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    SubjectRE: non-free firmware in kernel modules, aggregation and unclear copyright notice.

    > > No-one is saying that the linker "merely aggregates" object
    > > code for the driver; what *is* being said is: in the case of
    > > firmware, especially if the firmware is neither a derivative
    > > work on the kernel (see above) nor the firmware includes part
    > > of the kernel (duh), it is *fairly* *safe* to consider the
    > > intermixing of firmware bytes with kernel binary image bytes
    > > in an ELF object file as mere aggregation.

    > No, it is completely wrong to say that the object file is merely an
    > aggregation. The two components are being coupled much more tightly
    > than in the situation that the GPL discribes as "mere aggregation".

    Would you maintain this position even if the firmware is identical
    across operating systems and the Linux driver is identical across different
    firmware builds for different hardware implementations?

    Say, for example, Intel comes out with a new super-smart and
    sophisticated network card. They also offer firmware that makes it look just
    like an NE2000. They don't create this firmware for Linux, they create it
    for any set of operating systems that don't have specific drivers for this

    Similarly, the NE2000 driver wasn't specifically designed to use
    this firmware. Both the firmware and the driver were independently developed
    to implement the same de facto standard.

    Now, someone combines the firmware and the driver into a package
    that checks what card you are using, and if it has the appropriate firmware
    to make the card work with the driver, uploads it.

    Note that the issue is not whether the GPL describes this as "mere
    aggregation" because the GPL doesn't get to set its own scope. The issue is
    whether the resulting binary is a single work (that is derivative of the
    GPL'd driver) or whether it's two works with a license boundary between

    It would not be obviously unreasonable to argue that the NE2000 API
    constitutes a license boundary between the two works, each of which stays on
    its own side of that API.

    Lacking clear court guidance, I see it as a threshold issue. One
    primary issue (I think) is to what extent that firmware and the driver have
    been customized for each other. A work that is carefully designed to mesh
    tightly with another work is analogous to a sequel, which is a derivative

    I think we have a real problem, however, in cases where the source
    file that holds only the firmware data contains a GPL notice.


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