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 19:40:28 -0700
Message-ID: <MDEHLPKNGKAHNMBLJOLKAEACDBAB.davids@webmaster.com>
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> On Sun, Apr 10, 2005 at 01:18:11PM -0700, David Schwartz wrote:

> > 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.

> The GPL is very clear in its implementation: it grants wider permission
> to create derivative works than to distribute them, implementing its
> "virality" in terms of restrictions on distribution, not creation.

	It doesn't even need to do this. First sale grants the right to use a work
one lawfully possesses. One cannot "use" the Linux kernel source without
compiling it. So one doesn't need the GPL to create at least some derivative
works.

> So,
> it seems that you're claiming that the GPL is broken or unenforcable in
> some aspects.  (If you're not, I'd like to know where I'm confused.)

> If that's the case, it's a claim I'm not qualified to debate, but would
> be interested in hearing the FSF's response.

	It has always been the FSF's position that you don't need to agree to the
GPL to use the covered work. One cannot use the Linux kernel without
compiling it and linking it. One cannot use a library without creating a
work that uses the library, including the header files, and
compiling/linking to form a result. So you can *create* a broad array of
derivative works without invoking the GPL's restrictions (under first sale
and how source code is ordinarily used).

	The argument that you cannot distribute a derived work unless the GPL says
you can *because* you must have agreed to the GPL in order to lawfully
create the derivative work is pure bunk. I don't know that the FSF relies
upon the argument, however, it came up in this thread, which is why I
refuted it (at least four times now). ;)

	DS


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