Miles Nordin <car...@ivy.net> wrote:
> >>>>> "gd" == Garrett D'Amore <garr...@nexenta.com> writes:
>
> >> Joerg is correct that CDDL code can legally live right
> >> alongside the GPLv2 kernel code and run in the same program.
>
> gd> My understanding is that no, this is not possible.
>
> GPLv2 and CDDL are incompatible:
>
>
> http://www.fsf.org/licensing/education/licenses/index_html/#GPLIncompatibleLicenses
This URL contains a claim from a laymen - not a lawyer. It is based on a
questionable generalization and it lacks a legal proof.
The GPL in fact is "incompatible" with any license but "public domain" and the
latter license is not permitted in many jurisdictions (such as Europe).
The GPL mentions something called a "derivative work". Such a work is created
if _you_ by your own make changes to an existing program. As you are the author
of these changes, you have the permission to put it under GPL as the GPL
requires.
Unfortunately, the FSF likes to convince you that the only legal way to make
any change to a GPLd program is by creating a so called "derivative work".
This however cannot be done for several reasons:
1) You would need to declare other peoples code that you add to a GPLd work to
be your own changes, but this is in conflict with the Copyright law.
2) The GPL itself is in conflct with the US Copyright law, see:
http://www.osscc.net/en/gpl.html
The papers from the lawyers Lawrence Rosen, Tom Gordon and Lothar Determan
explain why a license like the GPL is in conflict with US Copyright law title
17 section 106:
http://www.copyright.gov/title17/92chap1.html#106
when it tries to redefine the law definition of a "derivative work".
Lawrence Rosen is the previous legal counselor of the OpenSource Initiative.
Tom Gordon is a US Lawyer living in Berlin and working three rooms to my left.
Lothar Determan is a professor of law at the Freie Universität Berlin and at
the University of San Francisco. BTW: 30% of the text from Lothar Determan is
legal proof and quotes.
3) All lawyers I am aware of that did publish reviews on the GPL confirm that
the only way to combine code from independent works is to create a so called
"collective work". This is even confirmed by the FSF friendly German lawyers
(for the special case of a new filesystem for Linux) that wrote the book "Die
GPL kommentiert und erklärt" and that work for Harald Welte (gplviolations.org).
> however Linus's ``interpretation'' of the GPL considers that 'insmod'
> is ``mere aggregation'' and not ``linking'', but subject to rules of
> ``bad taste''. Although this may sound ridiculous, there are blob
> drivers for wireless chips, video cards, and storage controllers
> relying on this ``interpretation'' for over a decade. I think a ZFS
> porting project could do the same and end up emitting the same warning
> about a ``tained'' kernel that proprietary modules do:
Linus is right with his primary decision, but this also applies for static
linking. See Lawrence Rosen for more information, the GPL does not distinct
between static and dynamic linking.
> http://lwn.net/Articles/147070/
A nice quote that explains the way Moglen acts in the public. His claims do not
contain a single legal proof. He still only made vague intimations that leave
it open whether Linus is right or not. Moglen is a politician, he tries to get
to a certain point he likes to reach and he does not include the current legal
situation in his talks. Take this interview as what it is: a political
statement but no legal claim.
People should be careful when listening to Moglen as he e.g. claims that people
can rightfully relicense a BSDld piece of code under GPL (without giving a
legal
proof as usual...). Let us check the legal situation:
Changing the license is a privileged act reserved to the Copyright owner.
Unless you have an explicit permission to do so, you can't. The BSDl does not
contain such an explicit permission, so you cannot change the license of other
peoples work distributed under BSDl.
Changing the license would also require the right to sub-license, but the BSDl
(similar to the GPL) does not give this right away. As a result, every user
always gets his permissions directly from the original copyright holder who put
the code under BSDl.
Given this background, even the BSDld drivers in Linux can only be legally used
by Linux if they form a "collective work" that is clearly permitted by the GPL.
The same would apply to a CDDLd driver in Linux.
And BTW: Moglen did even confirm to me in a private mail that the claims about
GPL/BSD and GPL/CDDL compatibility on the FSF website are wrong. As he did not
repeat this in the public, this proves the politician...
> the quickest link I found of Linus actually speaking about his
> ``interpretation'', his thoughts are IMHO completely muddled (which
> might be intentional):
>
> http://lkml.org/lkml/2003/12/3/228
Nice to see that Linus seems to know the legal background ;-)
Jörg
--
EMail:jo...@schily.isdn.cs.tu-berlin.de (home) Jörg Schilling D-13353 Berlin
j...@cs.tu-berlin.de (uni)
joerg.schill...@fokus.fraunhofer.de (work) Blog:
http://schily.blogspot.com/
URL: http://cdrecord.berlios.de/private/ ftp://ftp.berlios.de/pub/schily
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