Re: [tlug] GPL and Linux in Dvico Tivx

["Stephen J. Turnbull" <stephen@example.com>]

>>>>> "Edward" == Edward Middleton <edwardmiddleton@example.com> writes:

    Edward> As you said "whether he did or not is not really the
    Edward> question", the Linux kernel is not owned by Linus (he is
    Edward> one of many copyright holders), It is covered by the GPL,

No, it's covered by whatever license the copyright holders have agreed
to.  It's harder to prove in court, but a verbal contract is every bit
as much a contract as a written one.  Remember, at one time Linus did
have 100% interest in the kernel, and as I recall he did not back down
when rms challenged him on his "interpretation" of the GPL.  So he
could argue that his intent was well-known, that such modules are
distributed in practice, and therefore there was an implicit rider to
the GPL.  It probably would not stand up in court, at least to the
extent that irate copyright holders could enforce withdrawal of their
code from the kernel.  But it might be enough for him to avoid any
damages.

    Edward> if Linus wants to change the copyright, he would, like
    Edward> anyone else, have to get the permission of all
    Edward> contributing parties or remove their contributions.

Or he can do what he wants, wait until somebody complains, and accept
the risk of damages.  For example, Wikipedia unilaterally relicensed
its entire content.  The Emacswiki has also done that.

    Edward> Unless you are suggesting this has happened the rest is
    Edward> moot.

I believe that in fact that has happened, implicitly.  I already said
that Linus was pretty sloppy about the legalities.  It wasn't until
the SCO case that he even started to consider an assignment policy.

Do you claim that companies do not distribute proprietary drivers for
Linux as binary modules without source?  I don't know of any offhand,
but I'm willing to bet it would not be hard to find them.  In
particular, I believe that many video drivers require proprietary
kernel modules (or at least they did back in the day).

    Edward> If these "law-abiding companies" distribute proprietary
    Edward> drivers that are derivative works they have infringed the
    Edward> copyright of whoever owns that part of the kernel they
    Edward> have linked to.

If you are right, that's true, but you can make a much stronger
statement.  They have infringed the copyright of every copyright
holder in the kernel.

    Edward> IANAL but from my understanding of copyright this is dead
    Edward> wrong.  My understanding is that international treaties
    Edward> relate to the existence of copyright but local laws
    Edward> dictate the scope of copyright.

I didn't say otherwise.  However, the treaties _do_ require
reciprocity in certain matters.  In particular, if the copyright is
registered in the U.S., then it exists for U.S. term everywhere AFAIK.
It is true that in Germany, for example, US authors can exercise their
"moral rights" as authors even though in the US they have transferred
their copyright.

    Edward> If what you are saying were true then most cases of
    Edward> software infringement would be tried under US law.

More cases _are_ tried under U.S. law than under any other.  :-)
However, you're missing an important point, which is that the remedies
if you win in a U.S. court are limited to what the U.S. can enforce.
If a company has no presence in the U.S., damages can be awarded but
(usually) not enforced.  Thus a plaintiff may have no choice but to
choose a different venue to get satisfaction.

However, if Dvico has a substantial US presence, AFAIK they can be
sued for the _worldwide_ damages, and if their US business is worth
enough, those damages awarded and enforced by a US court.

Cf. the Dmitri Sklyarov case, where Adobe had to wait until he came
to the U.S. to nab him.  And that was a criminal complaint.
(Unjustified, of course, but while sub judice it gave the
U.S. authorities more power of enforcement than a civil case would.)

-- 
School of Systems and Information Engineering http://turnbull.sk.tsukuba.ac.jp
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
               Ask not how you can "do" free software business;
              ask what your business can "do for" free software.