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Home > Archive > Debian Developers > June 2004 > Re: How long is it acceptable to leave *undistributable* files in the kernel package?
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Re: How long is it acceptable to leave *undistributable* files in the kernel package?
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| John Hasler 2004-06-15, 5:55 pm |
| Nathanael Nerode quotes:
> * The firmware contained herein is Copyright (c) 1999-2002 Emagic
> * as an unpublished work.
It's published now.
> * This notice does not imply unrestricted or public access to this
> * firmware which is a trade secret of Emagic...
Not any more it isn't.
And writes:
> This is the most extreme case because it explicitly states that there is
> no permission to distribute.
You left out this part:
* This firmware may not be modified and may only be used with the
* Emagic EMI 2|6 Audio Interface. Distribution and/or Modification of
* any driver which includes this firmware, in whole or in part,
* requires the inclusion of this statement.
I agree that Debian should not be distributing this, though.
--
John Hasler
john@dhh.gt.org
Dancing Horse Hill
Elmwood, Wisconsin
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| Josh Triplett 2004-06-16, 5:55 pm |
| Matthew Wilcox wrote:
> On Mon, Jun 14, 2004 at 12:57:15PM -0400, Nathanael Nerode wrote:
>
>
> I would think you would be better off asking on debian-legal rather than
> here. My non-lawyerly opinion is that since it's factually incorrect
> (it has been published, it is not a trade secret), these are probably
> incompetent people who couldn't organise a piss-up in a brewery, let
> alone a lawsuit.
Nevertheless, unless there is an active effort going on to contact the
copyright holder and get it changed, the files in question should be
removed ASAP.
- Josh Triplett
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| John Hasler 2004-06-16, 5:56 pm |
| Matthew Wilcox wrote:
> ...these are probably incompetent people who couldn't organise a piss-up
> in a brewery, let alone a lawsuit.
Counter-example: SCO.
I doubt they'd actually sue --their lawyer would explain estoppel to them--
but they might make stupid threats which could frighten distributors and
users.
--
John Hasler
john@dhh.gt.org (John Hasler)
Dancing Horse Hill
Elmwood, WI
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| Michael Poole 2004-06-16, 5:56 pm |
| Andrew Suffield writes:
> On Wed, Jun 16, 2004 at 03:18:32PM +0200, Thiemo Seufer wrote:
>
>
> Don't be absurd. Any resulting binary is obviously derived from both.
Why is that obvious?
I have a binary on my bookshelf that is a combination of works with
conflicting licenses. Is it a work derived from all of them, or is
it just an unofficial Debian CD install?
Michael Poole
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| Humberto Massa 2004-06-16, 5:56 pm |
| @ 16/06/2004 14:31 : wrote Joe Wreschnig :
> On Wed, 2004-06-16 at 09:41, Matthew Wilcox wrote:
>
>
>
> Debian now has permission to distribute the firmware. But in the
> process, it has lost permission to distribute other parts of the
> kernel.
No, no, and no.
Firmware with _any_ distributable license + kernel (GPL) = distributable
even if non-free.
Firmware and Kernel are agregating only, not derived works. They don't
link together; firmware is not a derived work of the kernel nor
/vice-versa/.
>
> I'm not sure how simply I can put this: - This is not wanking. - This
> is not related to the DFSG or SC at all. - This is an accusation of
> copyright infringement by a party whose software Debian distributes,
> and should be treated seriously.
>
This is ok.
> It also does not solve the problem in the way the release manager
> said it needs to be:
> http://lists.debian.org/debian-kern...6/msg00064.html
>
> This solution is legally and technically unacceptable. Whether I
> believe it violates the SC is not relevant.
It violates the SC (if it goes in a "main" section kernel, as opposed to
a "non-free" kernel) and this *is* relevant, to the project. Any kernel
with said firmware image must go in non-free. As an option, the firmware
can go in its own package (in non-free), independently of the means used
to load the firmware. But it really should be removed from Debian
kernel-source. Because of the SC, not because of any other consideration.
