with an
> exception clause that says binary loadable modules do not have to be
> under the GPL. Obviously today there are vendors delivering binary
> modules (not supported by the kernel maintainers of course), so clearly
> people believe this to be true. However I was curious about the wording
> of this exception clause so I went looking for it, but I cannot seem to
> find it. I downloaded the 2.6-test1 kernel source code and looked at the
> COPYING file, but found nothing relating to this (just the note at the
> top from Linus saying user programs are not covered by the GPL). I also
> looked in the README file and nothing was mentioned there either, at
> least from what I could see from a quick read.
> > So does this exception clause exist or not? If not, how can the binary
> modules be valid for use under Linux if the source is not made available
> under the terms of the GNU GPL?
>

I'll jump into this fray first stating that it is really great
that the CEO of a company that is producing high-performance graphics
cards and acceleration software is interested in finding out this
information. It seems that some other companies just hack together some
general-purpose source-code under GPL and then link it with a secret
object file. This, of course, defeats the purpose of the GPL (which is
or was to PUBLISH software in human readable form).

It is certainly time for a definitive answer.

Maybe Linus knows the answer.

> Lastly I noticed that the few source code modules I looked at to see if
> the exception clause was mentioned there, did not contain the usual GNU
> GPL preable section at the top of each file. IMHO all files need to have
> such a notice attached, or they are not under the GNU GPL (just being in
> a ZIP/tar achive with a COPYING file does not place a file under the GNU
> GPL). Given all the current legal stuff going on with SCO, I figured
> every file would have such a header. In fact some of the files I looked
> at didn't even contain a basic copyright notice!!
 
I have been told by lawyers who do intellectual property
law for a living that under US Copyright law, the INSTANT
that something is written anywhere in a manner that allows
it to be read back, it is protected by the writer's default
copyright protection. The writer may alter that protection or
even assign ownership to something or somebody else, but nobody
needs to put a copyright notice anywhere in text. Now, if you
intend to sue, before that suit starts, the text must be registered
with the United States Copyright Office. In that case, it still
doesn't need a copyright notice or the famous (c) specified by
the act. It just needs to be identified by the writer, like:

File: TANGO.FOR Created 12-DEC-1988 John R. Doe

Grin... from my VAX/VMS days.

Cheers,
Dick Johnson
Penguin : Linux version 2.4.22 on an i686 machine (797.90 BogoMips).
Note 96.31% of all statistics are fiction.

 

From: Kendall Bennett
Subject: Re: Linux GPL and binary module exception clause?
Date: 2003-12-03 15:40:23 PST

Richard B. Johnson wrote:

> > So does this exception clause exist or not? If not, how can the binary
> > modules be valid for use under Linux if the source is not made available
> > under the terms of the GNU GPL?
>
> I'll jump into this fray first stating that it is really great that
> the CEO of a company that is producing high-performance graphics
> cards and acceleration software is interested in finding out this
> information. It seems that some other companies just hack together
> some general-purpose source-code under GPL and then link it with a
> secret object file.

Well one of the primary reasons we are interested in researching this is
because we are in the process of preparing to release the SciTech SNAP
DDK under the GNU GPL license (dual licensed for proprietry developers),
and want to understand the ramifications of this approach. I must say I
am surprised to see that such a clause does not exist, since binary only
modules seem to be pretty abundant in the community.

Then again the whole 'derived works' clause in the GPL is a huge gray
area IMHO, and even just sitting there arguing with myself I can come up
with pretty good arguments in both directions for why a binary only
module is legal or not. Especially when the only reference to this in the
GNU GPL FAQ is about plugins, and they use a really silly distinction
about whether a plugin uses fork/exec or not. I mean if you use fork/exec
to start the plugin, yet the plugin uses RPC and shared memory to
communicate with the main process, that is the same as local procedure
calls and local memory IMHO.

