Return-Path: Received: (majordomo@vger.kernel.org) by vger.kernel.org via listexpand id S932922AbXBQVPk (ORCPT ); Sat, 17 Feb 2007 16:15:40 -0500 Received: (majordomo@vger.kernel.org) by vger.kernel.org id S932928AbXBQVPk (ORCPT ); Sat, 17 Feb 2007 16:15:40 -0500 Received: from nz-out-0506.google.com ([64.233.162.227]:56027 "EHLO nz-out-0506.google.com" rhost-flags-OK-OK-OK-OK) by vger.kernel.org with ESMTP id S932922AbXBQVPj (ORCPT ); Sat, 17 Feb 2007 16:15:39 -0500 DomainKey-Signature: a=rsa-sha1; c=nofws; d=gmail.com; s=beta; h=received:message-id:date:from:to:subject:cc:in-reply-to:mime-version:content-type:content-transfer-encoding:content-disposition:references; b=P5T9Pfw4JS3w7WtKO+VWXJaX53RUOfmPxwSjMSEW57sEpB3OD9k8JZgE58Hk/YhFpGhbaEsoVeD999fVrsnTHnpyQWC0qOQRnBVEsMxBO+yUhj0vbmTDmAxQ4l9bONM+31Bpby2BCit+/IhWgo9ati0Bh3Kyus8SWyd2LVeQ1Kk= Message-ID: Date: Sat, 17 Feb 2007 13:15:37 -0800 From: "Michael K. Edwards" To: "Scott Preece" Subject: Re: GPL vs non-GPL device drivers Cc: "Alexandre Oliva" , davids@webmaster.com, "Linux-Kernel@Vger. Kernel. Org" In-Reply-To: <7b69d1470702171129x36c4352cyc5b3a4b217729bf5@mail.gmail.com> MIME-Version: 1.0 Content-Type: text/plain; charset=UTF-8; format=flowed Content-Transfer-Encoding: 7bit Content-Disposition: inline References: <7b69d1470702171129x36c4352cyc5b3a4b217729bf5@mail.gmail.com> Sender: linux-kernel-owner@vger.kernel.org X-Mailing-List: linux-kernel@vger.kernel.org Content-Length: 3386 Lines: 61 On 2/17/07, Scott Preece wrote: > Well, compilation is probably equivalent to "translation", which is > specifically included in the Act as forming a derivative work. Nix. "Translation" is something that humans do. What's governed by copyright is the creative expression contained in a work, and it makes no difference whether it's source code or object code, RTL or silicon, PDF or parchment. There's a requirement of tangible fixation for registration purposes, so you can't claim copyright on a story that's in your head which you haven't written down. But what's copyrightable about a computer program is neither the "ideas and methods of operation" nor the blob of bits (compiled or not); it's the idiosyncrasies, the human touches, the things that would differ between two equally skilled coders' ways of putting those ideas into language. A judge doesn't care whether a C compiler will spin silk purses or spit chunks when fed this language, except insofar as duplicating another coder's language (by trial and error or by blatant, arrant, heartless enslavement of poor little bytes in ROM) is obligatory in order to build a silk-purse-spinner. You can't claim copyright on the only way to accomplish some engineering purpose. Even if that purpose is to interoperate with, or even substitute for, someone else's software or hardware in a way that destroys its marketability or turns its author's moral imperatives into subjunctives. Them's the breaks, folks; if you don't like it, write poetry instead. (And don't use it as a passphrase for a printer cartridge.) (You also can't claim copyright on something that isn't your work of authorship, so you can't just write down someone else's sermon and go obtain copyright registration on it. Or rather, you can, but you will lose when you try to sue someone else for infringing it, because you've falsified the registration. Under the Berne Convention, you have also not spoiled the actual author's opportunity to write it down, register her copyright, and sue you and anyone else for infringing it. People who thought they licensed it legitimately from the ostensible copyright holder may have a defense of innocent infringement, depending on whether the author can demonstrate negligence according to the usual tort standards in the relevant jurisdiction. Copyright infringement is a statutory tort, and the only limits to contracting away the right to sue for this tort are those provided in the copyright statute itself. A contract not to sue for tort is called a "license".) Again, I recommend the Lexmark v. Static Control decision to you. It references the major appellate decisions in this space from the late 70's forward, mostly from the 9th and 2nd Circuits. The full text is available from FindLaw; the few older decisions not available from FindLaw are easily Googled. Or you could just mine the debian-legal archives for the links; sadly, 80% or more of the actual citations to case law or statute in the debian-legal archives are in my handwriting, so you can't take that as an independent source of information. Cheers, - Michael - To unsubscribe from this list: send the line "unsubscribe linux-kernel" in the body of a message to majordomo@vger.kernel.org More majordomo info at http://vger.kernel.org/majordomo-info.html Please read the FAQ at http://www.tux.org/lkml/