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| Michael Poole 2004-06-16, 5:56 pm |
| Andrew Suffield writes:
> The compiled kernel is almost certainly a derivative of the firmware
> included in it. A good lawyer might be able to get you out of
> this. Debian can *not* afford to assume that it would win such a case,
> not least because of a lack of funding for good lawyers.
Anyone who wanted to go after Debian would have a hard time of it:
They would have to prove not only that the combined kernel is a
derived work, but also that there were no binary blobs in the kernel
when they started contributing and that they still have standing to
make a claim. Estoppel would bar a claim if the plaintiff first
contributed code to a kernel that already had binary blob components.
A merely decent lawyer may be able to invoke laches depending on how
long an author was silent after the first binary blob was added to the
kernel, but merely decent lawyers are not much cheaper than good
lawyers.
By way of example, the DGRS driver firmware was added to Linux
sometime before linux-2.0 was released in June 1996. It stayed more
than seven years. That kind of delay in discovering alleged rights
reminds me more of a certain Lindon, Utah-based company than of
serious developers, and smacks of revisionist history.
Michael
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| Michael Poole 2004-06-17, 5:53 pm |
| viro@parcelfarce.linux.theplanet.co.uk writes:
> On Wed, Jun 16, 2004 at 03:21:38PM -0500, Joe Wreschnig wrote:
>
> [firmware as mere aggregation]
>
> Out of curiosity, could you please show an email from such copyright
> holder (with some references to the code in kernel contributed by
> that person) that would say so?
>
> It's not impossible that such a thing exists; however, I've heard the
> quoted statement a *LOT* and so far it always turned out either "FOAF
> heard about that somewhere" or "well, there's got to be at least one!".
>
> Care to show evidence for your statement? alt.folklore.urban rules,
> please.
A little Google shows that Yggdrasil has made such an argument:
http://lists.debian.org/debian-lega...4/msg00130.html
Unfortunately for Mr. Richter, Linux does not seem to contain any
copyright notices attributable to him or Yggdrasil before 2000. As I
cited elsewhere, this is at least FOUR YEARS after firmware was
included in the kernel, so he cannot fairly claim infringement. He
should have known that binary firmware existed in the kernel before.
Michael
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| Michael Poole 2004-06-17, 5:53 pm |
| Raul Miller writes:
> It's a compilation work.
>
> [Some people might think that "compilation" and "aggregation" are the
> same thing -- but the GPL goes to great lengths to specify that it does
> apply where the compilation is a program and not where the compilation
> is not a program.]
I think you are confusing language. When the GPL talks about the
Program, it refers to "any program or other work" licensed under the
GPL; see section 0. It deals with collective (in contrast to
derivative) works in just two paragraphs: one exempts "mere
aggregation" from coverage; the other seems explanatory rather than
normative. Calling that "great lengths" is a little deceptive.
Michael
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| Michael Poole 2004-06-17, 5:53 pm |
| Andrew Suffield writes:
>
> These are stock defenses that are invoked as a matter of course, in
> case something useful turns up during discovery, and which are
> notoriously difficult to prove. You need to prove *malicious*
> *intent*, not incompetence, for these defences to work. Not a good
> idea to bet on them.
Incompetence (or laziness) on the part of the plaintiff is a perfectly
adequate reason to invoke either of those defenses. Until you cite
specific case law, I will disbelieve your claim that proof of intent
is necessary, since Google finds dismissals on those grounds that
never mention malicious intent.
> We have not always been paying such close attention as we currently
> do. Anybody on -legal can tell you that much. This is partially
> because we're getting better at it, and partially because SCO has
> demonstrated that it's important we be good at it.
As of the last filings and rulings I saw, SCO has only demonstrated
that someone with more money than sense can cost other people a lot in
legal fees. This is not really news, and as a stock manipulation
scheme, it is proving to not have legs. If someone else down the road
wants to involve free software in another frivolous lawsuit, no amount
of diligence on Debian's part will prevent it.
Yes, Debian should make sure it will not end up on the wrong end of a
valid lawsuit, but that can be satisfied by other means than claiming
that widely used packages violate the GPL.
