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Re: How long is it acceptable to leave *undistributable* files in the kernel package?

On Wed, Jun 16, 2004 at 02:56:00PM -0300, Humberto Massa wrote:
> @ 16/06/2004 14:31 : wrote Joe Wreschnig :
> > On Wed, 2004-06-16 at 09:41, Matthew Wilcox wrote:
> >
> >> On Tue, Jun 15, 2004 at 09:01:52PM -0500, Joe Wreschnig wrote:
> >>
> >>> At best that solves a third of the problem.
> >>
> >> It solves the problem at hand -- that Debian has no permission to
> >> distribute the file. You can now go back to wanking about firmware
> >> all you like. I shan't bother with that.
> >
> >
> > 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/.

"Link together" is completely irrelevant to "derivative work", except
that it sometimes happens at the same time. It is neither a necessary
nor a sufficient condition.

  A ''derivative work'' is a work based upon one or more preexisting
  works, such as a translation, musical arrangement, dramatization,
  fictionalization, motion picture version, sound recording, art
  reproduction, abridgment, condensation, or any other form in which a
  work may be recast, transformed, or adapted. A work consisting of
  editorial revisions, annotations, elaborations, or other
  modifications which, as a whole, represent an original work of
  authorship, is a ''derivative work''.

   -- Section 101, Title 17, United States Code

EU copyright law is a little different, and does it like this:

  ...the translation, adaptation, arrangement and any other alteration
  of a computer program and the reproduction of the results thereof,
  without prejudice to the rights of the person who alters the program...

   -- Article 4(b), Council Directive 91/250/EEC on the legal
      protection of computer programs

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.

  .''`.  ** Debian GNU/Linux ** | Andrew Suffield
 : :' :  http://www.debian.org/ |
 `. `'                          |
   `-             -><-          |

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