Return-Path: Received: (majordomo@vger.kernel.org) by vger.kernel.org via listexpand id S932647AbXBUWIj (ORCPT ); Wed, 21 Feb 2007 17:08:39 -0500 Received: (majordomo@vger.kernel.org) by vger.kernel.org id S932637AbXBUWIj (ORCPT ); Wed, 21 Feb 2007 17:08:39 -0500 Received: from an-out-0708.google.com ([209.85.132.244]:31000 "EHLO an-out-0708.google.com" rhost-flags-OK-OK-OK-OK) by vger.kernel.org with ESMTP id S932647AbXBUWIh (ORCPT ); Wed, 21 Feb 2007 17:08:37 -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=HE12N4JR1945yBQrVJXzK8FU7jIpSP3CjXIQvC2w4iHW5yScH4EWU+3OVjatayxWBHPJBEo5wwWeOIXuj/M3/pnTdokaNlqco3V0iK7uV+gsgLAR6cC+yz+dSRO94h6EuKEx1wjMn8I6I8DSAPfVacFqaQVKRosZzNqCgOI87uA= Message-ID: Date: Wed, 21 Feb 2007 14:08:36 -0800 From: "Michael K. Edwards" To: davids@webmaster.com, "v j" Subject: Re: GPL vs non-GPL device drivers Cc: trent.waddington@gmail.com, "Linux-Kernel@Vger. Kernel. Org" , "Neil Brown" In-Reply-To: MIME-Version: 1.0 Content-Type: text/plain; charset=UTF-8; format=flowed Content-Transfer-Encoding: 7bit Content-Disposition: inline References: <3d57814d0702191458l1021caeyaefd7775398c5f2a@mail.gmail.com> Sender: linux-kernel-owner@vger.kernel.org X-Mailing-List: linux-kernel@vger.kernel.org Content-Length: 7434 Lines: 130 Actually, it's quite clear under US law what a derivative work is and what rights you need to distribute it, and equally clear that compiling code does not make a "translation" in a copyright sense. Read Micro Star v. Formgen -- it's good law and it's funny and readable. I've drafted summaries from a couple of different angles since VJ requested a "translation into English", and I think this is the most coherent (and least foaming-at-the-mouth) I've crafted yet. It was written as an answer to a private query to this effect: "I write a POP server and release it under the GPL. The Evil Linker adds some hooks to my code, calls those hooks (along some of the existing ones) from his newly developed program, and only provides recipients of the binaries with source code for the modified POP server. His code depends on, and only works with, this modified version of my POP server. Doesn't he have to GPL his whole product, because he's combined his work with mine?" This is a fundamental misconception. A <> is not a "work of authorship". Copyright is about "works of authorship" and cannot be used to allow or disallow behavior based on whether you have <> two things at an engineering level to make a product. A contract can be used to allow or disallow, and assign penalties to, all sorts of things, and the GPL is an "offer of contract"; but its plain text does _not_ disallow this <> -- largely because the drafter was trying to put one over on you and me by pretending that he could do that without recourse to contract law. The fact that your Evil Linker's program will not do anything interesting without your program is no more relevant than the fact that Borland's spreadsheet program will not do anything interesting without a spreadsheet document loaded. Borland's interest lay in making their macro language compatible with Lotus's so that users didn't have to rewrite their documents from scratch. The Evil Linker's interest lies in making their program compatible with other clients of your POP server so they don't have to rewrite your POP server from scratch. Borland won in court, and so will the Evil Linker. IANAL, TINLA. Now, Borland _almost_ lost at the Supreme Court level. Why? Because while they had a good case that it wasn't practical to copy the 1-2-3 macro language without copying its entire user interface, that gets awfully close to the sort of expression that copyright is supposed to protect. You can take a picture of a skyscraper and sell copies of that picture, not because it isn't in some sense an infringement on the architect's copyright, but because it's "fair use" -- mostly because it doesn't interfere with the architect's ability to make money licensing _architectural_ replicas of her work. When you take a screenshot of a spreadsheet, you're on safe ground; but if you use that screenshot to clone the spreadsheet, you're pushing your luck. Borland won, sort of, when the Supremes split 4-4 (one was out sick or recused or something). If you want to know why, you can get hold of a transcript of the oral argument before the Supreme Court, which is mostly in plain English and about half debate between the Justices about where they ought to draw the line. For an example where screenshots can be over the line, and where even unlicensed distribution of data files can be held to infringe the copyright on the program that reads them, read Micro Star v. Formgen (9th Circuit). That involved a very different theory though, infringement on the "characters and mise en scene" of a fictional work (Duke Nukem 3D), and will not avail you against the Evil Linker. All of this stuff is covered in Lexmark v. Static Control (6th Circuit, cert. denied) -- the law of the land throughout the U. S. of A. But wait, you say -- the Evil Linker modified, copied, and distributed my POP server too! That makes him subject to the terms of the GPL. And you're right; but to understand what that means, you're going to need to understand how a lawsuit for copyright infringement works. The very, very, very concise version is: You claim "copyright infringement". He claims "copyright license" -- "acceptance through conduct" of a "valid offer of contract". You claim conduct outside the "scope of the license". He claims the terms about distributing modified versions together with source code are "covenants of return performance", which he duly performed. You claim the license covers the whole <>, including his application. He points out that <> is explicitly defined in GPL Section 0 to be a "derivative work under copyright law", and that while the paraphrase following this overstates the extent of the "derivative works" category, a raft of case law says that his program is not a "derivative work" of yours. Furthermore, it would be "contrary to the public interest" to allow a "contract of adhesion in rem" to disallow the "universal industry practice" of <>, for engineering purposes, many differently licensed works on common media, whether or not they <> in different and better ways than they would without one another's presence. He moves for "judgment as a matter of law", saying that the skeletal outline of facts already on the table is sufficient to demonstrate that none of your "legal theories" can possibly succeed. Judge agrees with him, saying that the parties have formed an incontestably "valid contract", contracts must be "construed against the offeror" in the presence of ambiguity, and any "defects in performance" that you might be able to demonstrate would almost certainly not "strike to the heart of the contract". Therefore you have no grounds for "rescission", and the license stands with respect to the original work and the "modified", <>, "copied", and "distributed" version created by the Evil Linker. No other "infringing work" has been created, because the <> of your work and his is neither a "derivative work" nor a "copyrightable compilation", merely a "parcel of goods". You have not been "harmed" in any way that you have not already "waived the right to sue" for, so you have no recourse under "tort"; you have no "contract in personam", so you cannot sue for "breach of contract"; you owe "costs" to the court and "cost of defense" to the defendant. Judge sends you home, a sadder but a wiser man. Or, if not wiser, preparing to cost yourself a lot more money by appealing the judgment. Everything in "double quotes" in that analysis is a legal term of art, _throughout_the_developed_world_. Everything in <> is not. (I am not a lawyer, this is not legal advice.) Anyone, even a Justice of the US Supreme Court, who tells you that he has the authority to bend the meaning of a legal term of art, in the presence of a mountain of applicable case law, is a shyster and a poltroon. When he's been doing it for twenty years, ten of them with the ostensible authority of a professor of law and legal history, and making $500K a year or so doing it, he's a charlatan and a racketeer. 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/