> > Lastly I noticed that the few source code modules I looked at to see if
> > the exception clause was mentioned there, did not contain the usual GNU
> > GPL preable section at the top of each file. IMHO all files need to have
> > such a notice attached, or they are not under the GNU GPL (just being in
> > a ZIP/tar achive with a COPYING file does not place a file under the GNU
> > GPL). Given all the current legal stuff going on with SCO, I figured
> > every file would have such a header. In fact some of the files I looked
> > at didn't even contain a basic copyright notice!!
>
> I have been told by lawyers who do intellectual property law for a
> living that under US Copyright law, the INSTANT that something is
> written anywhere in a manner that allows it to be read back, it is
> protected by the writer's default copyright protection.

Yes of course, but if there is no notice in the file, who is the
copyright holder? Only the original author knows for sure, and for
someone to *use* that file without permission from the original author
would be inviting a lawsuit.

> The writer may alter that protection or even assign ownership to
> something or somebody else, but nobody needs to put a copyright
> notice anywhere in text. Now, if you intend to sue, before that
> suit starts, the text must be registered with the United States
> Copyright Office. In that case, it still doesn't need a copyright
> notice or the famous (c) specified by the act. It just needs to be
> identified by the writer, like:
>
> File: TANGO.FOR Created 12-DEC-1988 John R. Doe
>
> Grin... from my VAX/VMS days.

Right, but there are files in the source code with *nothing* at the top.
No copyright header, not notice of who wrote the file, nothing.

In my opinion, unless a specific source file has a copyright notice
attached to it and specifically says 'you are licensed to use this file
under the terms of the GNU GPL - see the COPYING file' etc, then that
file is *not* under the GNU GPL. What that means is that I would have
zero rights to use that file without direct permission from the author,
and realistically should not use it.

If there are lots of files like that in the Linux kernel, then that means
that none of us really have the right to use Linux on our machines!
Yikes. Considering that all GNU projects contain this type of header, I
have always just assumed the Linux kernel source code would too.
Especially now with this SCO debacle going on.

Regards,
---
Kendall Bennett
Chief Executive Officer
SciTech Software, Inc.

 

From: bill davidsen
Subject: Re: Linux GPL and binary module exception clause?
Date: 2003-12-03 16:00:35 PST

Richard B. Johnson wrote:
| On Wed, 3 Dec 2003, Kendall Bennett wrote:
|
| > Hi All,
| >
| > I have heard many people reference the fact that the although the Linux
| > Kernel is under the GNU GPL license, that the code is licensed with an
| > exception clause that says binary loadable modules do not have to be
| > under the GPL. Obviously today there are vendors delivering binary
| > modules (not supported by the kernel maintainers of course), so clearly
| > people believe this to be true. However I was curious about the wording
| > of this exception clause so I went looking for it, but I cannot seem to
| > find it. I downloaded the 2.6-test1 kernel source code and looked at the
| > COPYING file, but found nothing relating to this (just the note at the
| > top from Linus saying user programs are not covered by the GPL). I also
| > looked in the README file and nothing was mentioned there either, at
| > least from what I could see from a quick read.
| >
| > So does this exception clause exist or not? If not, how can the binary
| > modules be valid for use under Linux if the source is not made available
| > under the terms of the GNU GPL?
| >
|
| I'll jump into this fray first stating that it is really great
| that the CEO of a company that is producing high-performance graphics
| cards and acceleration software is interested in finding out this
| information.

Really? I guess I'm just suspicious, but when someone who might have an
interest in only providing a binary driver asks about the legality of
doing that, "great" is not my first thought.

| information. It seems that some other companies just hack together some
| general-purpose source-code under GPL and then link it with a secret
| object file. This, of course, defeats the purpose of the GPL (which is
| or was to PUBLISH software in human readable form).

Yes, I am a devout fundamentalist paranoid, but I've based my life on
the assumptions that I should treat others fairly and expect them to
screw me if they could, and both have served me well.

