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

@ 16/06/2004 16:01 : wrote Andrew Suffield :

 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

Brazilian copyright law distinguishes between derivative works, compilation works (in which the organization/selection/disposition of the contents *is* an intellectual creation on its own), and collective works (where you just select a load of works and bundle them together). Does not USC 17?

 -- 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.

This, I cannot accept. Mere aggregation does not create a derivative work: a derivative work is a transformation of something in something else. The *aggregation* of the works can be a copyrightable work (compilation) or not (collective). In both cases, in BR copyright law, you have to respect the licenses of the parts to redistribute; in the case of compilation, you have to respect the license of the work as a whole, too. One can argue that the GPL linking clause (linking with this library a derivative work makes) is overreaching; but you can argue, too, that it's a condition on the license "I license this library to you provide you treat a linked program as a derivative work". But in *no* *way* I can accept that a compiled kernel with a firmware in it is a derived work of the firmware. The only provision that made me think somethink *linked* with the kernel was a derived work (GPL) does not apply to the firmware.

 Debian can *not* afford to assume that it would win such a case, not
 least because of a lack of funding for good lawyers.

This is clear, but I think it's off the mark too: It's not Debian (or SPI) that cannot afford lawyers; it's Debian users that confide in Debian that they won'tt have to afford lawyers. And we're discussing exactly if there is a chance of Debian or a Debian User losing such a case (some judge declaring that a compiled kernel is a derivative of the firmware included in it). I don't think so, even if you don't agree with me.


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