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

On 4/14/05, Humberto Massa <humberto.massa@almg.gov.br> wrote:
> David Schwartz wrote:
>  >    There are court cases on point that definitely
>  >disagree with you, for example Mirage Editions, Inv. v.
>  >Albuquerque ART (cutting a picture out of a book creates a
>  >derivative work).  Also National Football League v.  TVRadio
>  >Now (embedding someone else's broadcast with your
>  >advertisements through an automated process creates a
>  >derivative work).
> The embedding was not made by a fully automated process, was
> it? Didn't someone had to create the advertisements, with the
> purpose to be presented embedded in the broadcast? I suspect
> -- without looking at the case files at the moment -- that
> there was the creation of the derivative works...

I don't think the Mirage Editions court cared whether the process was
fully automated or not.  They rejected a defense based on the "first
sale" doctrine (once I buy a copy of a book, copyright law has nothing
to say about the conditions under which I may resell the physical
object) because Albuquerque A. R. T. "recast or transformed" fragments
(individual pictures) from the book prior to resale.  Implicit in the
court's logic is the fact that the copyright holder faced, not the
ordinary effect of the used book market on new book sales, but the
competition of Albuquerque A. R. T.'s tiles in the market for art

The software equivalent would be subscribing to MSDN (a subscription
to many Microsoft product releases for development and test purposes)
and then claiming "first sale" justification for selling the
individual CDs as retail software.  Separate from licensing agreement
considerations, I think a court would find that the "first sale"
defense is inappropriate in this situation.  In my opinion (IANAL),
the Mirage Editions court ought to have given less weight to the
"derivative work" angle and more to "the doctrine of first sale isn't
intended as a cover for deliberate misappropriation for competitive
purposes".  In any case, the case can't be stretched to cover
intrinsically uncopyrightable fragments, which is how recent US courts
have approached software interfaces required for (hardware, software,
and even wetware) interoperability.

The grant of preliminary injunction in the TVRadioNow case (
http://www.mpaa.org/Press/iCrave_Findings.htm ) doesn't appear to have
involved "derivative works" at all, nor to have hinged on (or even
mentioned) ad substitution.  The plaintiffs proposed a set of findings
of fact and conclusions of law, focused on the right of "making
available" (Berne convention) / "public performance" (17 USC), which
were adopted by the court as grounds for the injunction.  Commentators
(including the MPAA and the WIPO) have said all sorts of stupid things
about this case, but as a legal precedent with respect to the GPL it
seems irrelevant.

>  >    I think it would make a lot of sense if courts held
>  >that compiling and linking are analogous to format changes
>  >(like converting an audio-visual work from DVD to VHS). This
> Our (.br) courts do. I don't know (I'd have to read the cases
> you cited) why did those courts ignored the intellectual
> novelty requirement of a derivative work, but I'll look into
> it.

Citations supporting this assertion would be very interesting.  But
even so, I doubt that linking would be held to create a new
_derivative_ work rather than a _collection_ in a case that actually
hinged on this point, especially if the collection is of such a nature
as to contain no fresh creative intent.

Personally, I think the notion that there is a legal (as opposed to an
engineering or moral) objection to supplying firmware blobs in
conjunction with GPL drivers (compiled in or not) is almost as silly
as claiming to be offering the hex blob as an intrinsic portion of the
driver's source code under the GPL.  The vendor would almost certainly
(IANAL) be enjoined from objecting to its being copied, with or
without modification, by anyone for any purpose once they've
encouraged an employee, contractor, or regular correspondent to plop
it into Linus's tree.  But I doubt that its inclusion in a GPL driver
could be used to pry its source code out of the vendor.

- Michael

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