I do not mean to cast aspersions on the original poster, about whom I
know nothing. There are many companies who have provided full source
drivers, and I have rewarded them with my business. I have chosen less
performance video over binary module hardware, and would be very happy
if there were some guilt-free hardwaree to use. I'm just starting to do
video processing, I'd be *really* happy, ecstatic even.
--
bill davidsen
CTO, TMR Associates, Inc
Doing interesting things with little computers since 1979.


From: Linus Torvalds
Subject: Re: Linux GPL and binary module exception clause?
Date: 2003-12-03 16:10:18 PST

On Wed, 3 Dec 2003, Kendall Bennett wrote:
>
> I have heard many people reference the fact that the although the Linux
> Kernel is under the GNU GPL license, that the code is licensed with an
> exception clause that says binary loadable modules do not have to be
> under the GPL.

Nope. No such exception exists.

There's a clarification that user-space programs that use the standard
system call interfaces aren't considered derived works, but even that
isn't an "exception" - it's just a statement of a border of what is
clearly considered a "derived work". User programs are _clearly_ not
derived works of the kernel, and as such whatever the kernel license is
just doesn't matter.

And in fact, when it comes to modules, the GPL issue is exactly the same.
The kernel _is_ GPL. No ifs, buts and maybe's about it. As a result,
anything that is a derived work has to be GPL'd. It's that simple.

Now, the "derived work" issue in copyright law is the only thing that
leads to any gray areas. There are areas that are not gray at all: user
space is clearly not a derived work, while kernel patches clearly _are_
derived works.

But one gray area in particular is something like a driver that was
originally written for another operating system (ie clearly not a derived
work of Linux in origin). At exactly what point does it become a derived
work of the kernel (and thus fall under the GPL)?

THAT is a gray area, and _that_ is the area where I personally believe
that some modules may be considered to not be derived works simply because
they weren't designed for Linux and don't depend on any special Linux
behaviour.

Basically:

  • anything that was written with Linux in mind (whether it then _also_
    works on other operating systems or not) is clearly partially a derived
    work.
  • anything that has knowledge of and plays with fundamental internal
    Linux behaviour is clearly a derived work. If you need to muck around
    with core code, you're derived, no question about it.

Historically, there's been things like the original Andrew filesystem
module: a standard filesystem that really wasn't written for Linux in the
first place, and just implements a UNIX filesystem. Is that derived just
because it got ported to Linux that had a reasonably similar VFS interface
to what other UNIXes did? Personally, I didn't feel that I could make that
judgment call. Maybe it was, maybe it wasn't, but it clearly is a gray
area.

Personally, I think that case wasn't a derived work, and I was willing to
tell the AFS guys so.

Does that mean that any kernel module is automatically not a derived work?
HELL NO! It has nothing to do with modules per se, except that non-modules
clearly are derived works (if they are so central to the kernel that you
can't load them as a module, they are clearly derived works just by virtue
of being very intimate - and because the GPL expressly mentions linking).

So being a module is not a sign of not being a derived work. It's just
one sign that _maybe_ it might have other arguments for why it isn't
derived.

Linus


From: Linus Torvalds

Subject: Re: Linux GPL and binary module exception clause?
Date: 2003-12-03 16:30:21 PST

On Wed, 3 Dec 2003, Linus Torvalds wrote:
>
> So being a module is not a sign of not being a derived work. It's just
> one sign that _maybe_ it might have other arguments for why it isn't
> derived.

Side note: historically, the Linux kernel module interfaces were really
quite weak, and only exported a few tens of entry-points, and really
mostly effectively only allowed character and block device drivers with
standard interfaces, and loadable filesystems.

So historically, the fact that you could load a module using nothing but
these standard interfaces tended to be a much stronger argument for not
being very tightly coupled with the kernel.

That has changed, and the kernel module interfaces we have today are MUCH
more extensive than they were back in '95 or so. These days modules are
used for pretty much everything, including stuff that is very much
"internal kernel" stuff and as a result the kind of historic "implied
barrier" part of modules really has weakened, and as a result there is not
avery strong argument for being an independent work from just the fact
that you're a module.

