Re: Dual-Licensing Linux Kernel with GPL V2 and GPL V3

[Michael Poole]

David Schwartz writes:

>> David Schwartz writes:
>
>> >> First, end users buy and use the hardware in question.  It does not
>> >> belong to Tivo, so the analogy to his laptop fails there.
>
>> > No, this is incorrect. They buy *some* of the rights to the
>> > hardware but not
>> > all of them. Specifically, they do not buy the right to choose
>> > what software
>> > runs on that hardware. That right is still owned by TiVo.
>
>> Do you have a reference to the contract establishing that cession of
>> rights from the buyer to Tivo?
>
> No, and I submit that this is at least arguably something wrong that TiVo is
> doing. Note that Microsoft does this too when you buy an Xbox. It has
> nothing to do with the GPL.

There is a significant difference between what is a legally recognized
right and what no one has litigated over.  I tend to not recognize the
latter as the former until I see specific backing for the idea that
the purported right has been recognized by law, a court, or all
involved parties.

>> To the extent that some contract
>> purports to restrict the user in ways contrary to the GPL, I suspect
>> Tivo might have a hard time defending it in court.
>
> I agree, however, this doesn't restrict the user in ways contrary to the
> GPL. The GPL does not say that you have to be allowed to modify the Linux
> running on some particular piece of hardware because that is a legitimate
> authorization decision. TiVo not letting you change the software is the same
> as me not letting you change the software on my laptop.

I disagree that the two are the same -- for the fundamental reason
that you have not distributed the software on your laptop to me.  Tivo
has distributed the software on Tivo DVRs to their customers.  The act
of distribution is governed by (in the case of Linux) copyright law
and the GPL.

>> > You can argue that TiVo is being dishonest, breaking the law,
>> > being immoral,
>> > or whatever in retaining this right or in failing to disclose that they
>> > retain it. But you cannot coherently deny that TiVo retains
>> > this right when
>> > they sell certain other rights to the hardware.
>
>> By the first sale doctrine, someone who buys an item has practically
>> unlimited rights to deal with it or dispose of it as the buyer wishes.
>
> This is solely a right against copyright claims. You would be correct if
> TiVo were going to sue you for violating some copyright they hold in the
> hardware or software if you modified the software.

Do you propose that Tivo would (or could) sue a customer for some
non-copyright tort if the customer were to run a Linux kernel that has
not been authorized by Tivo on a Tivo-manufactured DVR?  As far as I
can tell, the legal concerns in question are all copyright issues.

>> The only things that would restrict that are statute or a contract
>> entered as part of the sale -- most likely a EULA or other shrink-wrap
>> agreement.  Given that most such recognized agreements deal with
>> software or services rather than hardware, I am not sure a court would
>> recognize a hardware EULA as being binding.  (I suspect this is the
>> direction you were heading with the paragraph below.)
>
> Yep, but that has nothing whatsoever to do with the GPL. The exact same
> argument applies with the Xbox. It's about whether authorization to modify a
> device should or must come with buying that device.
>
> The GPL was never about allowing you to load modified software onto hardware
> where the legitimate creators/owners of that hardware say, "no, you may not
> modify the software running on this hardware".

True.  The GPL always about allowing someone to modify software that
they received from someone else.  Tivo's Linux kernel images qualify
both as softare that they distribute to others and software that is
loaded onto hardware that they created.  The concern at hand is not
about hardware that Tivo owns or software that Tivo never distributes
-- except where it is also source code for software that they *do*
distribute.

Michael Poole
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