From: Aaron Gaudio <icy_manipulator@mindless.com>
  To  : ggi-develop@eskimo.com
  Date: Thu, 4 Mar 1999 22:45:59 -0500 (EST)

Re: fbcon-kgi.c licensing problem

And lo, the chronicles report that Jon M. Taylor spake thusly unto the masses:
> 
> 	Linus says that he does not consider module loading to be
> 'linking' as the GPL refers to the term.  Whether he has the _right_ to do
> this, even to his own creation, is still very much an open question.  I
> personally have serious doubts about whether that will stand up in court
> if it is ever put to the test:
> 
> * Linus is not any more important in a legal sense than anyone else who 
> has contributed kernel code.  What if Alan Cox disagrees with him?

But he is. Linux is the kernel and Linus is the copyright. Linus has discretion
over the copyright the kernel code is covered over. He therefore has the
power to change the copyright, modify it, or clarify it as he sees fit,
despite the "original" intent of the GPL. The kernel is distributed by Linus,
and any patches people provide are provided to Linus, who then incorporates
the patches/additions into the kernel. Therefore, Linus has full control over
the the modifications to the kernel, even if he himself doesn't write it all.
A non-standard patch would be different, except that the GPL states that
derivitave works must use the same license as the original. Since Linus has
clarified that, for Linux, kernel modules are not considered "linked" to 
the kernel (indeed, what are they linked to?), I would assume (although
IANAL) that that applies to all derivative works too.

> 
> * The term 'linking' cannot be clearly defined, even by experts in
> Computer Science.  Courts have traditionally ruled that the meaning of all
> the terms in a legal document (which a software license is) must be
> clearly defined, either at the time of the writing of the document or at
> the time of the offense.  In other words, people have to be able to know
> if they are breaking the terms of the license or not, and right now that is
> not the case.

This may be true or not, but Linus' clarification will reduce potential
conflicts, since it opens the possibility of using proprietary kernel
modules. I doubt that a writer of a proprietary kernel module would sue to
ensure that their module could *not* be used with the kernel. 

> 
> * Saying 'Linus gets to define what is and is not "linking"' in effect is 
> saying that Linus has the power to arbitrarily make the execution of 
> certain classes of binaries in a Linux environment legal or illegal, 
> whenever he wants, however he wants, for whatever reason (or no reason) 
> he wants.  For sure, that was not the intent of the linking clause in the 
> GPL, and yet this is an inevitable consequence of it.

Linus chose the GPL. Richard Stallman and the FSF may control the text of
the GPL, but Linus certainly has the control over the licensing of Linux.
Think of it as the "GPL with Linus' clarification which applies to Linux".

Nonetheless, even if this were not accurate, who would sue to restrict
a module writer from distributing a proprietary module? Surely only Linus
would have that power, and he has thus announced he would not use it if he did.

> 
> 
> 	I feel that the linking clause will be ruled null and void if the
> GPL is ever put to a court test.  Thus, there will be no difference
> between the LGPL and the GPL, and everything that is GPLed will
> automatically be linkable and runnable in any environment without
> restriction.  WHich is as it should have been all along.  The linking
> clause is bullshit.  It has caused almost all of the hassles (like the Qt
> flamewar) that have been associated with the GPL.  It does nothing to
> advance the cause of free software - all it does is play petty little
> political games.

I disagree. I see definate benefits of GPL'd libraries which can only be
linked to by GPL'd software. I also see benefits of LGPL'd libraries. The
difference is in the intent of the author. An author of a GPL'd library
(for instance, GNOME's libgtop or libreadline) chooses that license
explicitely because he (or she) does not intend for their work to be used
in propriatary applications. As Richard Stallman pointed out (who may not
be popular with everyone, and offen I disagree with his extremism myself),
the world of proprietary software protects its work with licenses which 
restrict free usage. Why shouldn't it be *possible* (not mandatory) to 
protect free software from proprietary use? If the author intends that
then they should have the right to do so. If the author wants to distribute
his or her software in a way that it can be used both by free software
as well as proprietary software then he or she is free to choose the LGPL or
even non-copyleft licenses like BSD, XFree86, etc.

Now, as for bringing it to court, note that the GPL license does not contain
the word "link" anywhere in its text, so any ambiguity having to do with
"linking" is avoided. The GPL deals with "the Program" and "work based on
the Program", the latter being described as "either the Program or any
derivative work under copyright law: that is to say, a work containing the
Program or a portion of it, either verbatim or with modifications and/or
translated into another language." Although I have no case study, I'm fairly
certain that linking to an (at least) static library could be considered as
containing a portion of the program. And I am certain that there is clear
intent that linking to a dynamic library is considered the same.

I am not arguing that either the GPL or the LGPL are better or worse than
the other, merely that they both serve somewhat different functions, and
that neither should be chastised for what it is. 

The point is moot, however, since Linus has said that kernel modules can
be proprietary, this will not be challenged, and therefore, KGI modules can
follow under any license their author chooses. Therefore, the licensing
terms of KGI modules shipped standard with KGI are left to the authors to
specify, political idealogy regardless.


-- 

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