Re: module license taints kernel.

On Nov 18, 2:52 am, Rainer Weikusat <rweiku...@xxxxxxxxxxx> wrote:

That's why I wrote that the 'creative' part would be the one which
enables two different files to be mechanically combinated in a way
that they function as a whole. So, what really "doesn't matter" is
your discussion of something different.

So you rescind your claim that linkers create derivative works? You
have a new claim -- that a work fed into a linker might be a
derivative work of some other work. Well, duh, of course it might.

Suppose you write a C program and I write a drop-in malloc
replacement. It's true that in order for your library to be able to
link to my drop-in malloc replacement, creative effort is required on
the part of both of us. But that doesn't make either your C program
nor my drop-in malloc replacement dependent on the other. In fact, you
could develop your program and me my library with no communication or
knowledge of each other whatsoever.

This is a different case, because both components effectively interact
according to an interface defined independently of both of them. And
it is a different case which is not relevant for Linux kernel-modules,
because this property does not exist there.

That's not why it's different. The reason it's different is because it
is clear that neither work is a derivative of the other before they
are linked.

If they weren't before they were linked, they aren't after. It's that
simple.

Suppose I write a text and you remove its context to be able to create
an easy contradiction, utilizing the changed meaning created by
you. Did you now argue against an opinion which I held or did you just
use some parts of the 'raw material' which was accidentally necessary
to communicate said opinion to construct a better strawman?

I don't understand how this could possibly be relevant. What human
beings do is nothing remotely like what linkers do. Of course when a
human being combines two works, they might create a new work in the
process, that's because human beings are creative. Linkers are not,
so there is no question that they did not create a new work. If they
could, they would be entitled to copyright on the work.

If I combined your indepedent malloc implementation with some GPL'ed
code to create something which has a function of its own, utilizing
both pieces of code as parts of them, I would have created a
derivative work and would not be allowed to distribute it except if I
was allowed to distribute this malloc replacement according to the
terms of the GPL.

Yes, if you did so by a creative process. No, if you did so by an
automated, non-creative process.

And when some third-party links them together, no new work is created.
This must be so because no creative effort is needed to link them
together.

A really bad (IMO) German rap band called 'The Fanastic Four' was IIRC
sucessfully sued by J.J. Cale because they incorporated a part of one
of his songs into one of them some time in the first half of the
1990s. But the act of 'aggregating' two indepedent sounds onto some
medium using a suitable recording device is certainly mechanical and
the recording device cannot create anything on its own. If you were
right, you would have proven that this didn't happen and, by
extension, that HipHop is inherently uncreative in nature.

Right, because they did so creatively. They are human beings, they are
not automated linkers. The question is whether linking can create a
derivative work where one did not exist before.

In any event, your example fails for another reason. Suppose I take
Sting CDs and add some extra drum hits to them. Of course I can't copy
them and sell them. This is true whether or not my CD contains
sufficient new creative effort to be a new work. So this sheds no
light whatsoever on the nature of the resultant work, which is what
we're talking about.

While I would agree with that, some people might feel inclined to call
this a prejudices of mine :->.

There is another legal question about how much creative effort is
required before a new work results that entitles the person who
applies that creative effort to copyright rights on the resultant
work. It is definitely more than typing 'ld'.

DS
.