Encouraging closed source modules part 3: elimating the "API update tax"

Unstable driver APIs, thought to be one of Linux's strengths, impose costs on both proprietary and GPL developers.

By Doug Hass, LinuxWorld.com, 12/11/06

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Richard Stallman, the Free Software Foundation, and other GPL supporters have a logical and reasonable attraction to copyright law. Copyright is simple: even a moment of poetic inspiration jotted down on the back of a cocktail napkin automatically gains copyright protection. Developers do not have to file paperwork or go through an expensive, time-consuming process to protect their work. The innovative, if legally questionable, construct of the GPL enables the Linux community to return, at least partially, to the collaborative environment Stallman enjoyed in his early MIT days.

At the same time, though, copyright offers the weakest of protections: it covers only narrowly defined expressions. Both independent authorship (the “clean room”) and compatibility provide future developers with defenses to infringement of the original work. Unless a copyright holder can prove plagiarism of copyrightable elements of source code, the Copyright Act will offer only narrow protection. In practice, the plagiarism protections in copyright law have their own special problems when applied to software, too. While there is no chance that an author would accidentally create a near-verbatim version of this story, the structure of programming languages dictates a different result in the software realm. A group of 10 developers working independently to create a Linux kernel module that prints the text message “Hello, world” when loaded would undoubtedly create 10 nearly identical modules.

In the proprietary software world, copyright strikes a perfect balance between protection and innovation. Under Altai and the cases that followed, copyright holders get protection from those who effortlessly plagiarize their code. At the same time, developers retain a strong incentive to author new works and compete, because the cases provide broad protection for both independent invention and compatibility.

The GPL strikes that same perfect balance. The Debian project’s use of “free” (fully GPL-licensed) and “contrib” and “non-free” (non-GPL licensed) archives provides an excellent example of the ability of closed and GPL code to coexist to the benefit of Linux users and developers worldwide.

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