Re: Dual-Licensing Linux Kernel with GPL V2 and GPL V3

From: Ingo Molnar
Date: Fri Jun 15 2007 - 16:21:21 EST

* David Woodhouse <dwmw2@xxxxxxxxxxxxx> wrote:

> > So I really do _not_ think it's at all obvious. Personally, I think
> > it's exactly the same case. Others disagree, but I've never really
> > seen a good *reason* for them disagreeing.
> It's a grey area, and nobody's 'right' until/unless a court decides.
> And then only until/unless a higher court contradicts it. The reason I
> jumped in was to point out that it isn't _just_ about whether the
> module is a derived work or not. The GPL goes further than that.

i think you are putting too much weight behind the distinction between
derivatives/modifications and collective works / collections. The two
are very closely related: a derivative/modification is a work that
arises out of an existing work, while a collective work arises out of a
set of pre-existing works by adding some 'glue' to it (where the glue
itself is not a work in itself - the whole thing is the new work). In
fact one could argue that a derivative is a collective work based on a
_single_ preexisting work!

and thus the whole issue of "what is a whole", how strong the "glue"
needs to be so that the copyright of the collective work is meaningful
on its own and starts to affect every component and requires each of
them to be GPL licensed. This largely depends on how deeply a
distributor integrates said binary blobs. For example some Linux
distributors certainly found it safe enough to ship restricted software
on separate medium - even if they happen to be in the same physical
package. (which one could attempt to argue to be 'one work'.)

That boundary is indeed fuzzy, because life is fuzzy too and the
possibilities are virtually unlimited. But one thing is pretty sure: as
long as some component is merely put alongside of a larger body of work,
even if that component has no life of its own without _some_ larger body
of work, that component is not necessarily part of a collective work and
does not necessarily fall under the GPL. (unless it falls under the GPL
for entirely different reasons: for example it was continuously
developed out of internals of the 'larger body of work' and thus became
a derivative of the larger body of work.)

For driver blobs that are shared between Windows and Linux it would be
hard to argue that they are derived from the Linux kernel. Merely
linking to some larger body of work does not necessarily mean that the
two become a collective work. No matter how much the FSF is trying to
muddy the waters with the LGPL/GPL.

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