A gaping hole has been discovered in the GNU General Public License (GPL), the legal document at the heart of open source, and dear Sun has driven a Mack truck named Solaris x86 straight through it.

At least that's how open source demigod Bruce Perens assesses the situation and he's the primary author of the "Open Source Definition," the philosophical basis of the open source movement.

A less forgiving Donald Becker, CTO of Scyld Computing Corporation, however, says nuts to that. It's not a matter of an obliging hole in the GPL for Sun to sidestep through. It's that Sun has released software, namely its Linux-to-Solaris driver porting kit, in gross violation of the GPL.

If Perens is part of the Linux pantheon, then Becker is the godfather of Beowulf, the famous clustering technology used in Linux.

He started the Beowulf Parallel Workstation project back in 1994 at the Universities Space Research Association - Center of Excellence in Space Data and Information Sciences (USRA-CESDIS) at NASA's Goddard Space Flight Center.

Scyld is currently on the verge of releasing the code to Scyld/Beowulf, the next-generation Beowulf.

The issue of whether there's an advantageous hole in the GPL, or whether Sun's violating the GPL revolves around those unloved but critical pieces of code called drivers and whether or not they become an integral piece of the OS after they're loaded.

Sun's controversial little kit takes open source Linux drivers and converts them into Solaris binaries.

Sun, all sweet and innocent, says it's just helping out hardware vendors by giving them a bigger market for their products and helping out developers as well by letting them write drivers once but use them on two operating systems. It says that anyone using its kit is responsible for ensuring that how they're used doesn't violate licenses, and that's not Sun's problem.

Sun quietly started showing the kit to developers back on August 7 and Becker was one of the first to get his hands on it. To his surprise, the kit used the Linux eepro100 and Tulip network drivers as examples. Becker wrote those drivers. Sun never asked his permission to convert them to Solaris binaries. Within 72 hours, Becker says, he had a letter of protest in the mail charging Sun with releasing a kit that "was both contributory infringement, and an inducement to infringe" the GPL. The GPL, Becker says, does not permit distributing the ported drivers as part of non-GPL'd code for commercial use.

Becker also took his plaint to Perens a week later at a session on licensing at LinuxWorld, where Perens was on the panel. The issue was discussed briefly, with no resolution.

Now Perens has ruled, or should one say opined, that Sun is perfectly within its legal rights - not that he particularly likes it. He cites exceptions in the GPL allowing for Sun's ported drivers "as long as the drivers are runtime loading and are not distributed with the kernel."

Becker argues the exceptions were intended for user-level programs, not drivers that send threads into the kernel.

"Yes, that is how it was intended, but that's not what it says," Perens replies. In other words, a hole in the license.

In e-mail exchanges with Becker (provided to us by the participants, not obtained surreptitiously), Perens added that "We both know that the GPL was not intended to allow this use. Unfortunately, the language of the GPL does allow it."

Neither Perens nor Becker has suggested how the GPL could, or should, be changed. But Becker knows one thing - he wants Sun to stop peddling the kit, which he says includes "explicit instructions on taking a copyrighted work and converting it to unlicensed use with the Solaris operating system."

Sun, for its part, has been publicly mum on the issue. On August 22, the same day it publicly announced the kit, Sun's assistant general counsel for patents and copyrights Alex Silverman wrote to Becker saying the company "would look into it." Later that day, Becker says, Silverman claimed in a phone conversation that Sun's kit is "educational," which could exempt it from some of the GPL requirements. That argument clearly doesn't hold water with Becker, who has this silly idea that "the educational fair-use exception only covers non-commercial use."

Becker also says that there are hints that Sun may be getting a little nervous about the situation. In the past few days the controversial porting kit has disappeared from the publicly accessible part of Sun's web site and has moved to a password-protected area for registered developers only.

[Editor's Note: Back in the mid-15th century, the Dominicans and Franciscans, those two great rival mendicant religious orders, went at each other hammer and tong over whether the blood that Christ shed while he hung on the cross was still hypostatically united to the Godhead and therefore worthy of adoration or whether, because the blood was outside Christ's body, it had ceased to be divine and therefore could not be adored. The friars raised such a ruckus that they drove the pope, Pius II, the only pope, I might add, to write his autobiography, to utter distraction. Things got so bad that Pius had to shelve his crusade against the Turks, who were pressing in on the West, to mediate the dispute. Now, I happen to know this because I wrote my master's thesis on it and I can honestly say that up to this moment in time there were only a handful of people now alive able to recall the controversy that stymied Pius' crusade and kicked up a fuss with the good people who heard the friars' sermons and mutual vituperations. I only bring up the subject now, not that I haven't been trying to work it into the conversation for years, to make two observations. First, dear readers, it is obvious that you would have to go a far way to find another publication whose editorial staff was so perfectly prepared to report on the current state of the computer industry and second that the more things change the more they stay the same. - MOG]