Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

Humberto Massa
2005-04-14T18:26:37Z

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