Similarly, historically there was a much stronger argument for things like
AFS and some of the binary drivers (long forgotten now) for having been
developed totally independently of Linux: they literally were developed
before Linux even existed, by people who had zero knowledge of Linux. That
tends to strengthen the argument that they clearly aren't derived.

In contrast, these days it would be hard to argue that a new driver or
filesystem was developed without any thought of Linux. I think the NVidia
people can probably reasonably honestly say that the code they ported had
_no_ Linux origin. But quite frankly, I'd be less inclined to believe that
for some other projects out there..

Linus

 

From: Karim Yaghmour
Subject: Re: Linux GPL and binary module exception clause?
Date: 2003-12-03 22:30:11 PST

Hello Linus,

Linus Torvalds wrote:
> Similarly, historically there was a much stronger argument for things like
> AFS and some of the binary drivers (long forgotten now) for having been
> developed totally independently of Linux: they literally were developed
> before Linux even existed, by people who had zero knowledge of Linux. That
> tends to strengthen the argument that they clearly aren't derived.
> > In contrast, these days it would be hard to argue that a new driver or
> filesystem was developed without any thought of Linux. I think the NVidia
> people can probably reasonably honestly say that the code they ported had
> _no_ Linux origin. But quite frankly, I'd be less inclined to believe that
> for some other projects out there..

Since the last time this was mentioned, I have been thinking that this
argument can really be read as an invitation to do just what's being
described: first implement a driver/module in a non-Linux OS (this may even
imply requiring that whoever works on the driver/module have NO Linux
experience whatsoever; yes there will always be candidates for this) and then
have this driver/module ported to Linux by Linux-aware developers.

Sure, one could argue about "intent", but that's going to be really
difficult, especially if the right-hand doesn't know what the left-hand
is doing. IOW, can't this position be abused as much as, if not more
than, publishing an "approved" set of characteristics for non-GPL modules?

Just thinking aloud,

Karim
--
Author, Speaker, Developer, Consultant
Pushing Embedded and Real-Time Linux Systems Beyond the Limits


From: David Woodhouse
Subject: Re: Linux GPL and binary module exception clause?
Date: 2003-12-05 16:20:10 PST

On Thu, 2003-12-04 at 01:25 -0500, Karim Yaghmour wrote:
> Since the last time this was mentioned, I have been thinking that this
> argument can really be read as an invitation to do just what's being
> described: first implement a driver/module in a non-Linux OS (this may even
> imply requiring that whoever works on the driver/module have NO Linux
> experience whatsoever; yes there will always be candidates for this) and then
> have this driver/module ported to Linux by Linux-aware developers.

So you have a loadable module made of two sections; a GPL'd wrapper
layer clearly based on the kernel, and your original driver. The latter
is clearly an identifiable section of that compound work which is _not_
derived from Linux and which can reasonably be considered an independent
and separate work in itself.

The GPL and its terms do not apply to that section when you distribute
it as a separate work.

But when you distribute the same section as part of a _whole_ which is a
work based on the Linux kernel, the distribution of the whole must be on
the terms of the licence, whose permissions for other licensees extend
to the entire whole, and thus to each and every part regardless of who
wrote it.

For the precise wording which I've paraphrased above, see §2 of the GPL.

Note that 'is this a derived work' is only part of the question you
should be asking yourself. The GPL makes requirements about the
licensing even of works which are _not_ purely derived.

Some claim that copyright law does not allow the GPL to do such a thing.
That is incorrect. I can write a work and license it to you under _any_
terms I see fit. I can, for example, license it to you _only_ on
condition that you agree to release _all_ your future copyrightable
work, including works of fiction and other completely unrelated things,
under terms I decree.

You either do that or you don't have permission to use my work. Whether
your own work is derived or not is completely irrelevant; if you don't
agree to the terms of _my_ licence, you don't get to use _my_ code.
--
dwmw2

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Most Recent Comments
Walt 12/09/03 08:16:08 PM EST

Greg Bradley commented on 9 December 2003 that: If we follow the chain, msdos borrowed from Unix and could thus be assumed to be a derived work.