Michael
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| Michael Poole 2004-06-17, 5:53 pm |
| Raul Miller writes:
> On Wed, Jun 16, 2004 at 09:11:32PM -0400, Michael Poole wrote:
>
> The GPL only uses the word "collective" in one sentence, not two:
>
> Thus, it is not the intent of this section to claim rights or contest
> your rights to work written entirely by you; rather, the intent is
> to exercise the right to control the distribution of derivative or
> collective works based on the Program.
>
> However, this sentence makes clear that "works based on the Program"
> is meant to include both derivative works based on the Program and
> collective works based on the Program.
In addition, mere aggregation of another work not based on the
Program with the Program (or with a work based on the Program) on
a volume of a storage or distribution medium does not bring the
other work under the scope of this License.
This sentence deals just as much with collective works, and makes
clear that "mere aggregation" is not sufficient to invoke GPL coverage
of the other work(s). What is your point?
> So what is this "deception" you're talking about?
The deception is calling it "great lengths." When I said the GPL
"deals with collective works in just two paragraphs" you focused on
the one where they are mentioned by name and entirely ignored the
other (because you don't like what it says?).
Michael
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| Michael Poole 2004-06-17, 5:53 pm |
| Raul Miller writes:
>
> You seem to be ignoring everything the GPL says about "works based on
> the Program".
Maybe you don't realize it, but a "mere aggregation" is also a work
based on the Program: it is a collective work. Exactly how many
collective works are covered by that phrase is open to debate, but you
cannot ignore the GPL's treatment of such works.
Michael
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| Brian Thomas Sniffen 2004-06-17, 5:53 pm |
| Michael Poole <mdpoole@troilus.org> writes:
> A little Google shows that Yggdrasil has made such an argument:
> http://lists.debian.org/debian-lega...4/msg00130.html
>
> Unfortunately for Mr. Richter, Linux does not seem to contain any
> copyright notices attributable to him or Yggdrasil before 2000. As I
> cited elsewhere, this is at least FOUR YEARS after firmware was
> included in the kernel, so he cannot fairly claim infringement. He
> should have known that binary firmware existed in the kernel before.
Nonsense. He made his code available to others under the GPL. Those
others (Linus Torvalds, Alan Cox, Red Hat, etc) made a work derived
from his work and that of others and distributed it. They violated
the license they had from him when they did so.
-Brian
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| Michael Poole 2004-06-17, 5:53 pm |
| Andrew Suffield writes:
> On Wed, Jun 16, 2004 at 10:36:11PM -0400, Michael Poole wrote:
>
>
> Judge's discretion, probably coupled with bad lawyering on the part of
> the prosecution.
That is not case law. It is not even a historical writing that
counsel could cite. Show me the money, or I will dismiss your claim
as your typical bullshit.
>
> "Yes, Debian should make sure it will not end up on the wrong end of a
> valid lawsuit, but that can be satisfied by other means than avoiding
> breaking the law"
>
> Umm... how?
"'Yes, Debian should make sure it will not end up on the wrong end of
a valid lawsuit, but that can be satisfied by avoiding distribution of
software' Umm... how?"
Come, now! If you want Debian to get out of the distribution
business, say so. No need to twist my words in support of your
agenda.
Michael
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| Humberto Massa 2004-06-17, 5:53 pm |
| @ 17/06/2004 11:07 : wrote Thiemo Seufer :
> Raul Miller wrote:
>
>
> Fine. The copyright for the compilation lies by the one who did the
> compilation. This is Linus Torvalds, I guess.
>
> Thiemo
>
not here in BR. Or at least not in the way you _seem_ to be implying.
Let's just substitute the word "compilation" by the word "anthology", to
avoid the obvious computer-related term:
The copyright for "the anthology" (the organization, selection and/or
disposition of contents) _of_ _the_ _pristine_ kernel tree belongs to
Linus Torvalds. The copyright for "the parts included in the anthology"
belongs _only_ _to_ _their_ _authors_ except in the cases where some
part is a derivative work of some other part.
