[Celinux-dev] How to protect intellectual property while maximizing open source usage?

[Preece Scott-PREECE]

Hi, Shawn,
 
(1) On kernel modules, several other people have said pretty sensible
things, including pointing to the Greg KH presentation, which is
definitely what the mainstream kernel community believes the rules are.
 
Of course, Greg's not a lawyer, and the question of whether kernel
modules are derivative works has never been addressed in court. It's not
clear what the answer would be. If you go that way, you risk being a
test case. I agree that it might be difficult to find someone who had
standing to sue you - it would probably have to be someone who held
copyright on the specific interfaces you used, not just anyone with code
in the kernel. And interfaces might be judged to be functional, rather
than expressive, and not covered by copyright whether they're marked as
"GPL-only" or not. 
 
On the other hand, do you really want to be a test case and have the
community look on your company as one that tries to break the rules and
operates outside the spirit of the community?
 
(2) The only acceptable way to differentiate is to move your special
stuff outside the kernel - either move it to user space or move it out
to another component that communicates with the kernel. Note that you
still may be in the scope of the GPL in the latter case, because the GPL
requires that you use the GPL for anything that is packaged with the
kernel and is designed to work closely with it. You would need to use
some kind of really generic communication mechanism. If your code could
be made to work, unchanged, with some other OS, that would be a good
argument against a claim that it was a derivative work.
 
Moving to user space, however, is probably safe regardless. I think
there's a reasonably strong agreement that stuff running in user space
doesn't need to be GPL.  However, even there you could get into trouble
if you modified the kernel to open up a faster/quicker pipe between the
kernel and user space. You're really safe only as long as you stick to
the standard syscall interfaces; even sysfs interfaces are arguably too
intimate with the kernel to provide the necessary isolation.
 
Running wholly outside Linux, however, is probably safe. If you have a
separate processor, or if you're running on a microkernel that Linux
also runs on (that is, if you've done virtualization outside Linux,
rather than inside it), that external stuff is pretty clearly separate
from Linux and GPL issues.
 
(3) If the library is GPLed, and you intend to release your product as a
whole (already linked), you're basically stuck with releasing your code
as GPL. If you're releasing unlinked object code to be linked with a
dynamic library, you might get away with it if the library happens to
implement a standard API, but if you linked against header files
provided by the GPLed library, which you would probably have to, then
you're stuck with releasing your code under GPL.
 
My best advice is to not try to work around the rules. The whole point
of community development is that sharing the IP allows the whole to
improve much faster than any one participant could.  By exposing your
source code, you allow others to build on it - to improve it and find
problems in it. The kernel community considers that open interaction to
be the cost of using the work that the other members have done in
producing the kernel.
 
Note that IANAL and the opinions here are my own and do not represent my
employer.
 
Regards,
scott


________________________________

	From: celinux-dev-bounces at tree.celinuxforum.org
[mailto:celinux-dev-bounces at tree.celinuxforum.org] On Behalf Of Shawn
Kwon
	Sent: Tuesday, September 05, 2006 10:09 PM
	To: celinux-dev at tree.celinuxforum.org
	Subject: [Celinux-dev] How to protect intellectual property
while maximizing open source usage?
	
	

	How to protect intellectual property while maximizing open
source usage?

	 

	Well, this topic is not a new one but it is an important part
when developing a product.

	 

	To ease the discussion, here are brief question-style arguments.

	 

	1. Should linux kernel module be released under GPL? (Simple
question. :-))

	 

	2. If the kernel module should be GPL, then how can I
differentiate the operating system-related part of my product?

	 

	3. How can I legally develop my application using GPL'd library
with keeping my application code proprietary?

	 

	I hope many people can share their views and experiences. I will
post my opinion also soon.

	 

	/Shawn

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