Re: [tlug] GPL and Linux in Dvico Tivx

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

>>>>> "Jim" == Jim  <jep200404@example.com> writes:

    Jim> How can one legally ship a product that links a proprietary
    Jim> driver to a GPL kernel?

By putting it in a loadable module.  (This is presumably moot, in this
case.  I assume that in an embedded device it's statically linked, of
course, and that does not allow you the advantage of this exception---
you must use the published module ABI.)

Stallman and Torvalds had a dustup about this.  Linus, to his credit
IMO, has no ethical problem with proprietary drivers although he does
warn that you lose the technical benefits of OSS.  However, Stallman
is the authority on the intent of the GPL (which is to suck up as much
code under copyleft as legally allowed), and his lawyer says that
dynamic linking into the same process space[1] does create a derived
work.  ISTR that there is plenty of case law that shows that is true
(in the US).  To Linus's shame, he did not (AFAIK) codify this special
exception in a document, he maintained that it was his
"interpretation" of the GPL.  I would very much like to know about
such a document, if there's one in the kernel sources.

    >> It looks like they wrote their own audio and video players, no
    >> doubt optimised for the ARM CPU and the framebuffer the thing
    >> has.

    Jim> Let's _hope_ that they indeed wrote their own drivers,
    Jim> instead of just using proprietary drivers from the codec
    Jim> manufacturers. Then if they linked said optimized drivers
    Jim> with the GPL kernel, they can be _compelled_ to release the
    Jim> source code.

No, they cannot.  They can only be compelled to withdraw the product,
since the GPL is a shrinkwrap license.  I would think there would be
room for financial damages, but I don't think the FSF has ever pressed
for them.  The statutory damages are intimidating, though.

    Jim> Nuts! fipm.o and khwl.o are by a third party, Sigma Designs
    Jim> Inc., so if fipm.o and khwl.o are linked with GPL code by
    Jim> someone other than Sigma Designs Inc., then disclosure of
    Jim> source code can not be compelled.

Disclosure can never be compelled under US law.  It might be
negotiated under threat of punitive damages, of course.

    Jim> Is shipping customers a product without code and having
    Jim> customers download infringing code some trick for shifting
    Jim> infringement to customers?

No.  Recipients of the code cannot infringe the GPL, as only
distribution is covered by the license conditions.


Footnotes: 
[1]  An unclear concept for the kernel, in principle.  I don't know if
it is clarified in statute or case law.

-- 
School of Systems and Information Engineering http://turnbull.sk.tsukuba.ac.jp
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
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              ask what your business can "do for" free software.