From: "David Schwartz" <davids@webmaster.com>
To: <7eggert@gmx.de>
Cc: <debian-legal@lists.debian.org>, <linux-kernel@vger.kernel.org>
Subject: RE: non-free firmware in kernel modules, aggregation and unclear  copyright notice.
Date: Tue, 12 Apr 2005 12:15:35 -0700
Message-ID: <MDEHLPKNGKAHNMBLJOLKAENKDBAB.davids@webmaster.com>
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> On Tue, 12 Apr 2005, David Schwartz wrote:

> > > If you buy a W*nd*ws install CD, you can create a derived work,
> > > e.g. an image
> > > of your installation, under the fair use rights (IANAL). Can you
> > > distribute
> > > that image freely?

> > 	I would say that if not for the EULA, you could transfer
> > ownership of the
> > image to someone else.

> The EULA is irrelevant in germany and in many parts of the USA.

	Really? I was under the impression EULA's were routinely upheld in the USA.
If you have any references for that, I'd love to hear them.

> > And if you legally acquired two copies of Windows,
> > you could install both of them and transfer them. Otherwise,
> > you could not
> > sell a machine with the Windows OS installed unless you were a Microsoft
> > OEM.

> Then it would be stupid to become a OEM. Just buy one CD and
> install it on
> each computer you sell, combined with a pre-installed ghost.

	You can only transfer each legally acquired copy once. The nice thing about
GPL'd works is you can easily legally acquire as many copies as you want.
But for works that are sold for a price, you have to legally acquire one
copy for each one you transfer. *You* cannot increase the number of copies
of the work, only a lawful distributor of the work can.

	If you don't want to be bound by the GPL and you want to give ten friends
copies of a Linux install disk, you could download ten copies of that disk
from an FTP site, transfer them each to a floppy and destroy all other
copies. You could then give those copies away under first sale rights.
However, technically, if you gave out eleven copies and only legally
acquired nine, you are exceeding your rights under first sale.

> > Does Microsoft take the position that if you want to sell your PC, you
> > must wipe the OS? Not that I know of.

> They say it's forbidden do pass even the boot loader you put on disks,
> they just won't sue you for just the boot loader.

	Right, but in these cases the number of copies of the work is increased by
the person. In the case of most GPL'd work, you can find any number of web
sites that will do this for you. They have to comply with the GPL but you
don't. (You don't have to agree to the GPL to lawfully acquire as many
copies of the work as you want. Each copy can be lawfully transferred to
another under first sale rights.)

	If you acquire a copy of a GPL'd work that is sold for a price, and you
only buy one copy, you cannot make and distribute additional copies without
complying with the GPL. Each lawfully-acquired copy can be transferred,
however.

	DS


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