This last case happens a lot, historically the first non-Linus patch is
a derived work on the Linus-only kernel, so you have:
linux_v0 (last LinuS-only kernel) == (C) Linus Torvalds
patch_0 (first non-Linus patch) == (C) Kernel Contributor #0 + Linus
Torvalds (it's a derivative work)
linux_v0p0 = linux_v0 + patch_0 [ IN THE LINUS FTP TREE ] ==>
THE ANTHOLOGY CALLED Linux Kernel == (C) Linus Torvalds
THE PARTS == some parts (C) Linus Torvalds
and other parts (C) Linus Torvalds + Kernel Contributor #0
now let's say this combined kernel accepts as-is a BSD LKM for ppp,
p.ex. *and* that it's licensed GPL-compatible 2-clause-BSD/MIT/X. say
Linus includes this in its kernel tree.
now we have:
linux_v0p0ppp == linux_v0 + patch_0 + ppp ===>
THE ANTHOLOGY CALLED Linux Kernel == (C) Linus Torvalds
THE PARTS == some parts (C) Linus Torvalds,
other parts (C) Regents of USC,
and other parts (C) Linus Torvalds + Kernel Contributor #0
complicating a litlle bit more: Kernel Contributors #1, #2, and #3 patch
respectively the kernel, patch_0, and ppp:
linux_v0p3ppp == linux_v0 + patch_0,1,2,3 + ppp ===>
THE ANTHOLOGY CALLED Linux Kernel == (C) Linus Torvalds
THE PARTS == some parts (C) Linus Torvalds [1],
other parts (C) Regents of USC [2],
other parts (C) Regents of USC + Kernel Contributor #3 [3],
other parts (C) Linus Torvalds + Kernel Contributor #2 +
Kernel Contributor #0 [4],
and other parts (C) Linus Torvalds + Kernel Contributor #1 [5]
[1] the untouched kernel parts
[2] the (untouched) ppp parts
[3] the patched by patch_3 ppp parts
[4] the patched by patch_0 and patch_2 kernel parts
[5] the patched by patch_1 kernel parts
Easy, huh? extrapolate for ten+ years of patching and aggregating and
you'll get where we are today.
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| Humberto Massa 2004-06-17, 5:53 pm |
| @ 17/06/2004 00:43 : wrote Raul Miller :
>
>
>On Wed, Jun 16, 2004 at 11:12:37PM -0400, Michael Poole wrote:
>
>
>
>My point is that any sentence talking about "a work based on the
>Program" is by default talking about both derivative and collective
>works.
No way. The clause #0 of the GPL is crystal clear: << a "work based on
the Program" means either the Program or any derivative work under
copyright law >> DERIVATIVE. Under copyright law.
_Not_ collective/compilation/anthology.
>
>
>
>You seem to be ignoring everything the GPL says about "works based on
>the Program".
>
"Works based on the Program" are only the _derivative_ works.
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| Humberto Massa 2004-06-17, 5:53 pm |
| @ 17/06/2004 01:06 : wrote Michael Poole :
>Raul Miller writes:
>
>
>
>
>Maybe you don't realize it, but a "mere aggregation" is also a work
>based on the Program: it is a collective work. Exactly how many
>collective works are covered by that phrase is open to debate, but you
>cannot ignore the GPL's treatment of such works.
>
>Michael
>
>
>
>
Not under the terms of the GPL. The GPL says (in its section #0): << a
"work based on the Program" means either the Program or any derivative
work under copyright law >>. _Derivative_ and _under_ _copyright_ _law_
are the keywords here. As I said innumerous time today, collective
(anthology) works and derivative works are very distinct beasts under
copyright law.
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| Humberto Massa 2004-06-17, 5:53 pm |
| @ 17/06/2004 15:30 : wrote Raul Miller :
>
>On Thu, Jun 17, 2004 at 03:24:23PM -0300, Humberto Massa wrote:
>
>
>copyright
>
>
>
>I did not say that there was no distinction.
>
>I did say that there was no dichotomy.
>
>
>
But there is. You see, in Law, when you enumerate things, you are
separating things. (dichotomy = two separated in Greek) When GPL#0 says
"derivative works under copyright law", it's excluding: (under BR
copyright laws) originary works, collective works, anthology/compilation
works. It's saying "only those defined as derivative under copyright
law, which /in/ /casu/ would be "those works that are an intellectual
creation on their own, but result from a transformation of another
work." (law 9610/98).
