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

On 4/14/05, Glenn Maynard <glenn@zewt.org> wrote:
> The FSF FAQ says that *all* software linking against GPL libraries must
> GPL-compatible[1].  [2] contradicts the above even more directly.
> Now, it's possible that they're wrong; there's the obvious theory, for
> example, that they've long since realized this, but have no way of
> fixing it without admitting to a "loophole" in the GPL.  I've seen lots
> of these "derivative work" arguments (and others, such as whether the
> GPL is a contract), and have never seen a reply from the FSF addressing
> them; given their potential severity, that at least raises an eyebrow.
> Of course, I've never raised these with them personally, since I'm not
> even qualified to tell which arguments have enough grounding in reality to
> avoid wasting their time, and I don't know whether anyone else has; so
> I don't place too much weight in that particular theory.  (I don't believe
> they're unaware of the arguments, though, and dispelling misconceptions
> about the GPL is entirely in their interest, so I'd expect to see responses
> to these things.)

I've engaged in an extended discussion with the person on the other
end of licensing@fsf.org, to whom Eben Moglen directed me, on both the
"derivative work" and "GPL is a contract" points.  IANAL, and neither
is licensing@fsf.org, but I raised many of the US legal precedents
which I have previously cited on debian-legal.  Suffice it to say that
if the FSF has a leg to stand on, it's not visible through that
mechanism of inquiry.

They simply don't seem to be willing to admit that, whatever may have
been plausible in 198x as a strategy for legally implementing
copyleft, US courts in the last couple of decades have placed limits
on the pursuit of copyright infringement claims with regard to
software and entertainment properties that render the FSF's position
legally untenable.  And to my knowledge (and a certain amount of
Googling) neither Professor Moglen nor the FSF has ever publicly cited
any remotely modern precedent or statute in any jurisdiction that
supports their stance.  Certainly not in the Progress Software v.
MySQL affidavit, for instance.

I understand the argument that the weight of existing Free Software
"ought" to tilt the playing field in favor of entrants in new
categories that are themselves Free Software.  I even agree, to the
extent that new Free Software entrants are able to rework, extend,
merge, and cherry-pick from existing Free programs to meet new needs
-- in precisely the ways that require copyright license as I
understand it.  But I draw the line at the same sort of published
interface boundaries that appear to me to apply to competitive use of
proprietary software interfaces.

So I don't agree that the law "ought" to deny proprietary software the
use of GPL libraries, but I understand the argument from principle,
and accept it as the desire of at least a wing of the Free Software
movement.  But the only implementation of that "ought" available in
current law, in any jurisdiction that I have heard named, is not a
copyright license but rather a right-to-use license, which can only be
sensibly enforced with regard to published (non-trade-secret) source
code by means of a software patent.  Make of that what you will.

- Michael

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