From: David Schwartz <davids@webmaster.com>
To: <ml-linux-kernel@studentenwerk.mhn.de>
CC: <linux-kernel@vger.kernel.org>, <rms@gnu.org>
Date: Sat, 4 Jan 2003 21:35:55 -0800
In-Reply-To: <200301050539.35205.ml-linux-kernel@studentenwerk.mhn.de>
Subject: Re: Why is Nvidia given GPL'd code to use in non-free drivers?
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On Sun, 5 Jan 2003 05:39:35 +0100, Wolfgang Walter wrote:
>On Sunday 05 January 2003 01:17, David Schwartz wrote:
>>On Sat, 04 Jan 2003 18:44:58 -0500, Richard Stallman wrote:
>>>Defending shrink wrap licensing agreements, arguing to weaken
>>>fair use and
>>>first sale doctrines, and arguing that if you include a header
>>>it's
>>>a derived
>>>work is a strange way to defend intellectual freedom.
>>>
>>>Those are not my views.  Are you confusing me with someone else?
>>
>>    Then please explain to me how the GPL comes to apply to a 
person
>>who
>>did not agree to it as a condition of receiving a copyrighted work.
>>Please explain to me why you think that the GPL should have applied
>>to kernel modules that only include header files.

>You seem not to understand copyright.

	I don't see what gives you this impression.

>The GPL does not affect the user of the software. If you have bought
>a copy of
>Red Linux distribution cd i.a. it is not necessary to accept the GPL
>(or BSD
>or whatever license) to use the software. You may sell your received
>copy
>when ever you want to ever you want for whatever price you can get -
>if you
>do not keep a copy. As you can do with microsoft windows - if you
>bought it
>(and did not licensed it from microsoft). I.a. it is not necessary
>to provide
>source code because it is Red Hat which a) made the copy and b) did
>so by
>accepting the GPL.

	Right.

>But if you want to make and use or distribute copies of that CD or
>distributed
>works, well, then you must get explicit permission from the
>copyright owners
>- as you would have to for any copyrightable work. This is so
>because of
>copyright law. If you buy the software you only have the right to
>use it. You
>do not have by default the right to distribute copies, make or
>distribute
>derived works etc.

	You have those rights the law gives you and those rights that the 
copyright holder chooses to give you in the transfer agreement.

>Now the authors of the software on the Red Hat CD make you an offer:
>you may
>accept the GPL. If you do so, they allow you to make and distribute
>copies or
>derived works under certain conditions. You don't have to accept the
>GPL. If
>you do not, you may try to negotiate for other terms with the
>copyright
>holders.

	Sounds like every shrink wrap agreement in the world. You already 
have the thing you want to license, the licensee simply refuses to 
grant you the rights to that thing you already have unless you agree 
to a license that you are not free to negotiate.

>>    That's a lot better than trying to arm twist others in to
>>providing
>>our freedom to use their works. When you talk about forcing a
>>person
>>to distribute the source code to a derived work, you are only
>>talking
>>about their control over what they added. When a person creates a

>Do you understand? You are not allowed to produce derived works
>without
>permission of the copyright owner. He may do so under what
>conditions he want
>(or simply does not allow you to do so at all).

	This is the same for use. If Microsoft wants to, they can impose any
terms in the EULA that they want.

>With the GPL the copyright owner(s) of the work grants you the right
>to do so
>under certain conditions described under the GPL. One right is to
>produce
>derived works at all and

>Have you ever got permission from microsoft or adobe to produce
>derived works
>from windows 2000 or photoshop?

	Microsoft doesn't try to argue that every document I write in 
Windows 2000 is a derived work. Photoshop doesn't argue that every 
image I create in photoshop is a derived work.

	All you can do with a header file is include it in your own code. 
All you can do with photoshop is produce photoshop files. Adobe 
doesn't argue that photoshop-created images are derived works. 
Stallman *does* argue that Linux binary modules are derived works.

	To support the GPL's ability to regulate the distribution of derived
works you would have to argue that Adobe's EULA could legitimately 
prohibit you from distributing images you create with photoshop. Far 
smarter for advocates of freedom to argue that this is fair use and 
the argument that such works are derived is bullcrap.

>>derived work of an open source work, all they have to offer is the
>>value they added. In the name of freedom, you take their control
>>over
>>their work from them.

>No, they allow you to do the work at all. By default you would not
>be allowed
>to add value at all.

	Yes, but this is *use*, which is what the GPL is *not* supposed to 
stop. How can you use photoshop except to create images with it? How 
can you use a header file except to include it in your own code. I 
argue that we should take the position that this type of normal use 
does not create a derived work any more than reading a novel makes 
your brain a derived work of that novel.

>>    This is the same "freedom" that socialism promises the workers.
>>They
>>call it the freedom to own the machinery they use to produce.
>>Analogously, this "freedom" is really just the loss of the freedom
>>of
>>ownership.

>No. The authors of the work has with your words - the "ownership" of
>his work.
>Law says that one facete of that "ownership" is that he may allow or
>forbid
>derived works. And if he allows someone to produce a derived work
>its under
>his conditions.

	The argument is over what is a derived work, what constitutes 
"using" a header file, and what constitutes agreement to a contract.

>But you cant't argument that an author as owner of his work should
>use a less
>restrictive license than the GPL so you can make a derived work and
>distribute it under a more restrictive license than GPL. Why should
>he want
>to allow that at all (a lot of peoply allow that choosing a BSD-
>license -
>nice gift)? Nobody can force him to do so. Its not the GPL which
>restricts
>your freedom, it is copyright law and the author(s) of the work you
>want to
>made a derived work from.

	I guess I haven't made myself clear. My argument is not specifically
with the GPL except in the sense that it requires people who support 
it to take anti-freedom positions with respect to fair use, derived 
works, first sale, and other important issues where actual 
information freedom is at stake.

	I'm afraid I'm too tired right now to respond to the rest of your 
argument. I hope I didn't miss anything importasnt.

	DS


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