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Re: non-free firmware in kernel modules, aggregation and unclear copyright notice.

On Sunday 10 April 2005 01:18 pm, David Schwartz wrote:
> 	You could do that be means of a contract, but I don't think you could it
> do by means of a copyright license. The problem is that there is no right
> to control the distribution of derivative works for you to withhold from
> me.

and then later...

> 	Well that's the problem. While copyright law does permit you to restrict
> the right to create derivative works, it doesn't permit you to restrict the
> distribution of lawfully created derivative works to licensees of the
> original work. As far as I know, no law has ever granted this right to
> copyright holders and no court has ever recognized this right. And I've
> looked. Courts have specifically recognized the absence of this right.

I have no idea what the context of this thread is...  its way to long and I 
just didn't keep up with it from the beginning, so you'll excuse me for not 
knowing the central issue seeking to be resolved.  What I can do is comment 
on the above statement and try to inject a little legal reality :)

First, the GPL is likely a contract, not just a license.  While there are 
great legal debates about what that means and the benefits of the two, I 
think its unwise to claim parts of the GPL are unenforceable because it 
relies solely on copyright law.  The GPL's warranty provisions are certainly 
not covered by copyright law...  and while there are some good arguments for 
why that's not necessarily proof that its a contract, it can't just be 

As for claim that copyright has no control over derived works.  I can preface 
my grant that allows you to make a derived work with whatever restriction my 
little heart desires.  If that means you can only make the derived work if I 
then get the complete rights to that work and you can only distribute to 
girls named Mary, then the copyright law empowers me to restrict that grant 
accordingly.  If I just give you a blanket right to make a derived work, then 
things might be a bit more hairy.  I could see a persuasive argument, but 
have no citable cases in front of me, that would treat a derived work similar 
to a joint work.  This e-mail is a joint work, because I combined copyrighted 
work of mine and of David's.  If I go out and sell this e-mail, David cannot 
stop me...  BUT, he can sue me for an accounting and get his rightful share 
of the profits (Fair Use and implied license issues aside).  Again, this is a 
right of copyright law, not just contract.


Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown

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