Linus on the gray area in copyright law

I stumbled across an interesting thread while looking for something else (isn't that what you're supposed to do on the web?). Evidently someone suggested having the Linux kernel refuse to load any module (kernel plugins) that wasn't under the GPL, and even went so far as to compose an original poem in order to ensure copyrightability of the kernel (wouldn't any of several existing colorful comments do just as well?).

Linus objects, fairly forcefully, arguing that Linux trying to use technical means to control what can and can't be hooked in is essentially the same as, and no better than, the recording industry trying to use technical means to control who plays what when and where. Both interfere with fair use. You can bring it in, he says, but not in my tree [that is, I won't let you bring in this thing that won't let the kernel bring in other things, but you can make your own kernel with your thing-that-won't-bring-in-certain-other-things ...]. As far as I can tell, the effort failed. Certainly ndiswrapper, which would raise the same sort of issue if removed, is still around.

He then goes on to argue that the concept of a "derived work", which the proponents of the proposal invoked to argue that hooking a module into the kernel brings the module under the same copyright restrictions as the kernel, 1) doesn't work that way and 2) is a gray area with no bright line around it and 3) is deliberately a gray area and moreover it's a good thing it is.

He also makes the very cogent point that copyright is about distribution, not use.


Arching over all this, I think, is a view of how technology relates to the law.

Technology is all about well-defined limits. Code doesn't necessarily do quite what we say it does, but whatever it does do, it does unequivocally. Law is about human nature and behavior. It's built on slipperier notions like precedent and intent. Law is open to interpretation. This is a defining feature. There is no meaningful law without judges.

What I get from Linus here, and maybe this is just because I believe it myself, is that trying to use technology to put well-defined limits on the law is generally counterproductive.

A successful law can't be severely at odds with technical reality. It would be pointless, say, to make it illegal to transmit packets with an even number of bytes. Occasionally someone suggests something similarly asinine, but very few such proposals make it out of committee. I'm going to take the opportunity here to blatantly dodge the issue of whether the DMCA is a successful law in this sense.

However, law does best when it steers clear of the technical details. "It's illegal to sell someone else's work without their permission. I don't care how you do it." is much better law than "All computers must provide means to prevent copying of DVDs", which in turn is much better than "All computers must provide this particular means to prevent copying of DVDs."

The first version leaves room for lawyers pitch arguments to judges over what "work" and "permission" mean, but that's what lawyers and judges are supposed to do.

Likewise, code does best when it steers clear of the legal details.