firmware and avoiding non-free software [LWN.net]

firmware and avoiding non-free software

Posted Oct 2, 2008 10:34 UTC (Thu) by pjm (guest, #2080)
Parent article: openSUSE and the distribution of proprietary software

The "tearing firmware out of the kernel [Linux]" is a bad example of evidence of a desire to "avoid anything non-free": removing non-free firmware is typically motivated by a desire to avoid lawsuits more than a desire to avoid non-free software. We don't yet have good knowledge at all about the line between "derivative work" and "mere aggregation"; if the proprietary firmware blobs form part of Linux, i.e. if they form part of a "work ... that in whole or in part contains or is derived from the Program or any part thereof", then presumably one doesn't have permission to distribute it (given that Linux is distributed under GPLv2 and one can't "cause [that work] to be licensed as a whole at no charge to all third parties under the terms of [version 2 of the GNU GPL]"). Distributors could try to argue an implied license or hope that none of the many many Linux copyright holders will try to sue, but one can certainly understand a distributor wanting to avoid the risk.

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firmware and avoiding non-free software

Posted Oct 5, 2008 16:20 UTC (Sun) by vonbrand (guest, #4458) [Link] (1 responses)

Who would sue whom about firmware inside the kernel? Would the kernel hackers sue themselves? Or perhaps the people who provided said firmware for use with their hardware sue Red Hat for distributing it with Linux? I can't imagine the firmware got included in the kernel without the owner's knowledge and consent...

firmware and avoiding non-free software

Posted Oct 6, 2008 2:33 UTC (Mon) by pjm (guest, #2080) [Link]

Copyright law provides that copyright owners may sue a person who performs some action reserved for the copyright owner, without license from the copyright owner.

When talking about distributors choosing not to distribute proprietary firmware blobs as part of the Linux binary image, the suing that they want to avoid is where they the distributors (and their mirror providers) are sued by one of the copyright holders of some GPLv2-licensed piece of code in Linux.

As for why a Linux copyright owner would sue a distributor, maybe some separate disagreement arises and the copyright owner uses the threat of suing as a bargaining chip, or maybe the copyright owner is a company (see SCO).

As for the copyright owners of the firmware itself, they have grounds to sue if the firmware blob weren't licensed for distribution at all, or if the Linux binary image that contains that firmware blob is considered a derivative work of the firmware blob (which seems less likely than the above case), and if the firmware's license hasn't granted permission to distribute derivative works of the firmware. I haven't heard of distributors being concerned about this case.

Going back to the question of to what extent tearing firmware out of the kernel [Linux] is evidence of a desire to avoid anything non-free, I believe that in some cases the distributor still distributes the firmware blob, but as a separate file loaded into the device from userspace. (Moving the firmware blob out of the Linux binary image in this way makes it clearer that this is an instance of mere aggregation of another work [viz. the firmware] not based on [Linux] with [Linux] ... on a volume of a storage or distribution medium, and much harder for the would-be plaintiff to argue that these separate files form a single work that is a derivative work of content of either file.) If a distributor is still distributing the firmware, then clearly they are not trying to avoid anything non-free, but are merely trying to avoid copyright lawsuits.