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Old 06-09-2008, 07:29 AM
David Woodhouse
 
Default Fedora Freedom and linux-libre

On Sun, 2008-06-08 at 17:29 -0500, Les Mikesell wrote:
> Do you mean the part about identifiable sections that are not derived
> from the program and can be reasonably considered independent and
> separate works? That would seem the only possible interpretation for
> firmware blobs.

Exactly that part, yes. Where it says that the GPL applies to them
anyway.

Specifically, the bit where where it says that the GPL (obviously)
doesn't "apply to those sections when you distribute them as separate
works. But when you distribute those _same_ sections as part of a whole
which is a work based on the Program, the distribution of the whole must
be on the terms of this License, whose permissions to other licensees
extend to the entire whole, and thus to each and every part regardless
of who wrote it."

I agree with you that that seems to be the only possible interpretation
for firmware blobs. And when we take them and include them in the
bzImage and distribute that, the only possible interpretation is that
they are 'part of a whole which is a work based on the Program'.

You do get an exception for 'mere aggregation on a volume of a storage
or distribution medium', which covers stuff like shareware/freeware CDs
on the covers of magazines -- so unrelated stuff which happens to be
shipped together in _that_ form doesn't get infected by the GPL.

But it's extremely hard to argue that combining non-GPL'd firmware into
the kernel image is 'mere aggregation on a volume of a storage or
distribution medium'.

I know some people like to conveniently abbreviate that to 'mere
aggregation' -- since "mere" doesn't really mean much, so then they like
to claim it actually excuses _all_ forms of aggregation, effectively
cancelling out the previous two paragraphs of the GPL in their entirety.
I don't find that interpretation particularly realistic, though --
although nobody is right or wrong about it until/unless a court rules on
it, of course.

To claim that there is no _legal_ basis for such a restriction is also
incorrect. Nothing but the GPL gives you the right to distribute the
Linux kernel. If the GPL has conditions with which you fail to comply,
then you may not distribute the Linux kernel.

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Old 06-09-2008, 07:40 AM
David Woodhouse
 
Default Fedora Freedom and linux-libre

On Sun, 2008-06-08 at 18:34 -0400, Alan Cox wrote:
> Actually Dave I continue to think you are the mistaken one in the case
> of firmware files. I would suggest you read up on derivative works
> rather than your pet interpretation of the GPL.

Are you suggesting that the bzImage we ship is not derived from the
kernel source? Or that to distribute it, you don't need the permission
which is granted by the GPL?

It is a common mistake to think that because the firmware itself is not
derived from the kernel, it therefore _cannot_ be touched by the GPL
whatever the GPL actually says.

This is not so. A software licence can make whatever restrictions it
likes (within reason).

If you are required to pay money, you cannot refuse on the basis that
the money is not a derived work of the software.

If you are required to send a postcard, you cannot refuse on the basis
that the postcard is not a derived work of the software.

If you are required to place some of your own work under GPL, you cannot
refuse on the basis that your own work is not a derived work of the
software.

If you are required to sacrifice your first-born child, one would
sincerely hope that your reason for refusal is _not_ the fact that your
first-born child is not a derived work of the software.

Of course you _can_ refuse, in all of the above cases -- for whatever
reasons you like. But if you do refuse, then you have no permission to
distribute the software in question.

(In the latter case, the person who released software under that licence
may get in trouble for promoting an attitude of violence, but you still
wouldn't be permitted to use his software).

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Old 06-09-2008, 09:18 AM
Alan Cox
 
Default Fedora Freedom and linux-libre

On Mon, Jun 09, 2008 at 08:40:33AM +0100, David Woodhouse wrote:
> Are you suggesting that the bzImage we ship is not derived from the
> kernel source? Or that to distribute it, you don't need the permission
> which is granted by the GPL?

Nothing of the sort. I'm suggesting conventional interpretations of copyright
law might apply. The ones the lawyers seem to consider conventional

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Old 06-09-2008, 09:20 AM
Alan Cox
 
Default Fedora Freedom and linux-libre

On Mon, Jun 09, 2008 at 08:29:28AM +0100, David Woodhouse wrote:
> I agree with you that that seems to be the only possible interpretation
> for firmware blobs. And when we take them and include them in the
> bzImage and distribute that, the only possible interpretation is that
> they are 'part of a whole which is a work based on the Program'.

Disagree.

> But it's extremely hard to argue that combining non-GPL'd firmware into
> the kernel image is 'mere aggregation on a volume of a storage or
> distribution medium'.