But if you research the history of UNIX you will find that UNIX borrowed from MULTICS thus it could also be assumed to be a direived work.

UNIX only groundbreaking characteristics is that it was the first OS written in a higher level language ("C") thus making is a portable language.

Greg Bradley 12/09/03 06:59:40 PM EST

The issue of derived works isn't just a GPL thing. At some point, the connection between any two pieces of code becomes tenuous enough that they can be safely assumed to be unconnected. Unfortunately, only a court could determine this for sure.
If we follow the chain, msdos borrowed from Unix and could thus be assumed to be a derived work, Microsoft in fact paid SCO's licence on that basis. Windows is derived from dos, hence any program that runs on windows is also a derived work and they should be paying SCO too.
Of course the bios in every PC was originally written to enable dos to boot, so it is a derived work and any program that runs on any pc regardless of operating system could also be classed as a derivative work etc etc.

Of course there has to be a limit and in the opinion of the courts that appears to be the word "substantial" (one of those lovely grey words that make lawyers rich).
In the BSD Unix case, it was clear that the court did not consider that BSD Unix contained sufficient pollution to warrant it being anything other than original code.

If your module contains a similar percentage pollution from GPL code (which would probably equate to no more than the actual interface) and was written entirely without GPL tools, it would be hard to prove it to be other than an original work.
The "fair use" dictates of copyright law (which has always allowed limited copying) would also support the idea that a module that had no more connection to GPL'd code than the standard interface to that code, would be an original work.

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With major technology companies and startups seriously embracing Cloud strategies, now is the perfect time to attend 21st Cloud Expo October 31 - November 2, 2017, at the Santa Clara Convention Center, CA, and June 12-14, 2018, at the Javits Center in New York City, NY, and learn what is going on, contribute to the discussions, and ensure that your enterprise is on the right path to Digital Transformation.
SYS-CON Events announced today that N3N will exhibit at SYS-CON's @ThingsExpo, which will take place on Oct 31 – Nov 2, 2017, at the Santa Clara Convention Center in Santa Clara, CA. N3N’s solutions increase the effectiveness of operations and control centers, increase the value of IoT investments, and facilitate real-time operational decision making. N3N enables operations teams with a four dimensional digital “big board” that consolidates real-time live video feeds alongside IoT sensor data a...
Amazon is pursuing new markets and disrupting industries at an incredible pace. Almost every industry seems to be in its crosshairs. Companies and industries that once thought they were safe are now worried about being “Amazoned.”. The new watch word should be “Be afraid. Be very afraid.” In his session 21st Cloud Expo, Chris Kocher, a co-founder of Grey Heron, will address questions such as: What new areas is Amazon disrupting? How are they doing this? Where are they likely to go? What are th...
In his Opening Keynote at 21st Cloud Expo, John Considine, General Manager of IBM Cloud Infrastructure, will lead you through the exciting evolution of the cloud. He'll look at this major disruption from the perspective of technology, business models, and what this means for enterprises of all sizes. John Considine is General Manager of Cloud Infrastructure Services at IBM. In that role he is responsible for leading IBM’s public cloud infrastructure including strategy, development, and offering ...
Digital transformation is changing the face of business. The IDC predicts that enterprises will commit to a massive new scale of digital transformation, to stake out leadership positions in the "digital transformation economy." Accordingly, attendees at the upcoming Cloud Expo | @ThingsExpo at the Santa Clara Convention Center in Santa Clara, CA, Oct 31-Nov 2, will find fresh new content in a new track called Enterprise Cloud & Digital Transformation.
SYS-CON Events announced today that NetApp has been named “Bronze Sponsor” of SYS-CON's 21st International Cloud Expo®, which will take place on Oct 31 – Nov 2, 2017, at the Santa Clara Convention Center in Santa Clara, CA. NetApp is the data authority for hybrid cloud. NetApp provides a full range of hybrid cloud data services that simplify management of applications and data across cloud and on-premises environments to accelerate digital transformation. Together with their partners, NetApp emp...