linux-kernel - RE: GPL vs non-GPL device drivers

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Date:	Mon, 19 Feb 2007 14:47:00 -0800
From:	"David Schwartz" <davids@...master.com>
To:	<trent.waddington@...il.com>
Cc:	"Linux-Kernel@...r. Kernel. Org" <linux-kernel@...r.kernel.org>,
	"Neil Brown" <neilb@...e.de>
Subject: RE: GPL vs non-GPL device drivers

> On 2/20/07, David Schwartz <davids@...master.com> wrote:
> > There is no such thing as the "combined work". If I put a DVD
> > of The Phantom
> > Menace in the same box as a DVD of The Big Lebowski, the box is not a
> > "combined work".

> If you can't even agree on that the legal concept of a combined work
> exists then you're obviously too far from reality for anyone to reason
> with.

The term "combined work" is sometimes used to mean a combination of two or
more works whether or not the result is a work. It is also sometimes used to
refer to a work that contains literal elements from one or more other works.
There is a very important distinction between these two uses. (And it's
sometimes used to mean something that contains literal elements from one or
more works, whether or not that thing is a work and whether or not the
elements taken are protectable.)

In your example, there is no "the combined work" because the combination
does not produce a work. Look at my example, if you put a DVD of The Phantom
Menace in the same box as a DVD of The Big Lebowski, is the box a "combined
work"? Obviously not, it simply contains two works.

In any event, I've been unable to find anything remotely resembling a clear
definition of "combined work". It's not clear whether a "combined work" is
supposed to be a type of work or can be a combination of works that is not
itself a work.

I have seen many people say that something is "legally considered a combined
work", but as far as I can tell, there is no such legal term. If you have a
citation to the contrary, I'd very much like to see it.

> It's a given.. are you seriously contending that if you combine two
> copyright works you are not obliged to conform with the conditions of
> the license on one of them when making a copy of the combined work?

The problem with statements like the above is that it's imposisble to tell
what you're talking about. You use terms like "combined work", which as far
as I can tell, could mean almost anything. You talk about when you "combine
two works", but there are many different types of combination that have very
many different meanings. (For example, mere aggregation versus creative
selective combination.)

The short answer to your question is yes. Owners of intellectual property
have some rights but not all rights, and in many cases, the right you are
talking about is not one of the rights they have. This is not arbitrary or
some kind of loophole, this is for very fundamental and important reasons.

Copyright is not supposed to make any ideas any more difficult to express.
You are only supposed to be able to protect the one way you chose to express
an idea. It is a serious abuse of copyright to claim that your copyright
protects certain functional ideas such that all those who try to express
them must follow your rules.

DS

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