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Re: Fedora Freedom and linux-libre

On Jun 13, 2008, Les Mikesell <lesmikesell gmail com> wrote:

> Alexandre Oliva wrote:
>> On Jun 10, 2008, Les Mikesell <lesmikesell gmail com> wrote:
>>> No, you can take separate works and put them together as long as they
>>> remain separate works - as the stuff loaded into a device's firmware
>>> is separate from the kernel.
>> You're looking at only one side of the question.

> And you are only looking at the middle when it is aggregated,

I'm focusing on the moment of distribution because that's what matters
for copyright.  But if you look before of after, it remains just as
aggregated, and to me it's very clearly not mere aggregation.  There
was creative work in making room for the firmwares inside the source
files of various drivers.

>> The other is, is the
>> kernel separate from the device's firmware?

> That's a different question, unrelated to how that firmware got into
> the device.

I know.  I don't understand why you insist on this irrelevant point.
Execution is not what this is about.  The GPL says running the program
is not restricted, and by this it acknowledges that copyright does not
restrict that.  I'm talking about distribution.

>> Or, what evidence can you provide that the kernel is
>> an independent work from the firmwares, against the various pieces of
>> evidence that it is dependent on them?

> It's an interesting question, but it doesn't really relate to
> copyrights or derived works except in the upside down world of the GPL
> restrictions where no legal rulings exist.

1. The GPL doesn't establish restrictions.

2. This is only *the* important question to tell whether what we have
is mere aggregation or a combined work.  Because, again, this is not
about whether the firmware is a separate work, it's whether the GPLed
code in the linux-2.6.whatever tarballs is a separate work.  (How do
you name an allegedly separate work that doesn't even have a name of
its own?)

> I can't think about that without remembering the time when GPL
> software could not have existed without a commercial OS hosting it,

Didn't BSD start before GNU?  Sure, it wasn't entirely Free Software
back then, but it was hardly a "commercial OS" (nevermind that its
tapes were also for sale).

> and that history makes me believe that the GPL itself cannot prohibit
> this co-existence even if it is somewhat less necessary now.

The GPL does not prohibit anything.  It's copyright law that does.
Copyright law does not regulate co-existence.  It regulates copying,
distribution, and the creation of derived works.

>> gets code from library header files

> Using header files as needed to make something work was pretty much
> established as fair use in AT&T's failed suit against BSDI years ago.

Yup.  That's just using an interface.  Not the same as getting code
from library header files, which is what I wrote.  Think inline
functions, implicitly-instantiated C++ templates and the like.
Situations in which you end up with copies of significant portions of
the library code in your object files.

> The FSF claimed their argument about functionality applied even if
> no work was copied.

Yep, IIRC borrowing fictional characters, places, etc of a story does
amount to creating a derived work.

> We know the GPL imposes restrictions.

We don't.  You think you do, but you're mistaken.  Go read the GPL
again.  It goes "you have permission to do X this and that way.  you
have permission to do Y this and that way.  Nothing else grants you
permission to do X or Y in other ways."  Which is to say, it doesn't
prohibit, it's copyright law that prohibits other ways of doing X and
Y, and also any way of doing Z, when you don't have a license that
permits these things.

> But it doesn't restrict against aggregating other things.

It doesn't restrict mere aggregation, indeed.  Mere aggregation does
not require modification of any of the works, so it couldn't possibly
be restricted by copyright the way copyright works today.  That said,
copyright law may still restrict the *distribution* of the aggregate.
And it's distribution that I'm talking about.

And then, we're not talking about mere aggregation.  We're talking
about a combination in which at least one of the works had to be
modified to make room for the other, and that, if you take out the
other, it goes kaboom.  For modification, copyright law requires
permission.  So, yes, copyright law does restrict acts of aggregation
that are not mere aggregation.  (And the distribution of the result,
be it mere aggregation or any other form of collective or derivative

Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
Free Software Evangelist  oliva {lsd ic unicamp br, gnu.org}
FSFLA Board Member       ¡Sé Libre! => http://www.fsfla.org/
Red Hat Compiler Engineer   aoliva {redhat com, gcc.gnu.org}

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