Thanks to all who replied the below snippet clarified the situation.
It seems that os kernels pose a special case for the GPL if you want
proprietary code to run directly on top of them.
>The Linux kernel licence contains a clarification that the syscall
>interface is considered to be the boundary of the GPL as it applies
>to the kernel. From <linux kernel>/COPYING:
>>"
> NOTE! This copyright does *not* cover user programs that use kernel
> services by normal system calls - this is merely considered normal use
> of the kernel, and does *not* fall under the heading of "derived work".
Rob
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