Re: Why is Nvidia given GPL'd code to use in non-free drivers?

[Wolfgang Walter <ml-linux-kernel@studentenwerk.mhn.de>]

On Sunday 05 January 2003 01:17, David Schwartz wrote:
> On Sat, 04 Jan 2003 18:44:58 -0500, Richard Stallman wrote:
> >Defending shrink wrap licensing agreements, arguing to weaken
> >fair use and
> >first sale doctrines, and arguing that if you include a header it's
> >a derived
> >work is a strange way to defend intellectual freedom.
> >
> >Those are not my views.  Are you confusing me with someone else?
>
> 	Then please explain to me how the GPL comes to apply to a person who
> did not agree to it as a condition of receiving a copyrighted work.
> Please explain to me why you think that the GPL should have applied
> to kernel modules that only include header files.
>

You seem not to understand copyright.

The GPL does not affect the user of the software. If you have bought a copy of 
Red Linux distribution cd i.a. it is not necessary to accept the GPL (or BSD 
or whatever license) to use the software. You may sell your received copy 
when ever you want to ever you want for whatever price you can get - if you 
do not keep a copy. As you can do with microsoft windows - if you bought it 
(and did not licensed it from microsoft). I.a. it is not necessary to provide 
source code because it is Red Hat which a) made the copy and b) did so by 
accepting the GPL. 

But if you want to make and use or distribute copies of that CD or distributed 
works, well, then you must get explicit permission from the copyright owners 
- as you would have to for any copyrightable work. This is so because of 
copyright law. If you buy the software you only have the right to use it. You 
do not have by default the right to distribute copies, make or distribute 
derived works etc.

If the CD would be a copy of microsoft windows you would have to negotiate 
with microsoft - probably they would not allow that you distribute a derived 
version.

Now the authors of the software on the Red Hat CD make you an offer: you may 
accept the GPL. If you do so, they allow you to make and distribute copies or 
derived works under certain conditions. You don't have to accept the GPL. If 
you do not, you may try to negotiate for other terms with the copyright 
holders.

> 	That's a lot better than trying to arm twist others in to providing
> our freedom to use their works. When you talk about forcing a person
> to distribute the source code to a derived work, you are only talking
> about their control over what they added. When a person creates a

Do you understand? You are not allowed to produce derived works without 
permission of the copyright owner. He may do so under what consitions he want 
(or simply does not allow you to do so at all).

With the GPL the copyright owner(s) of the work grants you the right to do so 
under certain conditions described under the GPL. One right is to produce 
derived works at all and 

Have you ever got permission from microsoft or adobe to produce derived works 
from windows 2000 or photoshop?

> derived work of an open source work, all they have to offer is the
> value they added. In the name of freedom, you take their control over
> their work from them.

No, they allow you to do the work at all. By default you would not be allowed 
to add value at all.

>
> 	This is the same "freedom" that socialism promises the workers. They
> call it the freedom to own the machinery they use to produce.
> Analogously, this "freedom" is really just the loss of the freedom of
> ownership.

No. The authors of the work has with your words - the "ownership" of his work. 
Law says that one facete of that "ownership" is that he may allow or forbid 
derived works. And if he allows someone to produce a derived work its under 
his conditions.

The GPL does not restrict you. Contrary, it uses copyright law to establish a 
pool of software with much more freedom as copyright law gives to you. It 
only does not give you so much freedom to deny other people the same 
freedoms. The copyright holders can only do so, because copyright law itself 
give you none of these rights at all.

Richard Stallmann - if I understand him right - beliefs that the rights the 
GPL grants should be granted (for software) by copyright law itself and 
therefor granted for every software. You may argument about that.

But you cant't argument that an author as owner of his work should use a less 
restrictive license than the GPL so you can make a derived work and 
distribute it under a more restrictive license than GPL. Why should he want 
to allow that at all (a lot of peoply allow that choosing a BSD-license - 
nice gift)? Nobody can force him to do so. Its not the GPL which restricts 
your freedom, it is copyright law and the author(s) of the work you want to 
made a derived work from.

It is simply impossible that authors have control under which condition 
derived works may be made from their works AND in the same time have the 
right to made derived works from works of other authors without control of 
these authors.


By the way: a completely different question is if a work is a derived work. Is 
a driver for nvidia a derived work. Well, the GPL can not define that, of 
course - because it only applies to derived works. No license can that. A 
licence may state what it will not regard as a derived work.

The courts decide what is a derived work. The courts decide that your book 
with a main character named Harry Potter, wizard studying in Hogwards, is a 
derived work from 4 those well known Rowling-books and that you may not 
distribute it without permission.


Greetings,

Wolfgang Walter
-- 
Wolfgang Walter
Studentenwerk München
Anstalt des öffentlichen Rechts
EDV
Leopoldstraße 15
80802 München
Tel: +49 89 38196-276
Fax: +49 89 38196-144
wolfgang.walter@studentenwerk.mhn.de
http://www.studentenwerk.mhn.de/