Re: GPL vs non-GPL device drivers

From: Michael K. Edwards
Date: Mon Feb 19 2007 - 17:48:45 EST

On 2/19/07, Trent Waddington <trent.waddington@xxxxxxxxx> wrote:
On 2/20/07, Michael K. Edwards <medwards.linux@xxxxxxxxx> wrote:
> Bah. Show us a citation to treaty, statute, or case law, anywhere in
> the world, Mr. Consensus-Reality.

It's a given.. are you seriously contending that if you combine two
copyright works you are not obliged to conform with the conditions of
the license on one of them when making a copy of the combined work?

There is no legal meaning to "combining" two works of authorship under
the Berne Convention or any national implementation thereof. If you
"compile" or "collect" them, you're in one area of law, and if you
create a work that "adapts" or "recasts" (or more generally "derives
from") them, you're in another area of law. A non-exclusive license
can authorize one of these categories of conduct and not the other, or
can slice and dice the scope of the license along almost any axis of
law or fact. But what it can't do is use the phrase "derivative work"
passim -- a legal term of art invented by US judges and legislators to
corral a class of infringing works and treat them differently from
compilations -- and pretend that it also encompasses compilations
(copyrightable and otherwise; there is an originality threshold here
too) and use by reference.

If you are just arguing about the term, what term do you find more
appropriate? Compilation?

If the amount of "adapting, translating, and recasting" done to the
pre-existing works crosses a minimum threshold of creative expression
(not "sweat of the brow", at least not under Feist), then you've
created a derivative work. If the amount of "selecting and arranging"
done to create a compilation crosses a similar threshold of creative
expression, you've created a copyrightable compilation or collective
work. If neither, then all you've done is copy and distribute.
That's how the law works. IANAL, TINLA.

You guys seem to love pointless semantic arguments. Are you always in
violent agreement?

Perhaps pointless if you were the sole audience, since you seem
disinclined to evaluate the accuracy of your beliefs given novel
information backed by extensive citations to the primary literature.
Not pointless if it disabuses other people, with less deeply ingrained
errors of understanding, of the notion that they can trust certain
very heavily financially interested parties to tell them the truth
about what the law says.

- Michael
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