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On one hand a court decision would solve it once and for all on the other hand who the hell are we gonna find that A) is actually qualified to judge this sort o

On one hand a court decision would solve it once and for all on the other hand who the hell are we gonna find that A) is actually qualified to judge this sort of thing B) doesn't have a vested interest in one way or another. On the gripping hand it wouldn't actually solve anything because lawyers will continually argue that this case isn't covered by that precedent.

dsp1234 11y ago
This is a copyright issue just like any other. Thus the normal court system should be able to make a decision one way or the other. If the reality is that literally no one is capable of adjudicating this issue, then there is literally no teeth to the GPL since who could make a decision on it. I believe that's not really the case though. And of course lawyers are always going to argue, that's literally their job after all. However, having some actual solid ground here would be helpful since "exceptions" abound, and it's basically "if we like you or we're forced to do because you have market power (nvidia), then it's totally cool". Land on the wrong side of that and you're getting bashed (again note the difference between Canonical distributing zfs vs nvidia's graphics binary).
- Dylan16807 11y ago
  >If the reality is that literally no one is capable of adjudicating this issue, then there is literally no teeth to the GPL since who could make a decision on it. Not true at all. Most claims of GPL violation are very straightforward.
  - dsp1234 11y ago
    True, but we were not discussing general GPL violations. But specifically the murkiness of the binary kernel module 'exceptions' (or if they are not actually derivative works in the first place, and thus not really 'exceptions', but rights). That's what 'this issue' refers to above.
    - Dylan16807 11y ago
      I'm aware of what you meant by 'this issue'. But you claim that if "no one is capable of adjudicating this issue" then there are "literally no teeth to the GPL". That is nonsense. Binary modules that may-or-may-not derive from open source programs are an edge case. The GPL can do many useful and powerful things without touching that edge case.
      - dsp1234 11y ago
        I didn't claim that at all. The other poster stated a partial argument that "who the hell are we gonna find that A) is actually qualified to judge this sort of thing". I then stated that IF literally no one was able to adjudicate it, then there would no teeth to the GPL (since anyone who wanted non-compliance would just binary kernel module everything). In other words, for the sake of argument, I was granting the other poster their position, and stating the outcome of that line of logic. Then I immediately disagreed with the base assumption saying "I believe that's not really the case though.". Continuing the other poster's logical line (again, even though I disagree that a court could not settle the issue), if at some point a court came down and said, "Regardless of the text of the GPL itself, it is completely legal to link binary blobs against the linux kernel, and that linking does not create a derivative work", then the result of that line of reasoning would end in a weakening of the GPL because it would allow companies to 'lock away' the source code in direct opposition to the spirit of the GPL. Also note, that if the courts said something like "We cannot find any person in the entire world who is qualified to judge this issue", then it would have the same effect because abusers of the GPL would know that enforcement was not a possibility (thus the GPL losing it's teeth). I think it's hard to argue that if (in the counterfactual world where there was no one qualified to judge the violation) it would be possible to enforce copyright on the GPL. Happily, we don't live in that world.
        Dylan16807 11y ago
