From: David Schwartz <davids@webmaster.com>
To: <oxymoron@waste.org>
CC: Linux Kernel Mailing List <linux-kernel@vger.kernel.org>
Date: Mon, 10 Feb 2003 13:33:20 -0800
In-Reply-To: <20030210174245.GI28107@waste.org>
Subject: Re: Monta Vista software license terms
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On Mon, 10 Feb 2003 11:42:45 -0600, Oliver Xymoron wrote:

>I certainly agree, but the problem is the NDA puts the shoe on the
>other foot and now it's the customer that has to consult a lawyer or
>risk a nuisance suit before proceeding. So while it may not forbid,
>it
>certainly discourages and impedes. Let me point out that I never saw
>the NDA in question but said coworker was sufficiently intimidated 
>by
>it that he was unwilling to give me a copy of the kernel and gcc
>sources because of it.

	I believe such a provision would, unfortunately, by considered 
legally enforceable. The rationale would be that the rights you (the 
recipient of the derived work) have under the GPL would only apply if 
the distributor were bound by the GPL. The only way the distributor 
could be bound by the GPL was if he or she did something that he 
didn't have the right to do without the GPL to give him or her such a 
right.

	However, without the GPL, you already had the right to possess and 
use the original work. Without the GPL, the distributor already had 
the right to possess and use the original work and to create derived 
works. There is no issue of distribution rights to the original work 
because everyone involved started with the right to use and possess 
the original work.

	You don't need to assent to the GPL to receive GPL'd works. You 
don't need to assent to the GPL to modify GPL'd works. So the only 
question would be, do you need to assent to the GPL to distribute a 
modified work even if both you and the recipient of the work already 
have the right to the unmodified work and the right to create such 
modifications and you own the difference between the two works.

	I've researched this question, and the evidence seems to suggest 
that, no, it is not an additional right. Creating a derived work is a 
right. Distributing the rights to the original work is a right. But 
distributing a derived work when you can already create the derived 
work, do not need to distribute any rights to the original work, and 
own the rights to the difference between the two, does not seem to be 
an additional right to the original work. It is the simple sum of the 
rights both parties already have.

	Or, to put it more simply, if you can use the linux kernel and 
modify the linux kernel, you have pretty much all the rights to the 
linux kernel that there are, and so does everyone else. Being able to 
distribute a derived work you had the right to make to someone who 
already had the right to possess the original work is not an 
additional right to the original work.

	IANAL, but I'm fairly familiar with copyright law. I'd be quite 
interested in legal citations or court precedent to the contrary.

-- 
David Schwartz
<davids@webmaster.com>


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