> Regardless of whether the driver is a derivative work of the kernel, the combination of the kernel and the driver is obviously derivative of both its parts and so you have to comply if you ship that, too.

If you ship the verbatim kernel (with its license intact), a 'GPL condom', and the rest of your driver that is unrelated to the kernel source (and is thus not "copied or adapted from" any part of the kernel "in a fashion requiring copyright permission"), then that would be an "aggregate" according to the GPL, and it does not impose any requirements on the rest of your driver.

My point is this:

> The most obvious way around it is to claim the thing you created is not a derived work.

Not being a "modified version" of any part of the kernel, in the GPL sense, does not require being 100% clueless about the kernel's semantics or behavior. If your code's relation to the kernel source stays within the threshold of fair use, then it cannot be infringement, thus it cannot have been adapted "in a fashion requiring copyright permission", thus it cannot be a "modified version" in the GPL sense.

Software copyright is broad to begin with, but it is not infinitely broad.