        > I then stated that IF I kept that "if" in my wording. I disagree with the line of logic. No matter what you think of the premise. > (since anyone who wanted non-compliance would just binary kernel module everything) Even if binary modules made you immune to the GPL, there are a lot of things the GPL would still do. It would not be toothless. On top of that, the issue here is binary modules that questionably derive from open source code. If you make a binary module that unambiguously derives from open source code, that would still be an easy question for the courts. That's why this is an edge case that remains an edge case, even in an alternate reality where the courts literally cannot decide on zfs.ko or nvidia.ko
mbreese 11y ago
I think the hard part would be to find someone with standing to sue. Finding a court would be easy. Who really has standing in this case? Maybe Oracle could sue Canonical? Or perhaps a kernel developer could sue Canonical? (although that seems unlikely to me)
- dsp1234 11y ago
  One would assume that Canonical would be sued, and basically any individual kernel contributor (or someone like the SFC) could do it. I agree it's unlikely, which is why I hoped for a court case, because it's just another 'exception' to the rule otherwise.
- dragonwriter 11y ago
  In the very article here, the SF Conservancy claims both to have a legal basis to sue and willingness to do so, though the intention to do so only as a last resort.
  - mbreese 11y ago
    I guess they would have standing here... From: https://sfconservancy.org/copyleft-compliance/ https://sfconservancy.org/copyleft-compliance/ In May 2012, Conservancy launched the GPL Compliance Project for Linux Developers, which handles compliance and enforcement activities on behalf of more than a dozen Linux copyright holders. The GPL Compliance Project for Linux Developers is comprised of copyright holders in the kernel, Linux, who have contributed to Linux under its license, the GPLv2. These copyright holders have formally asked Conservancy to engage in compliance efforts for their copyrights in the Linux kernel. In addition, some developers have directly assigned their copyrights on Linux to Conservancy, so Conservancy also enforces the GPL on Linux via its own copyrights in Linux. Although one wonders if copyright holders ever thought that they'd be suing a Linux company like Canonical...
dragonwriter 11y ago
> On one hand a court decision would solve it once and for all on the other hand who the hell are we gonna find that A) is actually qualified to judge this sort of thing In the US, any federal judge in a court where venue is appropriate for whatever claim is filed. Apply the derived works rule in copyright law is certainly something they are qualified to do. > B) doesn't have a vested interest in one way or another. Same answer as above. > On the gripping hand it wouldn't actually solve anything because lawyers will continually argue that this case isn't covered by that precedent. While perhaps it will remain unsettled in a particularly strained binary sense in that someone, somewhere will be willing to argue against it -- in that sense, nothing is ever settled -- there is such a thing as fairly settled areas of law covered by fairly clear precedent where actors in the market generally do accept the existence of certain rules without challenging them, because the low probability of success in a challenge isn't worth the cost of challenging the rule. (Pretty much the only places where precedential decisions have only a weak effect on settling things is highly politically salient cases where opponents of the decision have a significant role on the judicial selection process, so a constant flow of cases seeking -- with some hope of success -- to overturn the existing rules are generated. But, even then, it usually requires actors with virtually unlimited supplies of other people's money (such as US states) on the side seeking to overturn the rules to keep up the flow; one place you see this is in the area of abortion rights. But I don't really see a major political party having a key constituency that is as concerned with any position on derived works rules as the "pro-life" movement is on restricting abortion.)

