"Derivative Work" for Software Defined

Ian Lance Taylor ian at airs.com
Fri Jan 17 21:17:06 UTC 2003

Andre Hedrick <andre at linux-ide.org> writes:

> > Think clearly.  The GPL does not claim ownership of your work.  It
> > merely puts conditions on distributing your work combined with GPL
> > work.  The question you are raising is whether #including a GPL header
> > file means that your work has been combined with GPL work.  I don't
> > think there is a definitive answer to that question.
> Without an answer, you leave all works in question.
> The very question becomes the barrier to allow or permit the distribution.
> If one is not sure, the distribution clause will be binding hook to
> capture the entire as GPL, the 'who' is anyone raising the issue.

Well, no, the ``who'' can only be the copyright owner of the work.
Nobody else has any standing.

> > (But I think there is a definitive answer for Linux, as opposed to
> > some arbitrary work under the GPL, so why are you still worrying about
> > this?)
> > 
> > > GPL states you can change and do whatever you want, provide you return the
> > > changes.
> > 
> > No, it doesn't.  Read it again.  The GPL has no requirement for
> > returning any changes to anybody.  If you distribute source alongside
> > your binaries, it has no requirement that you distribute source to
> > anybody else.
> One does not ship the source alongside the binaries, what does that mean?

Read the GPL, section 3.

> Here is a real case of a local NAS/SAN company in Fremont, CA.
> They have modifed my, and stated such to me they have, GPL drivers
> which I share copyright with the folks who came before me.  They ship and
> sell product based on that those works.  The do not ship source code with
> the product.
> In this real example above, are they in GPL and/or Copyright violation?

Based on what you say, they are presumably following GPL section 3b.
If they are not, they are violating the GPL, and the copyright of the
people who wrote the code they modified.

> > distribute just enough source code to be able to use your binary
> > modules, and you make the end-user build the source code.  As with all
> > these cases, nobody knows for sure whether it would be considered
> > legal or not.  I'm not aware that anybody has ever actually done it.
> Would you like a list of examples and the URL's to find and use them as
> examples?  Most of these effect my work in the open source world.  Most of
> these interfere or break the operations of my public works.
> Offline, I will disclose only.

If you know of people who are violating the GPL, I encourage you to
inform the copyright holders and the FSF.  See

> > Of course, I'm sure we're all clear that this has nothing to do with
> > anything you want to do, because Linux already clearly permits binary
> > modules.  Right?
> "Right?" is the suggestion it may not be.
> If it was bloody simple then I would not be seeking the answer for myself.
> Additionally if it is not legal, then all the vendors out there shipping
> product w/ binary modules are in violation and must be brought back into
> line.

Why are you not satisfied by Linus's clear statement?

It's true, as I believe Ken Aromdee pointed out, that because Linus
does not require copyright assignments, there are other copyright
holders involved.  However, I would think that anybody who tried to
make a claim would have a very hard time arguing that they did not
understand the terms under which Linus accepts patches.  (I personally
think Linus is making a mistake in not requiring copyright
assignments, but he has his reasons.)

Wearing my hat as a businessperson, if I were in a business of
distributing binary Linux loadable modules, I wouldn't worry about the
legal issues associated with the GPL (I might worry about other
issues, but not that one).  As I know from experience, software
businesses have much more serious IP issues to worry about in the
patent realm; mostly you just have to charge ahead and hope for the
best, since otherwise you will get nothing done.

Lawsuits are for huge corporations or for people with nothing better
to do.  There is no such thing as a lawsuit-proof business, and in any
case, for a small business, an unwarranted lawsuit is 90% as bad as a
reasonable one.  (In my last business, we burned way too much time and
money in an absurd real estate dispute; we won completely in the
end--for us, winning was getting free of the lawsuit, which was
started by the other two parties, and we won our legal fees--but
nothing will ever give us our time back.)

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