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Re: Bug#239952: kernel-source-2.6.4: qla2xxx contains non-free fi rmware

Replying to oneself is something terrible, but I re-read this stuff a zillion times and I think I wasn't clear.

Humberto Massa wrote:

Matthew Garrett wrote:
Humberto Massa wrote:
the pf4m. It's only the opposite if the copyright holder (Qlogic,
IBM, whoever) says "no, we have a XX assembly file around here,
but we won't show you." /Then/ it's undistributable. Until then,
if it's in a file, with valid copyright assignment and license,
we _must_ assume it's the pf4m IMHO.
The copyright holder is perfectly free to put a GPL header on code
that can't be distributed under the terms of the GPL, and can then
give that code to somebody else.
<there is more, but cut>
I think this is somewhat difficult, legally, at least down here in Brasil. It's a serious case of the burden of proving that something is *not* the pf4m falling on who thinks it, and absolutely not on the copyright holder. Rephrasing: at least in what refers to GPL section 2a, I don't think it's possible a copyright holder put a GPL header in its code and later say "oooh, sorry, this was not GPL'd." More: I don't think it's possible a copyright holder put a GPL header in its code and, at least that code in that format not be the "Preferred Form 4 Modification".
Net result: if the notice is there, for all legal effects:
(1) the thing is GPL'd forever /unless/ the recipient of the file breaks the GPL; (2) if there is some kind of blob inside, the burden of proving that blob is a GPL-violation in other parts of the global stuff is on the person who alleges it; (3) in the case of firmware and linux kernel, there is a complication, namely _the code in the blob does not link to the kernel_; so, it is *not* in *any* way a derived work on the kernel;
My conclusions:
1. it's a firmware, inside a GPL-d file, unless you can prove it's not source code, it's the source code and you have *free software*; 2. it's not a GPL violation on the rest of the kernel, even if you prove it's not source code... but it starts begin non-DFSG-free software.


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