[olug] OT: more Hans goodness

[Bill Brush]

On Wed, Jul 9, 2008 at 8:50 PM, Luke -Jr <luke at dashjr.org> wrote:
> On Wednesday 09 July 2008, Bill Brush wrote:
>> I think you're on shaky legal ground equating "derivative" and
>> "written to work with."
>>
>> You'd have to have access to the source code of the driver to show
>> that it's "derivative" of any OSS and the bar for declaring that
>> something is derived from something else is fairly high.
>
> Since it is impossible to make a non-deriving Linux kernel module, access to
> source is not needed. Besides which, part of the source code *is* publicly
> available, or else the module wouldn't work as well as it does since the ABIs
> change frequently.
>

Your definition of  "derivative" does not match the legal definition.

http://www.lectlaw.com/def/d042.htm

"DERIVATIVE WORK - A work based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which a
work may be recast, transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations, or other modifications
which, as a whole, represent an original work of authorship, is a
'derivative work'. 17 U.S.C."

A driver is clearly not a translation, arrangement, dramatization,
fictionalization, motion picture, sound recording, or art
reproduction.  I doubt the case could be made for it to be an
abridgment, nor a condensation.  It might consist of some editorial
revisions, but it's unlikely since there is no need to revise the
actual souce code, merely to make something new work with it, in fact
I believe that would be an entirely new kernel, not a module.  A
driver module doesn't annotate the source code since it's a separate
work.  A case might be made that it is an elaboration, but I think
that would be pushing it, as once again, the driver is a separate
piece of code that the kernel does not require to function.  A driver
might be a modification of the kernel source, but my understanding is
that typical these binary drivers do not modify the existing source
code of the kernel itself, they merely extend the capabilities of the
kernel by adding a loadable module to it.

Based on my reading, I don't think that a module legally meets the
definition of a derivative work.  You, may of course, disagree with my
reading.  I think the fact that no one with standing to contest these
drivers has done so is a convincing circumstantial corroboration of my
point however.

Bill