Message-ID: <425EB5E5.6070508@almg.gov.br>
Date: Thu, 14 Apr 2005 15:26:45 -0300
From: Humberto Massa <humberto.massa@almg.gov.br>
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To: davids@webmaster.com
CC: debian-legal@lists.debian.org, linux-kernel@vger.kernel.org
Subject: Re: non-free firmware in kernel modules, aggregation and unclear
 copyright notice.
References: <9rcYQC.A.LsH.E_qXCB@murphy>
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David Schwartz wrote:

 >>That is the point: the result is not a single work. It is a
 >>collection or compilation of works, just like an anthology.
 >>If there is any creativity involved, is in choosing and
 >>ordering the parts. The creation of works that "can be
 >>linked together" is not protected by copyright: the literary
 >>analogy was to "create a robot short story". Such a story
 >>could go into an anthology called (duh) "Robot Short
 >>Stories", but its licensing is independent of every other
 >>robot short story in the world -- except those it is a
 >>derivative work of.
 >
 >
 >    That's fine then, if you want to define derivative
 >work in this way, then I can configure, compile, and link the

Not me -- copyright law defines derivative works in this way.

 >Linux kernel without permission of the copyright holder under
 >first sale (since no derivative work is created).  I can
 >write a program that uses a library, compile my program, and
 >link it to the library, again without creating a derivative
 >work.

I already conceded on this.

(...)
 >
 >    Read the quote above.

?! I did not understand which quote, or which part. But I
suspect you're talking about lu-12.html (below), for which
just now you pointed me to.

 >>Second: you did not provide a concrete pointer to one of
 >>Eben Moglen's posts, for instance, saying that modification
 >>is not covered by the GPL. Me, OTOH, showed you that the
 >>TEXT of the GPL says it covers modifications.
 >
 >
 >    Read the quote. For about the fourth time in this
 >thread, here's the cite:
 >http://emoglen.law.columbia.edu/publications/lu-12.html "The
 >license does not require anyone to accept it in order to
 >acquire, install, use, inspect, or even experimentally modify
 >GPL'd software."

This is the first time you gave me an URL. I'll look into it.

(...)
 >
 >
 >    I never said that the FSF says the GPL does not cover
 >modifications, I said it doesn't cover ordinary use. That
 >means it doesn't cover modifications when those modifications
 >are made in the course of ordinary use.

Insofar, you did not show me an example of need to create a
derivative work in the course of the ordinary use.

(...)
 >    Okay. So you get to the same place I get by a
 >different route.  One of the strange things I've noticed is
 >nearly all cases, you get the same result whether you think
 >the final work is a derivative work or not.
 >
(...)

Now some things interesting:

 >    I don't think courts seem to agree with this, but I
 >can only find cases where the result really would have been
 >the same whether or not the work was derivative. For example,
 >one case inolved a company that stole test questions from
 >another company. The courts ruled that the test with some of
 >the "borrowed" questions was a derivative work, even though
 >there's no special "integration" of the questions. But they
 >could perfectly well have reached the same conclusion without
 >the "derivative work" argument.
 >
 >    There are court cases on point that definitely
 >disagree with you, for example Mirage Editions, Inv. v.
 >Albuquerque ART (cutting a picture out of a book creates a
 >derivative work).  Also National Football League v.  TVRadio
 >Now (embedding someone else's broadcast with your
 >advertisements through an automated process creates a
 >derivative work).

The embedding was not made by a fully automated process, was
it? Didn't someone had to create the advertisements, with the
purpose to be presented embedded in the broadcast? I suspect
-- without looking at the case files at the moment -- that
there was the creation of the derivative works...
 >
 >    I think it would make a lot of sense if courts held
 >that compiling and linking are analogous to format changes
 >(like converting an audio-visual work from DVD to VHS). This

Our (.br) courts do. I don't know (I'd have to read the cases
you cited) why did those courts ignored the intellectual
novelty requirement of a derivative work, but I'll look into
it.

 >process involves making copies of the work so that it can be
 >used in different environments that have different technical
 >requirements. (Except in cases where one work is heavily
 >adapted to the internals of another.) It's clear that anyone
 >who tried to get an independent copyright on their compiled
 >Linux kernel binary should be laughed off the planet.
 >
 >> >    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.
 >
 >
 >>You repeated this a lot of times, but you have not
 >>substatitiated it, at least WRT something I asked you:
 >>please, give me some *link* where EM, RMS, or any other
 >>FSF/GNU guy contradicts the GPL section 0 paragraph 1
 >>("modification") saying that you can modify a GPLd work
 >>without agreeing to the GPL.
 >
 >
 >    This has always been their position, when modification
 >is needed for ordinary use. See the quote from Eben Moglen
 >above. Now, as I said, they reach different conclusions based
 >on this, but we agree on this.
 >
 >    DS

Now I concede a lot: you have really substantiated some of
your claims, and I'll have to look into your case examples.

HTH,
Massa


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