linux-kernel - Re: [PATCH] USB: mark USB drivers as being GPL only

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Date:	Sun, 10 Feb 2008 11:20:45 +0000
From:	Alan Cox <alan@...rguk.ukuu.org.uk>
To:	Daniel Hazelton <dhazelton@...er.net>
Cc:	Marcel Holtmann <marcel@...tmann.org>, davids@...master.com,
	David Newall <davidn@...idnewall.com>,
	Greg KH <greg@...ah.com>,
	Christer Weinigel <christer@...nigel.se>,
	linux-usb@...r.kernel.org, linux-kernel@...r.kernel.org
Subject: Re: [PATCH] USB: mark USB drivers as being GPL only

> Why? Because the pre-processor is what is including any GPL'd code in my 
> application and expanding any macros. That is a purely mechanical process and 

And its not pirating Windows because Norton Ghost put Microsoft copyright
material in your hard disk either - thats a mechanical process too. Right
- no. Nor can the gcc compiler hold the copyright as you suggest as it is
not a legal person. 

The compiler might perform a process which combines your creative work
with another and thus creates a derivative work. It might do that with
libgcc. In many cases the FSF is being careful when it makes sure
specific things don't happen just as Linus did with the kernel. Sometimes
it is best to make sure no judge got a bit carried away and instead to
create certainty in advance.

If you really think what you claim then I'll #include your entire work,
flog it binary only and assure you it can't be derivative as you said so.
That's entirely mechanical - in fact I can clain a defence of 'estoppel'
given your previous statement, so you probably wouldn't be able to sue me
for it even if it was otherwise a violation.

There is btw lots of possibly useful caselaw in the area of books. People
have spent time litigating and thus established some clearer answers to
questions like whether you need copyright owners permission for

- Two books in the same box
- Two books in the same cover
- A book that quotes another
- A book that uses the characters of another
- A book which is a sequel/prequel to another
- One book inserted sectionally into another

Similarly in music questions about

- Compilations
- Remixes
- Sampling
- Setting to film
- Covers

have all been somewhat heavily litigated as you might expect from that
industry.

It would not be reasonable to expect caselaw in these areas to drive
caselaw in software. 

Alan
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