Date:	Mon, 18 Dec 2006 17:29:34 -0800
From:	"David Schwartz" <davids@...master.com>
To:	<sepreece@...il.com>
Cc:	"Linux-Kernel@...r. Kernel. Org" <linux-kernel@...r.kernel.org>
Subject: RE: GPL only modules


> > It's also not clear that an aggregate work is in fact
> > a single work for any legal purpose other than the aggregator's claim to
> > copyright.

> Not sure what you're trying to say there - what are we talking about
> here other than the copyright?

We are talking about two different possible copyright claims. One is the
person who aggregates the works who may try to claim a "compilation
copyright" in the aggregate. The other is the authors of the original works
who may try to claim that the aggregate is a derivative work.

> First sale has nothing to do with this. First sale applies to the
> redistribution or resale of copies you have purchased, not with the
> right to make additional copies.

First sale is exactly what this is about. Nobody needs to make "additional
copies" of the Linux kernel because I can download a thousand of them from a
computer operated by the guy in the office down the hall from me.


> > ... For copyright law purposes, it is not a work because no creative
> > input was needed to produce it beyond what was used to create
> > the works from
> > which it was formed.

> Selection and organization are potentially creative. The Act
> distinguishes between derivative works, compilations, and collective
> works. A derivative work is a work "based on" the original work; a
> compilation is a work formed by "collecting and assembling"
> preexisting works "in such a way that the resulting work as a whole
> constitutes an original work of authorship. A "collective work" is any
> work formed by assembling independent works into a whole. All
> compilations are collective works, but not all collective works are
> compilations. Derivative works have nothing to do with aggregation.

Good, so we agree that aggregate is not a derivative work. That means it
doesn't have to be GPL'd even if some of its component works are GPL'd.

> > I recently bought two DVDs as a present for a friend of mine. I
> > put the two
> > DVDs in one box and shipped them to him. Just because the two
> > DVDs are in
> > one box does not make them a derivative work for copyright
> > purposes because
> > no creative input went in to them. I can even staple the two
> > DVDs together
> > if I want. I also don't need any special permission to ship the
> > two of them
> > together to my friend, first sale covers that. The right to ship each
> > individual work is all that's needed to ship the aggregate.

> First sale is separate from Copyright. You have the right to ship
> them, but not to make copies of them. You can't for instance, ship
> your friend a single DVD that combines the contents of the two you
> bought. That's not unlike the distinction GPLv3 makes between
> "propagating" and "conveying".

I don't see why you can't distribute a single DVD that combines the contents
of the two you bought, so long as you destroy the originals. There is no
issue about the number of copies with the GPL because you can download any
number of copies of a GPL'd work from someone else who provides you with
source.

> > Now, if I wanted to write my own story with elements from the content of
> > both DVDs, that would be a derivative work because the
> > combination itself is
> > done in a creative way.

> If it just rearranged the pieces, it would not be a derivative work,
> it would be a compilation. If you transformed the pieces, it might be
> a derivative work (depending on the nature of the transformation).

I think it depends upon how small the pieces are. If you rearranged them
creatively, and the result was in effect a single work, I think it would be
a derivative work.

> > No automated, mechanical process can create a derivative work
> > of software.
> > (With a few exceptions not relevant here.)

> The truth of that statement depends on exactly what you mean by "an
> automated, mechanical process". There are mechanical processs that
> would simply produce the original work itself, not a derivative (e.g.,
> changing the type from Courier to Times). There are other mechanical
> proceses that would produce a collective work (e.g., inserting after
> each line of the program a statement indicating whether or not it was
> valid C). There are other mechanical processes that would create a
> derivative work (e.g., a paraphrasing tool). It depends on the nature
> of the mechanical process; that is, the decision, by you, to apply a
> particular mechanical process is itself creative. But, perhaps that's
> what you meant by your "few exceptions".

I mean that you can't link together a bunch of works that would otherwise be
independent and get a derivative work as a result. Linking combines
mechanistically, not creatively, so it aggregates.

DS


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