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: Tue, 12 Apr 2005 12:01:15 -0700
Message-ID: <MDEHLPKNGKAHNMBLJOLKMENFDBAB.davids@webmaster.com>
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> David Schwartz wrote:
>
> >  This would, of course, only make sense if you *had* to agree to the
> >  license to *create* the derivative work. If you were able to create
> >  the derivative work under first sale or fair use rights, then the
> >  restrictions in the contract would not apply to you.

> The only way to *create* a derivative work is with permission of the
> copyright owner of the original work. Period. This permission can come
> implicitly *if* you agree with licensing terms, but not under first sale
> or fair use *limitations*. (First sale / fair use are statutory
> limitations on copyrights, not rights).

	Would you agree that compiling and linking a program that uses a library
creates a derivative work of that library? Wouldn't you agree that this is
the normal form of use of a library? And doesn't first sale give you the
right to normal use of a work you have legally acquired?

	There are many ways you can lawfully create a derivative work without
explicit permission of the copyright holder. One clear case is when you
lawfully possess the work, there is no EULA or shrink-wrap agreement, and
you need to produce a derivative work to use the work in the ordinary
fashion.

	This is, by the way, the FSF's own position. It's not something I'm making
up or guessing at.

"The license does not require anyone to accept it in order to acquire,
install, use, inspect, or even experimentally modify GPL'd software. All of
those activities are either forbidden or controlled by proprietary software
firms, so they require you to accept a license, including contractual
provisions outside the reach of copyright, before you can use their works.
The free software movement thinks all those activities are rights, which all
users ought to have; we don't even want to cover those activities by
license."

	Now we draw different conclusions based on this, but we agree on this. You
do not need to agree to the GPL to create derivative works.

> If you will keep your copy and registration # of windows, yes,
> you *must* wipe out the machine before selling it.

	Since there is no copy or registration number of a GPL'd work to keep, this
actually argues the reverse of what I said. If I legally acquire ten copies
of Windows, I can perform normal use on those ten copies and then transfer
those copies to someone else.

> The point is moot, anyway, because the image is *not* a
> derivative work: It is a copy of the work, made by automated
> and automatable processes. It's not a creation of the spirit.

	I don't think this makes a difference. If it's a derivative work, it's one
created in the course of ordinary use. In any event, first sale would be the
same either way.

> So, no, when you get a WinXP CD from Microsoft, you have
> absolutely *no* rights to create derivative works. If a person
> creates a derivative work, even if it does not distribute it,
> it would be infringing on MS's copyrights and I would not want
> to be in said person's shoes, if someone in the legal
> department of MS wakes up in the wrong side of the bed.

	But you do have the right to create derivative works if such derivative
works are necessarily created in the process of the ordinary use of the
work. I think that if I write software that runs under Windows, an argument
can be made that that software is a derivative work of Windows. That
argument is as strong as the argument that a driver with linked in firmware
is a single work.

	DS


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