Disagree.

You are trying to think computer about matters which are not computing. I
would suggest you go and learn about the actual legal caselaw in the case
things like books, and also on the boundaries of contract created by copyright.


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Old 06-09-2008, 12:05 PM
Kevin Kofler
 
Default Fedora Freedom and linux-libre

David Woodhouse <dwmw2 <at> infradead.org> writes:
> (In the latter case, the person who released software under that licence
> may get in trouble for promoting an attitude of violence, but you still
> wouldn't be permitted to use his software).

Actually, as far as I know (but I am not a lawyer!), in most European countries
you can, because the clause requiring murder is obviously invalid/unacceptable
("unzulässig" in German-speaking countries) and thus unenforcible.

Kevin Kofler

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Old 06-09-2008, 04:36 PM
Les Mikesell
 
Default Fedora Freedom and linux-libre

David Woodhouse wrote:

On Sun, 2008-06-08 at 17:29 -0500, Les Mikesell wrote:
Do you mean the part about identifiable sections that are not derived
from the program and can be reasonably considered independent and
separate works? That would seem the only possible interpretation for
firmware blobs.


Exactly that part, yes. Where it says that the GPL applies to them
anyway.


Can you quote that? My copies all say it doesn't.


Specifically, the bit where where it says that the GPL (obviously)
doesn't "apply to those sections when you distribute them as separate
works. But when you distribute those _same_ sections as part of a whole
which is a work based on the Program, the distribution of the whole must
be on the terms of this License, whose permissions to other licensees
extend to the entire whole, and thus to each and every part regardless
of who wrote it."


Firmware that happens to be aggregated for convenient delivery and
installation is no more a part of the GPL'd work than firmware that is
already in your machine or than it would be if someone sent you a
handful of new ROMs to plug in, or if you had a separate pre-run
initialization program that downloaded all these separate components and
registry initializers.



I agree with you that that seems to be the only possible interpretation
for firmware blobs.


Aggregation is the only possible interpretation since it is just a
delivery mechanism for something no more related than ROM contents would
be.



And when we take them and include them in the
bzImage and distribute that, the only possible interpretation is that
they are 'part of a whole which is a work based on the Program'.


No, _how_ you aggregate something is irrelevant. You are talking about
file formats and containers here.



You do get an exception for 'mere aggregation on a volume of a storage
or distribution medium', which covers stuff like shareware/freeware CDs
on the covers of magazines -- so unrelated stuff which happens to be
shipped together in _that_ form doesn't get infected by the GPL.


Form has nothing to do with it - the terms apply to the content, not the
intermediate storage.



But it's extremely hard to argue that combining non-GPL'd firmware into
the kernel image is 'mere aggregation on a volume of a storage or
distribution medium'.


It is exactly as much a part of the kernel as firmware that is already
in ROM is - that is, not at all.



I know some people like to conveniently abbreviate that to 'mere
aggregation' -- since "mere" doesn't really mean much, so then they like
to claim it actually excuses _all_ forms of aggregation, effectively
cancelling out the previous two paragraphs of the GPL in their entirety.


No, the GPL applies to components that actually are parts of a work as
whole or derivatives. Firmware is something separate, just carried
along for the ride. It could clearly be already present in ROM or
pre-loaded by something other than the kernel.



I don't find that interpretation particularly realistic, though --
although nobody is right or wrong about it until/unless a court rules on
it, of course.


Exactly - until a court says that the file format used to carry a
separate component is relevant, it is just as much a separate entity as
equivalent ROM contents.



To claim that there is no _legal_ basis for such a restriction is also
incorrect. Nothing but the GPL gives you the right to distribute the
Linux kernel. If the GPL has conditions with which you fail to comply,
then you may not distribute the Linux kernel.


I'm not sure why you'd consider being unable to distribute the Linux
kernel to be a desirable thing, but the point here is that the GPL
explicitly allows aggregation and nothing in copyright law or any court
decisions that I've heard of have excluded bzImage or any other specific
file formats as delivery containers for such aggregation.


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Old 06-09-2008, 04:54 PM
Alexandre Oliva
 
Default Fedora Freedom and linux-libre

On Jun 9, 2008, Alan Cox <alan@redhat.com> wrote:

> On Mon, Jun 09, 2008 at 08:29:28AM +0100, David Woodhouse wrote:
>> I agree with you that that seems to be the only possible interpretation
>> for firmware blobs. And when we take them and include them in the
>> bzImage and distribute that, the only possible interpretation is that
>> they are 'part of a whole which is a work based on the Program'.

