A few things first: to me, at this point in time, the question is not so much what is legally possible, but what the philosophical basis of open hardware should be. For free software, that's the four freedoms, and they have nothing at all to do with copyright law. In that light, the law is irrelevant.
Second, I've been skimming Groklaw for a couple of years now (Thanks! It's great!), and I realise full well that you know a whole lot more about legal issues than I do. So I'm very well aware of the dangers of disagreeing with you on legal issues. Having said that... :-) On Wednesday 20 December 2006 14:54, Pamela Jones wrote: > Here's how I understand it, but I'm not a lawyer either and that is > what you actually need: > > Copyright law covers copying, which implicates use, not just > distribution. In other words, it blocks the first step, and hence > all subsequent steps. That doesn't make sense to me. Why should you need to copy something first to be able to use it? Let me grab a random CD out of my CD rack. The text along the rim of the disc says: "All rights of the producer and of the owner of the work reproduced reserved. Unauthorised copying, hiring, renting, public performances and broadcasting of this record prohibited. (P) 2004 The copyright in these sound recordings is owned by Sanctuary Records Group Limited. (c) 2004 Sanctuary Records Group Limited." Now, if copyright covered use, then with all rights reserved, I wouldn't be able to legally play the disc. As far as I know I can, and I don't need a Fair Use provision for that either. What I can't do is copy the disc and/or sell copies, but I didn't have to. The copyright owner did that for me, and all I did was go to the shop and buy the CD. Now, if I write here that I really like the opening lyrics of the album, which go like "Driving out through the windmills, and some of them were still Sometimes it's hard to catch the wind, and bend it to your will." - James Raymond, "Lay Me Down" then I am distributing a partial copy of a work (the song, not the recording of it in this case, but that is also copyrighted), and I do need a Fair Use provision to be able to do this legally, because copyright generally forbids this and I don't have a licence that gives me permission. > A copyright license can add to the restrictions of copyright law or > it can soften them. This is legal. The license need not abide by the > restrictions of copyright law. It's what the author wants *instead* > of copyright law. Just read a Microsoft EULA to see how much you > can add to copyright law and still be probably legal. But is an EULA a copyright licence? And if it were, why was there such a controversy about whether click-wrap is as legally binding as an autograph? If it really were only a copyright licence, you wouldn't need the click-wrap, just like with the GPL. AFAIK, such an EULA is just a contract; it may include some terms that relate to copyright law, but it's not a pure copyright licence. Of course, a copyright licence could say "If you want to distribute copies of this drawing programme, you may do so, but only if you don't use it to draw pink rabbits." Then you would have a choice: you could either use it to draw pink rabbits and not copy it, or copy it, and refrain from drawing pink rabbits. In the former case, you don't have a copyright licence, but that's okay because you don't need one if you're only going to use the programme. In the latter case, you do need a copyright licence, but fortunately you can get one because you've kept to all its provisions. > The GPL is a copyright license. That means it isn't required to do > what copyright law says. In fact, it does not. It adds freedoms that > copyright law would take away. To compare it, then, with fair use, a > component of copyright law, is useless. If the license says you can > do it, you can, despite copyright law. And if Fair Use says you can do it, you can, despite any licence provisions. The copyright holder simply isn't given the power to stop you by copyright law. Indeed, you may not be in compliance with the licence, but as long as you don't do anything that would require a licence that is irrelevant. From the point of view of a user wishing to perform action X, the licence and Fair Use definitely can be compared: both give her the ability to do something legally. Whether that is because she is given permission by the copyright holder to do something that copyright law would otherwise prohibit, or because copyright law (i.e. the Fair Use provision and applicable case law) says that it isn't "prohibited unless the copyright owner gives you permission" doesn't really matter if you're the one who wants to do it. > The authors of the GPL (or of any other license) can set whatever > terms they wish, within the law, of course. They couldn't say you > have to give them your firstborn or you must steal Bill Gates' car as > a condition to using or distributing or modifying the software, > because you can't set illegal terms. But other than that, you can say > in the GPL that you can't have binary blobs, if you want to, and the > law will uphold your decision. But will it do the copyright holders any good? Everyone will still be able to have binary blobs as long as they don't do anything to the software you own the copyright on that they would need a copyright licence for. So, in my eyes, the legal question is whether that binary kernel module is a work derived from the kernel. If it is, then copyright law says that you must have permission from the kernel maintainers to distribute it, and because the kernel maintainers will not give you permission any other way, you can only do so by accepting the terms of the GPL. Which state that you have to provide the entire derived work under the GPL, including the source. If the binary kernel module is a separate work that is not derived from the kernel, then copyright law does not prohibit you from doing anything with it, and you don't need anyones permission to distribute it. You don't need to accept the terms of the GPL, and you can distribute all the binary blobs you like. Because copyright law is civil law and not criminal law, there is a third way (besides having a licence or invoking Fair Use) you can do things to copyrighted works that are normally reserved to the copyright holder, and that is if the copyright holder issues a promise not to sue if you do it. So then you are doing something that copyright law says you can't, but you get away with it because the copyright owner doesn't sue you. This seems to me to be what Linus has been doing with respect to binary kernel modules. Basically he says (if I understand correctly, I haven't followed the recent discussion) that he doesn't believe that it is a derived work (which is of course completely irrelevant from a legal perspective as he's not a judge), but that it doesn't matter anyway because he'll never sue you, so there will never be a chance for a judge to disagree with him and find you guilty of breaking copyright law when you distribute a binary-only module. Lourens
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