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Re: TG3 firmware report...

Matthew Garrett wrote:

> Florian Weimer <fw@deneb.enyo.de> wrote:
>> * Nathanael Nerode:
>>> Until they do one of these two things, the firmware is not safe to
>>> distribute.
>> Of course it is safe to distribute.  What do you fear?  That Broadcom
>> might sue you for distributing something that they have written and
>> released under the GPL, and actually have a case?

Yes.  They would have an excellent case.  They didn't grant explicit
permission to distribute without source.  I don't have source, so I'd
better not distribute.  If I were defending myself, I'd have to claim that
they'd granted implicit permission, and I don't think I'd have better than
a 50-50 chance of winning; see below.

>> They might as well 
>> sue Debian because the toolchain supports the SB-1 architecture.
> Indeed. It's obviously the intention of the licensor to provide code
> that can be distributed.

Maybe it's obvious to you.  It's certainly not obvious to me.

In actual fact, Broadcom released the firmware code under a license which
does not grant permission to redistribute.  (It requires source but the
source is not provided; see Thomas Bushnell's message which summarizes the
situation at http://lists.debian.org/debian-devel/2004/10/msg00705.html .)
To me, this means that Broadcom didn't know what the hell it was doing.  I
cannot divine Broadcom's actual intentions from that, and Broadcom can
easily and convincingly claim that it intended something different from
what you assume.

If Broadcom (or some irresponsible successor company; think SCO) decided to
sue for copyright infringement, they could claim that they had never
intended to allow people in general to redistribute the firmware without
source -- that it was just for them to distribute, and perhaps for
kernel.org as well -- that any further distribution was inadvertent -- and
they would actually have a pretty good case, as far as I can tell.
(Of course, if you get an actual legal opinion from a copyright lawyer
saying differently, I will of course concede, since IANAL.)

Now, if Broadcom could be contacted, and they said, "Oh, we meant to allow
anyone to redistribute the hex/binary blobs without further source code,"
that would be different.  Then it would be safe to distribute with a copy
of that statement.

I have not been able to get such a clarification from Broadcom, and I have
tried.  If you can get such a clarification, more power to you.

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