So, there really is a dichotomy. Derivative works and Anthology works
are separated in their birth. If you want both, you *must* say
"derivative works of the program *and* anthology works containing the
program". You can't (in the realm of the GPL) even say "works based on
the program", because you defined this in section #0 as begin
"derivative works". /solamente/.
As I showed you in the last e-mail, the Linux kernel is an anthology
works, where the individual works have an intrincated graph of
derivation (like, as factually incorrect examples: ext2 being derived on
VFS [or is it /vice-versa/??], both being derived on the VM code, and so
on and on and on). The individual works are *each* and *every* patch
that entered the kernel tree in the last eleven years.
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| Michael Poole 2004-06-17, 5:53 pm |
| Raul Miller writes:
> On Thu, Jun 17, 2004 at 03:46:14PM -0300, Humberto Massa wrote:
>
> I'm writing in english, not greek.
>
> If you think there is some legally relevant document which means that a
> collective work can't be a derivative work (for example, if you think that
> an anthology can't be a derivative work based on the contained stories,
> or that a subsequent edition of that anthology can't be a derivative
> work of an earlier edition), please cite that specific document.
This is not the way the law works. The presumption is not "this work
is a derivative work because Raul Miller claims it is." Humberto has
cited reasons why the kernel tarball (or binary images) should be
considered a compilation rather than a derivative work. You have only
claimed that they should be a derivative work, without referring to a
"why."
http://digital-law-online.info/lpdi1.0/treatise6.html discusses the
differences between derivative works and compilations, and quotes a
congressional report that elaborates:
Between them the terms "compilations" and "derivative works" which
are defined in section 101, comprehend every copyrightable work that
employs preexisting material or data of any kind. There is
necessarily some overlapping between the two, but they basically
represent different concepts. A "compilation" results from a process
of selecting, bringing together, organizing, and arranging
previously existing material of all kinds, regardless of whether the
individual items in the material have been or ever could have been
subject to copyright. A "derivative work," on the other hand,
requires a process of recasting, transforming, or adapting "one or
more preexisting works"; the "preexisting work" must come within the
general subject matter of copyright set forth in section 102,
regardless of whether it is or was ever copyrighted. {FN31:
H.R. Rep. No. 94-1476 at 57}
See also http://www.copyright.gov/circs/circ14.html, which remarks
both that the whole of the derivative work must represent an original
work of authorship, rather than an arrangement of distinct works, and
that mechanical (non-creative, ergo non-copyrightable) transformation
of the original does not make a derivative.
Michael
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| Michael Poole 2004-06-17, 11:50 pm |
| Raul Miller writes:
> Ok, this is good -- I did not know that.
>
> However -- by this definition, the linux kernel is very definitely a
> derivative work, and the firmware is content which has been incorporated
> into the kernel.
>
> According to what you just cited, the concept of a collective work
> doesn't enter into the picture at all.
The kernel (I assume as a whole) is a derivative work of what?
I would argue that the kernel is a compilation of what executes on the
host CPU with other parts (boot logos, fonts, and firmware data). The
executable part may be a derivative in part of Adam Richter's code,
but that does not necessarily make the kernel as a whole a derivative
of his work.
The GPL is clear how derivative works must be treated, but it is not
clear how it applies to a compilation (given, among other things, what
it says about "mere aggregation" works).
The only court case I know of that dealt with the issue of "derivative
work" with respect to the GPL was mysql AB vs Progress Software
Corporation, which settled. While the FSF claims a broad definition,
Lawrence Rosen (general council for OSI and author of the Open
Software License) disagrees at http://www.rosenlaw.com/html/GL18.pdf.
Even if the static or dynamic library question is resolved in
agreement with the FSF, embedding of firmware may not: I would guess
the question of derivative work (in terms of the kernel's host
executable code) would turn on the nature or detail of the interfaces,
rather than the distribution method of the firmware.
Michael
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