I have been involved in numerous discussions with a variety of folks,
including Bruce Perens regarding the new policy governing kernel drivers
created for specific hardware/features and the Linux Foundations position
on proprietary hardware drives.  I have attempted to contact the FSF and
discuss this with them and they have refused to respond to letters or
return telephone calls to discuss this topic (I do not believe this is the
result of malice on their part or some conspiracy -- I think its just too
complex a question for them to address at the present time).

The consensus opinion from Bruce and others seems to be that applications
that use normal system services on Linux do not appear to be involved in
GPL related issues.  Additionally, there seems to be agreement that end
users (i.e. consumers) who are the targeted end point of distribution are
not under any GPL restraints provided they are not involved in
distribution.  In other words, someone who downloads Linux then downloads
a custom binary driver and combines the two pieces for their own use is
not constrained by the GPL since if it did place constraints on consumer
use, it would violate the Latham Act and other anti-trust laws since it
would be targeting consumers with restrictive covenants and price fixing.

THE QUESTION

I have carefully examined FUSE and file system drivers and this appears to
meet the definition of user space derived applications also unconcerned
with the GPL.  I need to know if this is the understanding of the actual
copyright holders of Linux regarding FUSE or if FUSE is considered a user
space application or if it is considered a part of the kernel.

Our analysis indicates separately distributed binary drivers are not
concerned with the GPL provided they are not distributed with Linux or
derived from it (I have a hard time understanding how a driver written for
a kernel OS cannot be considered "derived" from Linux, but apparently it
is not provided it uses none of the Linux code or ...
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The position statement on closed-source Linux Kernel Modules was
deliberately not a "policy statement", nor did it talk about issues
about what is or isn't legal.  This was deliberate.  Issues over
whether or not the GPL covers binary modules fundamentally depend on
individual legal jourisdictions' interpretations of copyright law and
derivitive works, and that was something which the kernel developers
who worked on the language of said joint position statement

If you need legal advice, you need to pay a lawyer to apply the facts
of the your particular situation to the law, in a particular legal
jourisdiction, and then give you official legal advice.  Opinions by
kernel developers aren't particularly useful here, and is off-topic
for this mailing list.

The intent of the copyright owners is fairly clear; most of the kernel
(exceptions are noted on a handful of source fils) is to be licensed
under the terms of the GNU Public License, version 2.  There is
another long-standing assertion by Linus in the COPYING file:

   NOTE! This copyright does *not* cover user programs that use kernel
 services by normal system calls - this is merely considered normal use
 of the kernel, and does *not* fall under the heading of "derived work".
 Also note that the GPL below is copyrighted by the Free Software
 Foundation, but the instance of code that it refers to (the Linux
 kernel) is copyrighted by me and others who actually wrote it.

Given that FUSE drivers communicate to the kernel via /dev/fuse and
normal system calls, you can draw your own conclusions.  (However,
most FUSE userspace drivers do utilize libfuse, which available under
an LGPLv2 license.  If you are using Windows-based source code, and
linking it against an LGPLv2 license, there may be issues there as
well.)

All of this is not legal advice, however; if you want real legal
advise, you need to ask a lawyer, not the FSF, and not LKML.

		    	    	  	      - Ted
--

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Thanks Ted,

I have spoken to lots of lawyers about this and to be honest they were
pretty much clueless since the real issues involve definitions about what
technologies are covered in the user space exemptions and which are not,
and your conclusions seem right on the money.   I was advised to ask the
copyright holders their opinions, since this is very much a subjective
determination based upon knowledge of technologies and where the line are
drawn.  The legal issues are well understood -- the definitions on which
technologies are classified as user space vs. kernel and which enjoy the
exemptions and which do not are very much at the discretion of the
copyright holders.

You have eloquently answered the question.  FUSE drivers are under the GPL
and are off limits unless you plan to open source them.  Distributors
linking against Linux also sound like they are off limits too.  Given the
response, Windows Executables installed and linked by a customer are not
prohibited nor is the use of any other consumer of Linux (which is what
the lawyers have told me).

Thanks for the clarification.    I moved this thread to the FUSE list, but
to be honest, it sounds like FUSE is not the way to go.    Free BSD sounds
like the way to go moving forward for these areas.

Thanks,



--

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On Sun, 28 Sep 2008 15:45:36 -0400

This, of course, means you may want to ask your lawyer to
make sure to which countries binary only kernel modules can
be distributed and in which countries they are definately
illegal.

Then you can put some access control in place on your web
site to make sure people from countries where binary only
kernel modules are illegal cannot download your drivers.

