Message-ID: <4252C27D.9060503@almg.gov.br>
Date: Tue, 05 Apr 2005 13:53:17 -0300
From: Humberto Massa <humberto.massa@almg.gov.br>
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To: linux-os@analogic.com, debian-legal@lists.debian.org,
       debian-kernel@lists.debian.org, linux-kernel@vger.kernel.org
Subject: Re: non-free firmware in kernel modules, aggregation and unclear
 copyright notice.
References: <UwJpRC.A.8E.5erUCB@murphy>
In-Reply-To: <UwJpRC.A.8E.5erUCB@murphy>
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Richard B. Johnson wrote:

 >On Tue, 5 Apr 2005, Humberto Massa wrote:
 >
 >>Josselin Mouette wrote:
 >>
 >>>You are mixing apples and oranges. The fact that the GFDL sucks has
 >>>nothing to do with the firmware issue. With the current situation of
 >>>firmwares in the kernel, it is illegal to redistribute binary images
 >>>of the kernel. Full stop. End of story. Bye bye. Redhat and SuSE may
 >>>still be willing to distribute such binary images, but it isn't our
 >>>problem.
 >
 >Wrong! It is perfectly legal in the United States, and I'm pretty sure
 >in your country, to distribute or redistribute copyrighted works.
 >Otherwise there wouldn't be any bookstores or newspaper stands.

Oops, you are missing important stuff here: the book publishers and the
newspaper/magazine editors have EXPLICIT PERMISSION by the copyright
holders to distribute the copyrighted works.

Now, the bookstores and newspapers stands have IMPLICIT permission to
distribute them because of the Doctrine of First Sale (roughly: if you
buy a legally printed book you can sell the same book; you can sell your
WinXP box with everything you bought inside).

Other than the doctrine of First Sale, and, in the USofA, some cases
covered by Fair Use, copyrighted works can only be distributed by their
authors/owners (*) and by people explicitly authorized to do so.

And, other than the Fair Use rights and similar statutory rights in
other jurisdictions, only the authors/owners of copyrighted works have
the right to create derivative works, too.

(*) owners because copyrights can be transferred.

 >There is nothing about firmware that is any different than any other
 >component of a product. If the product was legally obtained and it
 >requires firmware to run, then there are no special considerations
 >about how one inserts the firmware into the product.

Except for the fact that there may be EULA clauses in the firmware that
came with the product, or in the software that came with the product and
is (in that other OS) in charge of loading said firmware.

And the fact that software is covered by different laws in different
countries, too.

 >If you are a GPL-religious-zealot who believes that you are supposed to
 >get the technical design (i.e. the software schematics) of the hardware
 >device for free so you can copy it, then you are going to have to learn
 >something about intellectual property.

I am not. And please don't use those words. Copyrights, trademarks,
patents and trade secrets are limited rights, not properties.

 >The firmware, in most cases, are the bits generated by a design program
 >that creates the function of the device. It's what the manufacturer
 >paid 5-10 engineers over a period of a year or so to produce. The rest
 >of the design is just some chips you can get off-the-shelf. Even if the
 >manufacturer said; "Here you are.... You can have the design....". You
 >don't have the "compilers" and other stuff necessary to turn this
 >design into the firmware unless you planned to steal the design.

This makes a lot of sense.

 >So, you either accept the firmware component, thanking the manufacturer
 >for it, or you go cry foul someplace else.

Right on, sister.

 >This whole firmware thing is a non-issue, blown way out of proportion
 >by people who don't have a clue.

Naah, there is some serious issues here. Read on for more.

 >Sometimes a manufacturer doesn't have a separate bag-of-bits to supply
 >competing operating systems. Instead, only one "driver" for one OS was
 >produced by the manufacturer.  Extracting those bits, from offset-N to
 >offset-M in that driver likely constitutes fair use as long as the
 >product wasn't stolen and the driver was distributed with the product,
 >or was publicly available.

You are not 100% right on this. Let's see: first, "fair use" is a
doctrine that is not widespread in non-USofA jurisdictions; second,
extracting those bits constitutes creating a derivative work, which is
not allowed without explicit consent of the copyright owner; and third,
you would have to get a judge to consider this fair use to be on the
safe side, ie -- not really practical.

Even if you were 100% right on this, neither kernel.org nor debian.org
would have the right to redistribute said firmware without explicit
consent of the copyright owner. It would be completely free (even
DFSG-free) if d-i or some other kernel installer asked for the diskette
that came with the user's device and extracted the bits in the moment of
the extraction... but it would not be very practical, would it?  It
would be better if your install could be done without such hoops.

Even in the case that the copyright owner gave explicit consent for,
say, kernel.org to redistribute its firmware (or even gave consent for
Debian to redistribute its firmware) the firmware could not be in
debian/main because this would not be DFSG-free.

 >>Yes, GFDL has nothing to do with the main issue. No, it is not
 >>necessarily illegal to redistribute binary images of the kernel as
 >>they are today (see below). The first problem is that they (the
 >>complete w/firmware kernel binary images) are not DFSG-free, anyway.
 >>The second problem is that some firmware blobs don't have explicitly
 >>stated in the kernel tree which exactly are their licensing terms for
 >>redistribution -- those are, in principle, undistributable.
 >>
 >>>Putting the firmwares outside the kernel makes them distributable.
 >>>Some distributions will want to include them, some others not. But
 >>>the important point is that it makes that redistribution legal.
 >>>
 >>>
 >>If putting the firmwares outside the kernel makes *them*
 >>distributable, then the binary kernel image is already distributable
 >>-- just not DFSG-free. The important fact WRT Debian, IMHO, is that
 >>putting the firmwares outside the kernel makes the kernel binary image
 >>DFSG-free.
 >>
 >>HTH, Massa
 >
 >
 >
 >Cheers, Dick Johnson Penguin : Linux version 2.6.11 on an i686 machine
 >(5537.79 BogoMips).  Notice : All mail here is now cached for review by
 >Dictator Bush.  98.36% of all statistics are fiction.
 >

Just so you know I'm not really talking out of my rear end, IANAL, but I
have four years of legal training, and I have worked two years as a
paralegal in a DA's office, and I am married to a DA (married for eight
years, she is a DA for eleven years) whom I ask some legal insight from
time to time. Yes, I know how to do legal research. Ok, my jurisdiction
is not the same as yours [our laws are generally saner :-) even if our
law enforcement is often not].

HTH,

Massa


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