No-one is probably interested in this anymore, however if anyone out there is curious (like me) then here's an update!

I received a reply from the Free Software Foundation in regards to the GPL issue.

However because I have not heard back since my reply, I thought I may as well post my reply back to FSF so you can read both. It will be hard to read, but the lines with ">" are the original FSF email (bolded), and the other text is my reply to them (italicised).

In essence, FSF believes that the drivers ARE a violation but that there are special considerations for Linux. Once again, no actual evidence was provided, so I replied asking for some :)

I have also emailed the original kernel developer who contacted me to ask him primarily for two things:
1) Evidence to support his claim
2) What part of the kernel is under his copyright that it is violating

I have not heard back yet, but hope to soon.

Here's the FSF email:

> Dear Chris,
Hi [name taken out],
Thank you very much for taking the time to get back to me.

I have some questions below I am hoping you, or someone, can answer for me so that I can get some clearer understanding as to why they are a violation.

> I'm very glad to see that you're taking licensing issues seriously, and
> I understand your frustration at getting clear answers in this regard.
> It's unfortunate that legal housekeeping can do so much to hinder good
> development work.
It sure can :) But I do want to make sure that I am doing the right thing.

> Let me address some of your concerns as they regard the GNU GPL
> generally. Later, I'll discuss some complications that are specific to
> Linux -- I'm afraid they make it impossible to provide you with a
> definitive answer to your questions.
OK

> We believe that kernel modules are derivative works of Linux.
Can you explain WHY you believe the kernel modules are derivative works of Linux? What actually makes them a derivative work?

>If there
> weren't any special licensing considerations for Linux, we would say
> that those modules must adhere to the requirements set forth in the GPL.
So is this due to your understanding that they ARE derivative works, and therefore also have to be GPL? I would certainly agree that if they ARE derivative works then they need to be under the GPL too.

> In particular, this means that they, too, would be licensed under the
> GPL, and users would be able to obtain source when the work is
> distributed in binary form. In such a case, if there were binary-only
> modules, we would say they were violating Linux's license, along with
> anybody who was distributing them.
Would you be able explain why a binary-only module violates the license? Or is this assuming that the binary modules are a derivative work (and therefore linked to the question above?).

> Unfortunately, there are special considerations for Linux that muddy the
> waters. Linus Torvalds has made statements which suggest that, for
> whatever reason, he does not believe that modules which use certain
> kernel interfaces are subject to the GPL's requirements.
I believe this is because the drivers were not specifically written for Linux, and make no Linux specific calls (http://kerneltrap.org/node/1735).

> Some kernel
> developers apparently agree with him. Others do not: I was at OSCon
> last year, and I saw Greg Kroah-Hartman give a quick presentation about
> kernel development where he flatly stated that binary modules are
> illegal.
Is this presentation available? I'd love to understand why he says the binary modules are illegal. Everyone has a point of view, but I want to know the reasons why, and am after actual evidence.

>It's not clear whether or not Linus' relaxed restrictions are
> meant to apply to the entire Linux kernel, or just his contributions to
> it.
I would assume that he cannot speak for the copyright of code owned by other developers. But perhaps he does have some sort of overriding power because "Linux" is his trademark, I don't know. Even if he disagrees on behalf of "Linux" I think that individual developers have the right to enforce their own copyright. Of course it would have to be a part against which the violation is occurring. Surely iptables cannot lay claim to a violation from a video driver if it has nothing to do with his code?

>Many people would like clarification in this area, but the
kernel
> developers seem intent on leaving things fuzzy for now. It generally
> seems like they're moving towards prohibiting binary modules, however.
Whether they want to prohibit binary modules or not is up to them I guess, I'm merely interested in a GPL violation. If it's a binary module or not, I'm just interested in HOW the module violates the license.

> As we discuss at
> <http://www.gnu.org/licenses/gpl-faq.html#WhoHasThePower>, when a
> program is GPLed, one who its copyright holder is the can enforce the
> license. This means that if the copyright holder wants to provide
> exceptions to the GPL's terms, they can do that, and it can be legally
> binding. So statements like Linus' have the potential to provide
> developers with permissions they may not have had otherwise.
Thanks for that information. I guess it comes down to how much authority Linus himself has over the entire kernel. If the modules violate the GPL using a part of HIS code, and he has excused it, then I guess that's ok. Strange.

> It also means that for a program with many copyright holders, like
> Linux, it's at least conceivable that any single one of them could hold
> you accountable for license violations, and that they may not intend for
> their work to have exceptions in the GPL's requirements, like Linus
> apparently does.
Surely they can only lay claim to a violation if it is against their code? But I guess it needs some clarification on the copyright of Linux as a whole, and whether one single piece of code entitles that author to have copyright on the entire Linux code. If that is the case, there is bound to be lots of conflicts. If it comes down to whoever has the copyright on a particular piece of code, that might be easier. Who would know the answer to such an issue?

> As such, the kernel developer who wrote to you may be
> within his rights to request that you stop distributing a kernel that
> uses binary modules. It's undeniable that the safest course of action
> for you, as far as license compliance is concerned, is to avoid using
> kernel modules that don't comply with the terms of the plain GPL.
But this is exactly the problem. I need to know whether they indeed DO or DON'T comply. Someone's word that they do cannot hold, there must be evidence. So how do I know that they don't comply with the terms of the plain GPL?

> If
> you can get all the kernel developers to say that you're allowed to
> distribute the work with binary modules, then you're in the clear, but I
> don't think you'll get that.
Sure :) and I'm not even interested. If it is a violation then I won't release another, and I won't seek permission, and I won't try and find a way around it.

> I cannot explain why this developer has not gone after other
> distributors that include binary modules, or after ATI and nVidia
> directly. You would have to ask him yourself. However, legally
> speaking, he is allowed to be as selective as he likes in his copyright
> enforcement, even if it seems like he's choosing poor targets. Perhaps
> he's trying to establish precedent to get the attention of larger
> organizations.
Yes, this is true. No questions he has the right to lay claim to a violation if he is indeed a copyright holder of the Linux kernel. His motives, I'm not quite sure, but I have appreciated him letting me know.

> I hope this at least explains the situation coherently for you, even if
> it doesn't provide any easy answers. Of course, if you still have
> questions or other concerns, don't hesitate to contact me. Please note
> that this is not legal advice. If you need legal advice, please consult
> a lawyer.
Sure, I understand that is it not legal advice. I would appreciate some information / explanation as to WHY the drivers violate the GPL. At this stage everyone seems to have an opinion, but no real evidence. If I can get that, then I can understand and see why it does violate the GPL. Until such a time it is hearsay.

Looking forward to receiving some more information. Thank you very much for your time!

Kind regards,
Chris Smart