From: "David Schwartz" <davids@webmaster.com>
To: <debian-legal@lists.debian.org>, <linux-kernel@vger.kernel.org>
Subject: RE: non-free firmware in kernel modules, aggregation and unclear copyright notice.
Date: Sun, 10 Apr 2005 13:18:11 -0700
Message-ID: <MDEHLPKNGKAHNMBLJOLKIEOFDAAB.davids@webmaster.com>
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> On Sat, Apr 09, 2005 at 08:07:03PM -0700, David Schwartz wrote:

> > 	The way you stop someone from distributing part of your
> > work is by arguing
> > that the work they are distributing is a derivative work of
> > your work and
> > they had no right to *make* it in the first place. See, for
> > example, Mulcahy
> > v. Cheetah Learning.

> Er, that's one way, but not *the* way.  I could grant you permission to
> create derivatives of my work, but not to redistribute them.  To stop you
> from distributing them, I'd argue that you had no right to distribute
> them--you *did* have the right to make it in the first place.

	You could do that be means of a contract, but I don't think you could it do
by means of a copyright license. The problem is that there is no right to
control the distribution of derivative works for you to withhold from me.

> The GPL does this.  Note GPL #2b: "any work that you distribute
> or publish".
> If you don't distribute or publish the derivative work, the work does not
> need to be "licensed ... under the terms of this License."  It
> very carefully
> separates the permissions granted for merely creating a derivative work,
> and the permissions granted for distributing those works; if you
> distribute
> a linked binary in violation of the GPL, you may very well have
> had permission
> to make it in the first place.

	Yes, but this would be valid if and only if there was a right to restrict
the distribution of derivative works that was recognized under copyright
law. I can find no record of the existence of such a right.

> (Of course, if whether the work is a derivative is in question, that would
> need to be established--you would, indeed, need to argue that the
> work they
> are distributing is a derivative work--but you wouldn't
> necessarily further
> argue that they had no right to make it in the first place.)

	Well that's the problem. While copyright law does permit you to restrict
the right to create derivative works, it doesn't permit you to restrict the
distribution of lawfully created derivative works to licensees of the
original work. As far as I know, no law has ever granted this right to
copyright holders and no court has ever recognized this right. And I've
looked. Courts have specifically recognized the absence of this right.

	DS


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