Of course, what to do with the countries where the answer
to the question is not clear cut is up to you...

Investigating a few hundred jurisdictions could be a fair
amount of work, but if you want to be absolutely sure there's
not much else you can do.

-- 
All rights reversed.
--

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Rik,

I do not distribute anything outside of the US, and nothing I offer as
downloads is binary without sources.  My website at wolfmountaingroup.org
is open source only, and I feel I am doing my part to the OSS empire in
putting out a kernel debugger and a bunch of other stuff for free.

Ad for countries with anally retentive laws about binary drivers, it
sounds like places no one wants to pay for stuff anyway so I doubt any of
my business associates have any interest in distributing in these
jurisdictions.

The other stuff, including file systems is for commercial companies and
it's not on my website, nor do I distribute it.  I ported the proprietary
file systems over to Free BSD over the summer.  Linux had some advantages
because it has better overall driver support for newer hardware, but the
newer desktops on FreeBSD that are out have left Linux in the dust, and
Free BSD has finally started to catch up to Linux.

One nice thing about putting out a kernel debugger is it gives me a unique
view into the numbers and status developers working on Linux -- and it's
shrinking from the download patterns and the types of folks downloading
it.

Linux is pervasive, but based upon my observations, development is
declining and almost non-existent in commercial companies except for a
small handful of companies.  I do not believe that Free BSD or some other
Unix is going to replace Linux, but what I see happening is a loss of
interest in Unix platforms generally.

M$ has won, again, and not because they are better or have better products
(Linux is tons better than Windows and a lot easier to develop on), but
because there still is simply nothing else out there that is better or
competes well in their space.

Jeff







--

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You're assuming that your metrics of people downloading your kernel
debugger is an accurate way of measuring how many people are

You may find these research reports interesting:

http://www.linuxfoundation.org/publications/linuxkerneldevelopment.php
http://www.linux-foundation.org/publications/IDC_Workloads.pdf

The former shows that the development rate is if anything, increasing
based on analyzing the rate that changes are flowing into the Linus's
git tree --- something which I think everyone would agree is a better
way of measuring the rate of development than the number of downloads
of mdb.

The latter is a report from IDC which calculates total enterprise
spending in the Linux ecosystem at $21 billion in 2007, and predicts
that by 2011 the figure will more than double to $49 billion.

So the health of Linux, both in terms of the rate of development and
the enterprise server ecosystem, seems to be doing quite well (never
mind the surge of interest of Linux for mobile platforms).  But if you
want to develop on FreeBSD, hey, don't let us stop you.  Different
licensing strokes for different folks, after all...

Regards,

						- Ted
--

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Hi Ted,

The figures I am quoting are based on who is downloading not how many.  I
had over 27,000 downloads the first week but only a few of them were from
fortune 1000 of 500 companies.  After two weeks it dropped off sharply to
a very low level.  Most of the downloads are still from my primary
servers, and not google or sourceforge.  I agree Linux is pervasive and
its use is increasing among the US customer base, but its interest from
technology companies (distributors) is declining.

This is usually the first sign.  You have to remember, I was at Novell in
its heyday and I watched the trends.  Novell's customer base was steadily
increasing long after the company lost its lead and started its decline. 
The first sign is lack of interest in new development, not lack of
interest in using it.   This is reflected in the lack of innovation
occurring at present in Linux (how many ways can you serve up unix?).

The numbers you are quoting are tied to hardware sales and deployment
where software is just some free gizmo tossed on the server -- I do not
consider them representative of Linux itself.

The GPL and its advantages for the success of Linux can be liked to the
theory of http://en.wikipedia.org/wiki/Antagonistic_pleiotropy_hypothesis
in biology.  The GPL conferred distinct advantages to Linux its early
development but now that the platform is mature, it is manifesting in
other ways --most of them deleterious.  Who wants to develop software
under the GPL for commercial use when you have people who sit around on
their ass and file lawsuits (I should talk) against people using for
example busybox so they can be lazy and extort money out of folks?  That's
where GPL in general seems to be headed.  I cannot convince any investors
to put a plug nickle into Linux anymore because there's no profit model
that works for software only businesses or even hardware businesses if you
add technology.  The danger of a rabid FSF lawsuit is too great.

Don't get me wrong, I love working on ...
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Yep.  Business is risky and hard.

Eric
--

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Jeff

--

[ message continues ]

Noone cares about mdb, so there must be something wrong with
Linux. Oh, right.

-- 
(english) http://www.livejournal.com/~pavelmachek
(cesky, pictures) http://atrey.karlin.mff.cuni.cz/~pavel/picture/horses/blog.html
--

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