> Disagree.

Please elaborate. Do you disagree he agrees with you? :-) Do you see
other interpretations? Do you disagree we take them and include them
in the bzImage and distribute that (or any of these individually)? Do
you disagree it's part of a whole? Do you disagree this whole it is
part of is a work based on the Program?

>> But it's extremely hard to argue that combining non-GPL'd firmware into
>> the kernel image is 'mere aggregation on a volume of a storage or
>> distribution medium'.

> Disagree.

Three bytes: tg3

Same source file, even. Mere aggregation? Where can I get the
separate works, then?

> learn about the actual legal caselaw in the case things like books,

Since you appear to have done your homework, could you please help me
find any case in which a book was published containing an article
whose authors wrote something like 'I will only permit the publication
of this article if all the articles in the book, and the whole of the
book, are under a copyleft license', the book was published with of
non-copyleft material, and the author of the article sued for
copyright infringement?

> and also on the boundaries of contract created by copyright.

?!?!? Copyright does not create contracts. Copyright creates
restrictions that a copyright holder may selectively enforce on third
parties. Licenses relieve third parties from such restrictions.
Contracts often include provisions for licensing, but a mere grant of
permissions is not a contract because there's no reciprocation, no
mutual obligations.

The GPL, for example, is a mere grant of permissions. It does not
require or prohibit anything, it just grants bounded permissions.
Whatever is forbidden even in the presence of the GPL is forbidden
because the law forbids such actions without a license that permits
them, not because the GPL prohibits them.

Example: a law is passed that prohibits people from walking on their
feet. The king grants permission for you to walk on a single foot.
You still can't walk on both feet, but that's not because the grant of
permissions forbids you from walking normally, it's because the law
does. The permission you got just doesn't go as far as granting you
permission to walk that way.

On Jun 9, 2008, Alan Cox <alan@redhat.com> wrote:

> On Mon, Jun 09, 2008 at 08:40:33AM +0100, David Woodhouse wrote:
>> Are you suggesting that the bzImage we ship is not derived from the
>> kernel source? Or that to distribute it, you don't need the permission
>> which is granted by the GPL?

> Nothing of the sort. I'm suggesting conventional interpretations of copyright
> law might apply. The ones the lawyers seem to consider conventional

IIRC it says that modifying, distributing (including publishing) a
work requires permission from the copyright holder, and, in the
absence of such a permission, such acts are forbidden by law. Do you
even have a case here?

--
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Old 06-09-2008, 05:03 PM
Les Mikesell
 
Default Fedora Freedom and linux-libre

Alexandre Oliva wrote:


The tolerance for non-Free Software in Linux's sources (and anywhere
else), be it non-Free firmware blobs, be it drivers developed under
NDA (whose code is obscured and harder or impossible to understand and
adapt to one's needs as a consequence of the NDA), all revolve around
acceptance, endorsement and even promotion of unethical practices that
I don't want to condone or participate in.


Not wanting to participate in distributing code without source is one
thing; calling it unethical is something else and implies that everyone
else is wrong for doing it.



Working towards retaining the ability for people to distribute and use
blobs along with Linux, rather than merely removing the blobs like we
do in Linux-libre, amounts to condoning this practice. It does not
advance our cause. In fact, as others pointed out, such changes make
it easier for unethical vendors to add even more of their blobs to
Linux (or co-maintained packages), which is actually detrimental to
our cause:


And again, vendors who distribute code without source are not
necessarily unethical even if you don't want to participate in helping
the people who would find that code useful or necessary.



Have fun. And please don't bother disputing the values that led to my
conclusion, they're firmly set and the flame war would probably just
annoy everyone who doesn't enjoy this kind of discussion. Now, if you
find any flaws in the reasoning that took me from the premises to the
conclusions, I'd be happy to read about them and discuss them.


Personally I consider competition and equality (i.e. having your choice
of components) to be much more important than source availability for
any component. Thus restrictions on combining and redistributing
components are much more evil, unethical, and detrimental to long term
developments than any current NDA or binary blob could ever be.


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Old 06-09-2008, 05:50 PM
Les Mikesell
 
Default Fedora Freedom and linux-libre

Alexandre Oliva wrote:



learn about the actual legal caselaw in the case things like books,


Since you appear to have done your homework, could you please help me
find any case in which a book was published containing an article
whose authors wrote something like 'I will only permit the publication
of this article if all the articles in the book, and the whole of the
book, are under a copyleft license', the book was published with of
non-copyleft material, and the author of the article sued for
copyright infringement?


