Encouraging closed source modules part 1: copyright and software

Proprietary kernel modules are flaky, out of date, and the bane of a Linux professional's existence--right? Maybe not. This three-part series makes a case for formalizing the uneasy truce between GPL-clean and "tainted" modules.

By Doug Hass, LinuxWorld.com, 12/06/06

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You see it sprinkled liberally in mailing lists and forum discussions: IANAL. “I am not a lawyer.” Of course, legal analysis often follows — sometimes well informed, but often wildly incorrect or outdated. Debates about GPL enforceability are no different. Copyright law, though, has evolved to shrink the gray areas significantly.

The open source community’s commercial and non-commercial members have debated the intellectual property issues surrounding the GPL and Linux for years, and even more now as the release of GPLv3 approaches. This process has led the Linux community to evolve its open source development model sensibly to accommodate realities of copyright law and the need to secure both significant commercial participation and widespread industry adoption. Erroneous ruminations about the legal effect of the GPL threaten to undermine this consensus. The GPL has its flaws and legal shortcomings, but the community has adopted a practical — if undervalued and oft-ignored — “gentleman’s agreement” that enables commercial participation in open source projects. This three-part series discusses the application of the Copyright Act to Linux, and kernel modules specifically.

How the Copyright Act handles software

For purposes of examining the GPL and Copyright Act, Linux has three different types of software: standalone applications running in kernel space or user space, the Linux kernel itself, and kernel modules that interconnect with the kernel through a system call interface. Each type of program presents a potentially different treatment under the GPL and Copyright Act. Of the three, the GPL and Copyright Act speak in black-and-white terms about the first two.

Standalone applications do not fall under the GPL or the Act’s definition of a “derivative work,” regardless of whether the applications run in user or kernel space. Provided the developer did not use GPL-licensed code to create it, no application merely running on an operating system can constitute a derivative work of that operating system.

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