From: "David Schwartz" <davids@webmaster.com>
To: <mr.fred.smoothie@gmail.com>
Cc: "Linux-Kernel@Vger. Kernel. Org" <linux-kernel@vger.kernel.org>
Subject: RE: [future of drivers?] a proposal for binary drivers.
Date: Thu, 9 Mar 2006 17:04:21 -0800
Message-ID: <MDEHLPKNGKAHNMBLJOLKEEAHKKAB.davids@webmaster.com>
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> On 3/9/06, David Schwartz <davids@webmaster.com> wrote:

> > > Copyright law also absolutely
> > > gives me monopoly power over derivitive works - you can't even create
> > > a work derived from my dropped-from-airplane poem without my
> > > permission, much less distribute one.
> >
> >        No, that's not true on two counts.
> >
> >        First, your last part "much less distribute one" is
> > utterly false.
> > Copyright law does not give you any special rights to restrict the
> > distribution of derivative works.

> You're being rather hyper-technical and semantic here, aren't you? You
> clearly can't distribute something you can't legally "prepare" in the
> first place.

	No, it's a huge point. Because there are other ways you can get the right
to *prepare* it, these include fair use, first sale, scenes a faire,
necessary step, de minimis, and probably several other things I'm missing.

> > Second, your first part, that it gives you monopoly
> > power over the creation
> > of derivative works is also false. First sale and fair use can
> > give people
> > the right to create derivative works.

> OK, 14 USC 106(2) gives me monopoly power, subject to certain
> restrictions. You seemed to have missed my point, as none of the
> restrictions you mentioned include creation of derivative software
> programs for commercial distribution.

	It's not clear that necessary step and scenes a faire don't. There is case
law regarding necessary step creation of derivative works for commercial
distribution. So you're simply assuming as beyond controversy an issue that
is totally unresolved.

> In another reply, you wrote:

> >        You cannot copyright an idea. "A Foo2000 SCSI driver for
> > Linux 2.6" is an
> > *idea*. So you cannot argue that you have copyright on every practically
> > possible way to create such a driver.

> Your argument, if extended to fiction, is equivalent to "'An
> elaboration of Gone With the Wind' is an idea."

	An elaboration of Gone With the Wind is not functional. It doesn't *do*
anything. So whether or not it's the only way to do a particular thing is
not even an issue.

> There may be such a
> thing as an idea corresponding to "an elaboration of Gone With the
> Wind," but once a reader has the embodiment of that idea in their
> hands, a work subject to copyright has obviously been created, and
> it's up to the courts to decide whether it's a derived work or not.

	Of course, and if all it took from the original work is the only way to get
a particular thing done, it's clearly not a derivate work for copyright
purposes.

> Linux is a copyrighted work, so "A Foo2000 SCSI driver for Linux 2.6,"
> once it gets embodied in software, unless it's implemented in
> userspace, is most likely going to be a work derived from the
> copyrighted expression which is the linux kernel.

	I agree, however it is not legally a derivative work if all it took from
Linux was the only (practical) way to get a particular functional task done.
This is scenes a faire. (Did you read Lexmark v. Static Controls?)

> I don't think a software company is going to get away with declaring
> that their driver is parody (though I've seen code that appears to be
> a parody of computer programming generally), and if they're careful
> enough not to use the same symbols as me... well, they won't have
> created a derived work, but  other important senses of the word "work"
> probably won't apply to their program, either.

	The symbols are not the issue. Courts have clearly held that the names of
symbols and the order of functions is not copyrightable content. Anything
that is purely functional is not copyrightable content either. If it is the
only, straightforward, practical way to do a particular thing, it's just not
copyrightable. (If you want software patents, you know where to find them.)

	Software is not the same as other works, and the analogies to
non-functional works don't always, excuse the term, work.

	DS


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