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: Wed, 13 Apr 2005 18:37:38 -0700
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>  >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.

	Compiling and linking are mechanical, but unless you want to argue that the
result is not a single work, it clearly creates a derivative work of all the
things linked. The creativity is not in the linking itself but in the
creation of the individual works such that they can be linked together.

>  >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 is no legal distinction. Your rights come not from the fact that you
paid money for the work but simply from the fact that you acquired it
legally. Again, the reductio ad absurdum is the guy who drops copies of his
poem from an airplane and then demands royalities from everyone who reads
it. If you legally acquired it, you get the bundle of rights under first
sale.

>  >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.

	Yes, but this doesn't restrict first sale or fair use. You cannot use a
library without creating a derivative work, so if first sale grants you
rights to use, it automatically grants you the right to do anything
necessary for use.

>  >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.

	Sometimes I wonder if you are reading what I said or not. I said "you need
to produce a derivative work to use the work in the ordinary fashion" and
you say "No" and follow with an example where you clearly *don't* 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.
>
> Please send us some pointers to this statements for the FSF.

	Read any of Eben Moglen's posts.

>  >"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.

	You are free to disagree with the FSF's interpretation of the GPL, but you
are not free to misrepresent the FSF's interpreration.

>  >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.

	Feel free to disagree with the FSF about the meaning of the GPL, but it is
the FSF's position that you can modify a GPL'd work without agreeing to the
GPL.

>  >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.

	I don't know who "we" is, but I agree with the FSF.

>  >>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.

	Right. You cannot increase the number of copies.

> 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.

	You can, so long as you don't increase the number of copies. This is a
right under first sale.

>  >>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.

	To use a library, you must write a program that uses that libraries and
includes its header files. You must compile the library and the program, and
link the result. You must then execute the result.

	You can argue it one of two ways:

	1) The result is a derivative work, hence creating a derivative work is
necessary for ordinary use. Thus permission to use means permission to
create (at least some) derivative works.

	2) The result is not a derivative work, hence you don't need permission
from the copyright holder to do it.

	Either way you get the same result, permission is not needed beyond
permission to use.

>  >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.

	Then all the people who think that creating a binary kernel module requires
creating a derivative work and hence can be restricted by the GPL are wrong.
Take that argument up with them.

>  >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 :-)

	I think even if the result is not a derivative work, the rules for
distributing it would be the same. However, it would change the rules for
creating it. Either way, however, you get that you can do it without
agreeing to the GPL, and this is the FSF's position.

	DS


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