Even if such a copyright existed, it would not resemble the GPL which
explicitly permits works with other terms to be aggregated (and probably
would trigger some anti-competitive laws if it tried to restrict that).
You'll note that printed combinations of different works do exist and
the terms under which each is included do not affect the others.



The GPL, for example, is a mere grant of permissions. It does not
require or prohibit anything, it just grants bounded permissions.
Whatever is forbidden even in the presence of the GPL is forbidden
because the law forbids such actions without a license that permits
them, not because the GPL prohibits them.


And thus it has no relationship to other things that might be carried in
the same container, regardless of the form of that container. Firmware
that happens to live in a vmlinuz container for a while is still no more
a part of the kernel than it would be if you had a bag of ROMs that you
had to insert yourself to get the same code loaded in your hardware.
The difference is just the convenience of the update mechanism. Perhaps
someone could write a non-GPL'd alternative loader that would install
the firmware and hardware initializers, then load the kernel just to
prove this point if they wanted to waste time like writing the fgmp
library once did to enable distribution of some less restricted code.



Nothing of the sort. I'm suggesting conventional interpretations of copyright
law might apply. The ones the lawyers seem to consider conventional


IIRC it says that modifying, distributing (including publishing) a
work requires permission from the copyright holder, and, in the
absence of such a permission, such acts are forbidden by law. Do you
even have a case here?


A case of what? Content is content, and firmware is just as much
separate and independent content whether it is installed on the fly or
already in ROM.


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Old 06-09-2008, 05:54 PM
Alexandre Oliva
 
Default Fedora Freedom and linux-libre

On Jun 8, 2008, David Woodhouse <dwmw2@infradead.org> wrote:

> That's nothing special -- it's just the same as we should always be
> vigilant for someone slipping non-GPL'd _code_ into the kernel.
> Should we just give up, just because people slip up occasionally?

Certainly not. But unfortunately it's not just the same.

Slipping non-GPL code into the kernel would be a license violation.
Legal issues tend to carry a lot more weight than "weaker" policy
mandates (*)

But what I'm more concerned about has nothing to do with copyright
infringement. It has to do with respecting the 4 essential freedoms.
Not just firmware. Drivers developed under conditions that deny users
the ability to study the source code, understand it, and adapt it to
their own needs do not respect freedom #1, even if they are perfectly
compliant with the GPL. And I very much doubt think anyone would
succeed in removing from, or preventing the addition of drivers to,
Linux just because documentation is unavailable and the source code is
obscure.

If most head Linux developers go to such great lengths to find and
wield excuses (*) to justify and defend the addition of code that is
so obviously obfuscated and disrespectful of users' 4 essential
freedoms (blobs), why would NDA-obscured drivers get treated any more
seriously?

This is not a case of slipping up. Those are easy to fix, if policies
were taken seriously. This is (tacit or explicit) policy based on
priorities, "corporate culture", and values held within the team that
develops the software.

Same thing here in Fedora. How can the policy to make an exception
and accept some non-Free software "because it's essential to some
users" make sense when other pieces of software that are just are
non-Free and just as allegedly essential are banished on the grounds
of being non-Free? "But it runs on a separate processor" doesn't even
begin to relate with the alleged reasons of their being essential.


(*) I wouldn't qualify the distribution of blobs in the Linux kernel
as a legal risk these days, and my guess is that this is the sort of
opinion that Linus got when he asked his lawyers about it. Consider
this: (i) who could possibly claim infringement, and (ii) what would
the consequences be?

(i) copyright holders of Linux and of the blobs

(ii) automatic termination of the license for everyone who has ever
distributed the infringing version

So, you see, why would a Linux copyright holder push the button if the
mass destruction would take themselves down just like everyone else?
At this point, given the tacit and vocal acceptance of this kind of
code in the kernel, it would even be hard to defend a claim of
secondary liability for induction to infringement by the parties who
contributed the code to Linux, or by the parties who accepted it.

Now, why would any of the copyright holders of the blobs push the
button if the result would be the removal of the code that quite
likely they contributed themselves in order to support the hardware
they sell? That would be little more than FUD and sabotaging.

So, no, I don't see any material legal risks in distributing non-Free
Linux as it stands today, but this doesn't mean it's permitted by the
license or by copyright law. As I stated before, it's a moral,
ethical and social issue, even if it's also a negligible legal issue.

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