RE: GPL vs non-GPL device drivers

["David Schwartz" <davids@webmaster.com>]

> On 2/17/07, Alexandre Oliva <aoliva@redhat.com> wrote:

> > Per this principle, it would seem that only source code and
> > hand-crafted object code would be governed by copyright, since
> > compilation is also an automated process.

> Well, compilation is probably equivalent to "translation", which is
> specifically included in the Act as forming a derivative work.

I would hope that courts will hold that "translation" still means what it
originally meant -- the creative process of converting a work from one
language to another where one has to choose how to map the concepts behind a
work to the most appropriate concept in a different language. Clearly
translating Jabberwocky into German is creative in a way that compiling the
Linux kernel from C to x86 binary is not.

Interestingly, if you are right, then what online translation services like
babelfish (that allow you to see a web site in another language) do is
probably illegal as they create derivative works without permission of the
copyright holder. It's easy to argue that putting up a web site grants
people implicit permission to copy and render it so that they can see it,
but much harder to argue that it gives them the right to create a derivative
work. (Of course, you could argue fair use.)

As far as I know, no court has addressed this issue. But I think the
sensible thing is to hold that "translation", in copyright law, is meant as
an example of one type of creative process that could create a derivative
work, not that any process that can be argued to be translation (whether
creative or not) automatically makes the result a work for copyright
purposes.

But you never know.

DS


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