Re: Fwd: Copyright infringement in linux/drivers/usb/serial/keyspan*fw.h

["Adam J. Richter" <adam@yggdrasil.com>]

Larry McVoy wrote:
>On Fri, May 25, 2001 at 07:34:57PM -0700, Adam J. Richter wrote:
>> 	Contracts for slavery are specifically not enforceable due to
>> the 13th Amendment, and there is also a stronger question of formation

>Completely misses the point.  THe point isn't about slavery, come on, Adam,
>it's about putting unenforceable things into contracts.

	The point is you have to agree to the contract that is the
GPL to get the right to make a copy of a GPL'ed work.  You raised
the ridiculous example of slavery apparently as an analogy to the
requirements of permissions on copying conditions that go beyond
restrictions one is subject to anyway by copyright.  The point
is that you can make require someone to agree to conditions that
go beyond the restrictions already imposed by copyright in exchange
for permission to, for example, make a copy, so your argument about
the boundaries of copyright is inapplicable.  The GPL is enforceable.

>It's also about the concept of boundaries - if you think that that 
>concept is not a legal one then why aren't all programs which are run
>on top of a GPLed kernel then GPLed?

	Apparently Linus felt that that was a sufficiently
plausible gray area that he addressed it explicitly in
/usr/src/linux/COPYING:

|   NOTE! This copyright does *not* cover user programs that use kernel
| services by normal system calls - this is merely considered normal use
| of the kernel, and does *not* fall under the heading of "derived work".
| Also note that the GPL below is copyrighted by the Free Software
| Foundation, but the instance of code that it refers to (the Linux
| kernel) is copyrighted by me and others who actually wrote it.


	I believe you could enforce copying conditions on a kernel
where, in order to have the right to make a copy of the kernel, you
agree only to run certain types of programs.  I believe Windows CE
has historically been "licensed" this way.

	I did not say that you cannot define boundaries and I also
think you can even make inferences that a judge is likely to agree
with.  What I am saying is that in order to have the right to make
a copy of the of the GPL'ed code in the keyspan_usa drivers, you
must agree to everything the GPL requires, and those requirements
do not have to be limited to the boundaries of the author's existing
copyright.  The GPL is a contract.  If you don't agree to it, don't
do anything with GPL'ed material that the copyright monopoly restricts.

	I am not a lawyer, so please do not rely on this as legal advice.


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