Message-ID: <425C2E4C.3070109@almg.gov.br>
Date: Tue, 12 Apr 2005 17:23:40 -0300
From: Humberto Massa <humberto.massa@almg.gov.br>
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To: debian-legal@lists.debian.org, linux-kernel@vger.kernel.org
Subject: Re: non-free firmware in kernel modules, aggregation and unclear
 copyright notice.
References: <_WpYEC.A.JPD.F9BXCB@murphy>
In-Reply-To: <_WpYEC.A.JPD.F9BXCB@murphy>
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David Schwartz wrote:

 >>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?

No. Compiling and linking are mechanical,
non-intellectually-novel acts. At most, you have a collective
work where the real intellectually-novel work was to select
what goes into the collective.

 >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?

Yes. And yes, if you buy a copy of the library, yes (but
notice: not if you downloaded it for free from the Net).

 >
 >There are many ways you can lawfully create a derivative work
 >without explicit permission of the copyright holder. One

No. The copyright law states that the copyright owner has the
monopolistic right to create derivative works.

 >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.

No... Try writing a book with Harry Potter as your main
character and JKR's lawyers will be at your door soon.

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

Please send us some pointers to this statements for the FSF.

 >"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

Wrong again. GPL, section 0, para 1: "Activities other than
copying, distribution, and *modification* are not covered by
this License". Emphasis mine.

 >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."

Except for the modification part, which *is* the scope of
regular, Berne-convention-molded copyrights law.

 >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.

No, we disagree on this too.

 >>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.

This is not the point: you still would have to wipe your ten
computers clean if you want to sell the ten copies you have.

In the GPL'd case, if you disregard the terms of the license,
you can still keep, use, etc. You can *not* copy it,
distribute it, or modify it tough.

 >>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.

The point is: it's *not* a derivative work. period. Yes, first
sale would apply to the same extent that it applies to the
original software.

 >>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.

Ok, let's repeat ourselves:

A derivative work is a novel intellectual creation (of the
spirit) that results from some transformation of another work,
said the "original" work.

There is a similar (identical?) definition on 17 USC, but I am
quoting (bad translation mine) our "Lei 9610/98 -- Lei de
Direitos Autorais" (1998 Brazilian Author's Rights Act), art.
5?, VIII, 'g'.

I can't think of any example where to use a work, you must
create another work transforming the first. If you can, please
enlighten me. Beware: your *spirit* must transform the work,
not your computer. Yes, as when *you* translate a book to
another language, in an non-automatable-non-automated process.

 >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

No, no, no, and no. A derivative work is not something that is
"argumentable" :-). There is a clear legal definition, and
there are even tools (the Holy Trinity of Derivation:
Abstraction, Filtration, Comparison) to help us define and
discover what is and what is not a derivative work. And no,
HelloWorld.c is not a derivative work of Windows, even if it
#include<windows.h>

please, google for:

abstraction filtration comparison derivative

-- it will be enlightening.

 >argument is as strong as the argument that a driver with
 >linked in firmware is a single work.

This would most certainly not prevail in any court at all.
Obviously, IANAL and TINLA applies. But, that said, I have
good credentials :-)

 >
 >DS

HTH,
Massa

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