From: "David Schwartz" <davids@webmaster.com>
To: "Linux-Kernel@Vger. Kernel. Org" <linux-kernel@vger.kernel.org>
Subject: RE: [future of drivers?] a proposal for binary drivers.
Date: Mon, 13 Mar 2006 13:57:40 -0800
Message-ID: <MDEHLPKNGKAHNMBLJOLKMEAJKLAB.davids@webmaster.com>
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> > 	2) The ordinary and expected use of a library is to produce
> > applications
> > that use that library.

> and the kernel is not a library

	Tell me, then, what is the orindary expected use of the RedHat
'kernel-devel' package?

> > 	5) There is no right under copyright for authors of
> > original works to limit
> > the distribution of lawfully-created derivative works to those with the
> > right to use the original work.

> this is not correct. Copyright law *DOES* give copyright owners the
> right to control derived works.

	No, it does not. Copyright law only gives copyright owners the right to
control the *creation* of derivative works. I very carefully worded my
statement above so that it would talk about precisely the right people claim
they have and precisely the right they do not have.

	In this case, the alleged derivative work is created under first sale, as
part of normal use. It is impossible to normally use the 'kernel-devel'
package without creating derivative works, and under first sale, normal use
(and anything required for normal use) cannot be burdened. Once the
derivative work is lawfully created, there is nothing in copyright law that
requires the permission of the author of the original work to distribute the
derived work to licensees of the original work.

	The GPL gets around this by imposing requirements on the creation of
derivative works, under the assumption that you cannot get the right to
create a derivative work any other way. But this is false, first sale grants
the right to normal use, and normal use includes anything necessary for
normal use. For a library or for the 'kernel-devel' package, normal use
requires the creation of derivative works.

	DS


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