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

[Alan Cox]

> > A Tivo box is a collection of literary works protected by copyright, 
> > designs protected by design patents and copyright, names and logos 
> > protected by trademarks, functionalities protected by patents and many 
> > more things. These are the things that restrict what I may do with it 
> > and how I may treat it. The collection of bits of metal and sand 
> > aren't really of relevance in terms of licencing.
> 
> If you are into technicalities then you fail to achieve that "rigorous 
> base" by a wide margin. The Tivo box is not "a collection of literary 
> works", it is a piece of matter, that also happens to contain fixated 

The physical matter is irrelevant. I am perfectly entitled to own, shape
and fiddle with sand and bits of metal. If I wish to remove the software
from the tivo, melt it down and cast the result into the shape of an
obscene gesture and wear it at the tivo shareholder meeting so be it. At
that point it would be my work made from melting the tivo that was the
protected work - same matter.

> copies of literary (and other) works. The Tivo box is just one copy of 
> those works - it is not "a collection of literary works". (Only if there 
> was just a single Tivo box on the planet then could that box itself be 
> meaningfully called a collection of works - a single and unique "master 
> copy" of a work can be called the work itself.)

Each copy is an instance of the work. My copy does not change its status,
nor its legal situation if someone rounds up every other tivo and melts
them down. I guess if you want to be pedantic the Tivo contains "an
instance of the work"

> the work is not the copy! The work is a more 'abstract' entity. The word 
> "copyright" comes straight from that: the right to create specific 
> copies of the work. And that's another reason why it's nonsensical to 
> suggest that somehow the GPLv2 gives us the right to influence the 
> hardware environment that the copy of the kernel got fixated into. We 

We have every legal right to do so. I am perfectly permitted to try
to grant you the right to reproduce my work only if you pay me $25 and the
reproductions are provided in a silver box with flashy blue lights. I am
perfectly permitted as author of a work to tell you "no". You as box
maker are perfectly at liberty to tell me where to go stick my offer and
just not use my work.

I can influence your hardware all I like. What I cannot do is influence
you in any way if you decide not to take any action involving my
copyright. Nor can I through copyright require certain kinds of condition
(eg control other works on the same media) as that requires contract law
and a proper contract, nor certain things that are deemed to be unlawful
by the state (The GPL gives me the right to modify the code to break into
the DoD, steal all their secrets and mail them to the Iraqi government,
the law of the USA not unsuprisingly takes that right away).

> More down the technicalities road: the Tivo box also contains many items 
> that are not copies of works protected by copyright: common types of 
> screws that are not original forms of expression that are creative 
> enough enough to gain copyright protection. Or numbers painted on 
> various places. Or computer-originated random output. Copies of works 
> that have entered the public domain and thus are not under the scope of 
> copyright protection.

And this matters because ?

> Neither is the Tivo box "collection of functionalities protected by 
> patents", if then it is an embodiment of a method and apparatus, which 
> invention is under patent protection (there are other types of patents 
> as well), or which invention might not be under patent protection but 
> have a patent application pending. (which might or might not issue at 
> the end of the patent application process.)

Ok I guess thats a question of level of abstraction, like being "an
instance"

> > "The source code for a work means the preferred form of the work for
> > making modifications to it"
> 
> i think it is clear what is intended with this section: that for example 

The Lawyers don't. As experts in their field I generally trust their view
on this. Also remember that lawyers assess legality not morality so there
are other questions to ask than "will I get sued".

> But to read this to require a toaster that a piece of free software came 
> installed on to be modifiable by the licensee who choses to excercise 
> his rights under the GPL, in the same way as the original developer was 
> able to modify that toaster is ... quite creative too i think, and leads 
> to many absurd results.

Agreed. But GPLv2 has many absurdities such as the way it handles
copyight notices. It wasn't designed when GUI apps were the norm, it
predates web hosted services and the GPL mobile phone was, I suspect, not
on the drafters radar let alone in their pocket.

If my toaster is ROM based then it is difficult to argue that the
preferred form for modification is anything but the code and usual build
files. If the system is writable then it is possible if not reasonable to
argue that the preferred form includes the information needed to load
that modified image, or should do so.

What this means for the FSF goals if Tivo get up one morning and switch
their system firmware to ROM however is interesting 8)

Alan
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