video cards

[Leo Mauler]

--- Luke -Jr <luke at dashjr.org> wrote:

> On Thursday 03 April 2008, Leo Mauler wrote:
> > --- Luke -Jr <luke at dashjr.org> wrote:
> > > On Thursday 03 April 2008, Leo Mauler wrote:
> > > > --- Luke -Jr <luke at dashjr.org> wrote:
> > > > > On Thursday 03 April 2008, Jeffrey Watts
> > > > > wrote:
> > > > > 
> > > > > > All significant parties - the guy that
> > > > > > wrote the GPL, the guy that wrote 
> > > > > > Linux - say what nVidia is doing is
> > > > > > okay, and that the issue isn't what 
> > > > > > they are doing, but is instead a 
> > > > > > limitation of the license itself.
> > > > >
> > > > > Greg, the guy I quoted earlier, is a 
> > > > > Linux developer and copyright holder.
> > > > > Furthermore, none of the developers nor 
> > > > > RMS are IP lawyers.  The only citation 
> > > > > of IP lawyers thus far in this 
> > > > > discussion has been that binary modules 
> > > > > are illegal.
> > > >
> > > > There's a legal term which you should 
> > > > become aware of: "estoppel".  In general 
> > > > it protects a party who would suffer
> > > > detriment if:
> > > >
> > > > * The defendant has done or said something 
> > > > to induce an expectation
> > > > * The plaintiff relied (reasonably) on the
> > > > expectation...
> > > > * ...and would suffer detriment if that
> > > > expectation were false.

> > Since Linus, and your favorite kernel developer
> > Greg Kroah-Hartman, have already signed off on 
> > giving ndiswrapper back its GPL status, it would 
> > seem that the "GPL wrapper for non-GPL code" 
> > option is alive and well and ACKNOWLEDGED BY 
> > GREG KROAH-HARTMAN. 
> 
> Again, NDISwrapper is legal because it is GPL. 
> The NDIS drivers are legal because they are 
> derived from the NDIS spec, and not NDISwrapper. 
> There is no comparison here.

The irony here is that up until Linus eventually
signed off on allowing ndiswrapper to use GPLONLY
symbols, Linus was arguing most strongly that
ndiswrapper was NOT GPL.

http://kerneltrap.org/node/1735

"ndiswrapper itself is *not* compatible with the 
GPL.  Trying to claim that ndiswrapper somehow 
itself is GPL'd even though it then loads modules 
that aren't is stupid and pointless. Clearly it 
just re-exports those GPLONLY functions to code 
that is *not* GPL'd."

When Linus eventually signed off on giving ndiswrapper
back its access to the GPL'd Linux kernel and GPLONLY
symbols, we get nVidia's enstoppel that Linus might
think that wrappers are non-GPL but he won't prevent
companies from using them with his GPL'd Linux kernel.
 Thats enough for nVidia to continue producing
binary-only Linux drivers, and for any Linux
distribution to distribute them in the CDs.

The obvious reason why most of them aren't
distributing binary-only drivers in their
distributions isn't the legal issue (which apparently
has been declared *not to exist* by the Kernel
Maintainers and Kernel IP Owners Linus AND Greg), its
the "non-free" issue.
 
> > Greg saw the change and acknowledged the change. 
> > Greg has thus given nVidia and any distribution 
> > which uses nVidia drivers (which use 
> > ndiswrapper-like wrappers to allow non-GPL'd 
> > code to work as legal Linux kernel modules) all
> > the "estoppel" they'll ever need in court.
> 
> No, nVidia's wrapper is nothing like NDIS. It 
> does not implement a generic API.  Anything 
> using nVidia's wrapper is inherently derived 
> from the wrapper, since there is no other 
> possible option they could conceivably be 
> derived from.

The other option you are dancing around is
"independently developed code".  nVidia did not
originally develop the drivers for Linux, thus Linus'
confusion about whether or not they violate the GPL.  

As Linus himself pointed out:

http://kerneltrap.org/node/1735

"But one gray area in particular [in the GPL] is 
something like a driver that was originally 
written for another operating system (ie clearly 
not a derived work of Linux in origin). At exactly 
what point does it become a derived work of the 
kernel (and thus fall under the GPL)?"

"THAT is a gray area, and _that_ is the area where 
I personally believe that some modules may be 
considered to not be derived works simply because
they weren't designed for Linux and don't depend 
on any special Linux behaviour."

...
...

"I think the NVidia people can probably reasonably 
honestly say that the code they ported had _no_ 
Linux origin."

> > > This exception is not applicable to them.
> >
> > This is also immaterial because the GPL merely
> > refers to "derived works", and Linus has already 
> > delivered an opinion that nVidia's binary-only 
> > drivers aren't "derived works":
> 
> Linus had nothing to do with writing nVidia's
> driver, so how would he know?

Doesn't matter much in law if you provide an
expectation to a plaintiff without knowing all the
details, as you've still provided the expectation to
the plaintiff.  Whether or not its accurate, Linus has
already provided nVidia the only legal defense
argument they'll ever need to win.

Greg appears to be signing off on Linus' assumption
about binary-only wrappers, so it appears even your
expert witness sees no legal issues either.

You don't have to be an IP Lawyer before your opinion
about your own IP counts in court.  Obviously not
consulting an IP Lawyer first is a mistake on your
part, but it is not something which can allow you to
retract any statements you make about your own IP.

> Besides, the infringing part is their source 
> wrapper, not the binary blob.

And source wrappers can be infringing without being
banned from the kernel, as Linus' and Greg's
"enstoppel" messages have indicated regarding
ndiswrapper.  Linus' opinion that ndiswrapper is
non-GPL by definition is enough to make it entirely
relevant to nVidia's wrapper, especially as he and
Greg allow both wrappers to work with the Linux kernel.


      ____________________________________________________________________________________
You rock. That's why Blockbuster's offering you one month of Blockbuster Total Access, No Cost.  
http://tc.deals.yahoo.com/tc/blockbuster/text5.com