dsp1234 11y ago

This is a copyright issue just like any other. Thus the normal court system should be able to make a decision one way or the other. If the reality is that literally no one is capable of adjudicating this issue, then there is literally no teeth to the GPL since who could make a decision on it. I believe that's not really the case though. And of course lawyers are always going to argue, that's literally their job after all. However, having some actual solid ground here would be helpful since "exceptions" abound, and it's basically "if we like you or we're forced to do because you have market power (nvidia), then it's totally cool". Land on the wrong side of that and you're getting bashed (again note the difference between Canonical distributing zfs vs nvidia's graphics binary).

Dylan16807 11y ago
>If the reality is that literally no one is capable of adjudicating this issue, then there is literally no teeth to the GPL since who could make a decision on it. Not true at all. Most claims of GPL violation are very straightforward.
- dsp1234 11y ago
  True, but we were not discussing general GPL violations. But specifically the murkiness of the binary kernel module 'exceptions' (or if they are not actually derivative works in the first place, and thus not really 'exceptions', but rights). That's what 'this issue' refers to above.
  - Dylan16807 11y ago
    I'm aware of what you meant by 'this issue'. But you claim that if "no one is capable of adjudicating this issue" then there are "literally no teeth to the GPL". That is nonsense. Binary modules that may-or-may-not derive from open source programs are an edge case. The GPL can do many useful and powerful things without touching that edge case.
    - dsp1234 11y ago
      I didn't claim that at all. The other poster stated a partial argument that "who the hell are we gonna find that A) is actually qualified to judge this sort of thing". I then stated that IF literally no one was able to adjudicate it, then there would no teeth to the GPL (since anyone who wanted non-compliance would just binary kernel module everything). In other words, for the sake of argument, I was granting the other poster their position, and stating the outcome of that line of logic. Then I immediately disagreed with the base assumption saying "I believe that's not really the case though.". Continuing the other poster's logical line (again, even though I disagree that a court could not settle the issue), if at some point a court came down and said, "Regardless of the text of the GPL itself, it is completely legal to link binary blobs against the linux kernel, and that linking does not create a derivative work", then the result of that line of reasoning would end in a weakening of the GPL because it would allow companies to 'lock away' the source code in direct opposition to the spirit of the GPL. Also note, that if the courts said something like "We cannot find any person in the entire world who is qualified to judge this issue", then it would have the same effect because abusers of the GPL would know that enforcement was not a possibility (thus the GPL losing it's teeth). I think it's hard to argue that if (in the counterfactual world where there was no one qualified to judge the violation) it would be possible to enforce copyright on the GPL. Happily, we don't live in that world.
      - Dylan16807 11y ago
        > I then stated that IF I kept that "if" in my wording. I disagree with the line of logic. No matter what you think of the premise. > (since anyone who wanted non-compliance would just binary kernel module everything) Even if binary modules made you immune to the GPL, there are a lot of things the GPL would still do. It would not be toothless. On top of that, the issue here is binary modules that questionably derive from open source code. If you make a binary module that unambiguously derives from open source code, that would still be an easy question for the courts. That's why this is an edge case that remains an edge case, even in an alternate reality where the courts literally cannot decide on zfs.ko or nvidia.ko

mbreese 11y ago

I think the hard part would be to find someone with standing to sue. Finding a court would be easy. Who really has standing in this case? Maybe Oracle could sue Canonical? Or perhaps a kernel developer could sue Canonical? (although that seems unlikely to me)

dsp1234 11y ago
One would assume that Canonical would be sued, and basically any individual kernel contributor (or someone like the SFC) could do it. I agree it's unlikely, which is why I hoped for a court case, because it's just another 'exception' to the rule otherwise.
dragonwriter 11y ago
In the very article here, the SF Conservancy claims both to have a legal basis to sue and willingness to do so, though the intention to do so only as a last resort.
- mbreese 11y ago
  I guess they would have standing here... From: https://sfconservancy.org/copyleft-compliance/ https://sfconservancy.org/copyleft-compliance/ In May 2012, Conservancy launched the GPL Compliance Project for Linux Developers, which handles compliance and enforcement activities on behalf of more than a dozen Linux copyright holders. The GPL Compliance Project for Linux Developers is comprised of copyright holders in the kernel, Linux, who have contributed to Linux under its license, the GPLv2. These copyright holders have formally asked Conservancy to engage in compliance efforts for their copyrights in the Linux kernel. In addition, some developers have directly assigned their copyrights on Linux to Conservancy, so Conservancy also enforces the GPL on Linux via its own copyrights in Linux. Although one wonders if copyright holders ever thought that they'd be suing a Linux company like Canonical...

dragonwriter 11y ago

> On one hand a court decision would solve it once and for all on the other hand who the hell are we gonna find that A) is actually qualified to judge this sort of thing In the US, any federal judge in a court where venue is appropriate for whatever claim is filed. Apply the derived works rule in copyright law is certainly something they are qualified to do. > B) doesn't have a vested interest in one way or another. Same answer as above. > On the gripping hand it wouldn't actually solve anything because lawyers will continually argue that this case isn't covered by that precedent. While perhaps it will remain unsettled in a particularly strained binary sense in that someone, somewhere will be willing to argue against it -- in that sense, nothing is ever settled -- there is such a thing as fairly settled areas of law covered by fairly clear precedent where actors in the market generally do accept the existence of certain rules without challenging them, because the low probability of success in a challenge isn't worth the cost of challenging the rule. (Pretty much the only places where precedential decisions have only a weak effect on settling things is highly politically salient cases where opponents of the decision have a significant role on the judicial selection process, so a constant flow of cases seeking -- with some hope of success -- to overturn the existing rules are generated. But, even then, it usually requires actors with virtually unlimited supplies of other people's money (such as US states) on the side seeking to overturn the rules to keep up the flow; one place you see this is in the area of abortion rights. But I don't really see a major political party having a key constituency that is as concerned with any position on derived works rules as the "pro-life" movement is on restricting abortion.)