From: Aaron Gaudio <icy_manipulator@mindless.com>
  To  : ggi-develop@eskimo.com
  Date: Fri, 5 Mar 1999 00:04:44 -0500 (EST)

Re: fbcon-kgi.c licensing problem

And lo, the chronicles report that Marcus Sundberg spake thusly unto the masses:
> 
> Aaron Gaudio wrote:
> > > * 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.
> 
> GPL is the license and Linus is one of many copyright holders.

Right, but it is GPL with Linus' clarification.

> 
> > 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.
> 
> First of all you're confusing "copyright" with "license".
> "Copyright" is exactly what it sounds like - the exclusive right to
> decide who is allowed to copy your work and who is not. At least
> in Europe you have by default copyright on everything you create,
> provided that it is of some originality.
> 
> "License" is a set of terms and conditions under which you allow
> people to use a work you have the copyright on.
> 
> Linus only has "power" over code which he have the copyright on.
> All other code is the property of it's respective copyright holder,
> and Linus may not do anything with it without permission from that
> person.

Wrong, because according to the terms of the license supplied with the
Linux kernel which is copywright Linus, all derived works must be covered
under the same license as the original work. In this case, the original
work would be the Linux kernel which Linus distributed to the usenet
in 1991 (or before). Therefore, any code which is contibuted falls under
that license, or else it cannot be legally distributed within the kernel.
Therefore one can say Linus does have control over the licensing, or at
least he did in 1991. Linus also has control over his part of the code, and
can change its license (although he cannot retroactively do this; people would
still be able to use old code of his under the old license). If this modified
license was incompatible with the GPL, then all the contributions which 
were still under the GPL would have to be removed, even if this means at the
single file level. This would be a massive (and possibly impossible,
depending on the level of revision control) undertaking. The burden would
most likely fall on the contributors to detect the areas which they own and
to request their removal, since it would be their intellectual property
being infringed.

Needless to say, I don't see such a situation arising anytime soon.

Nonetheless, I'm not sure Linus' clarification makes the Linux license
incompatible with the GPL. In fact, the GPL was not altered at all, there
are no exceptions to it listed, merely clarifications of what is deemed
to be derivative work and what is not (e.g. software using system calls
is not considered to be a derivative work). In most cases, this could be
reasoned anyways. In the case of kernel modules, the kernel is not linked
to (it's not a library), no GPL'd or LGPL'd libraries are by necessity
linked to, nor is GPL or LGPL code necessarily incorporated into the module.
The module is simply an object file which contains code developed somewhere,
which it just so happens the kernel picks up and executes. If anything,
the kernel is a derivative of the module ;-). In this light, Linus'
clarification was more redundancy and assurance than new policy. The
system call clarification is less obvious, but since it is included in
the text of the license (/usr/src/linux/COPYING), it is pretty solid. Could
some devlopers have pulled their code when this clarification was made
(assuming it was made after 3rd parties had already contributed under the
GPL)? Probably. But since they didn't, they implicitly have agreed to
modify their own code's license to meet Linus', by not protecting their
intellectual property.

Anyways, it seems pointless to argue the point, since proprietary kernel
modules are in the best interest of the GGI project (as well as Linux as
a whole). It seems silly to blast on principal something one agrees to
in practice.


-- 

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| Aaron Gaudio                   mailto:icy_manipulator@mindless.com |
|                    http://www.rit.edu/~adg1653/                    |
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|      "The fool finds ignorance all around him.                     |
|          The wise man finds ignorance within."                     |
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