Subject: Re: Restriction on distribution by Novell?
From: Chuck Swiger <chuck@codefab.com>
Date: Wed, 27 Sep 2006 12:36:13 -0400

John Cowan wrote:
> Russ Nelson scripsit:
>> 2) These are patches.  They are not necessarily supplied to you under
>> the GPL.
> 
> If they are diffs, yes.  If they are replacement binaries, they must
> be under the GPL.

Agreed.  If a patch contains GPL'ed binaries, by the act of distributing the 
patch Novell is granting each person who receives those binaries the license 
to "copy, distribute or modify" them per GPL #6, Novell is under the 
obligation to provide the original sources per GPL #3, and so forth.

>> 1) Novell could be claiming a compilation copyright on the particular
>> set of patches they supply to you, in which case you might be able to
>> redistribute the patches separately, but not that exact set of
>> patches.  Since the GPL doesn't apply to the entire set, there is no
>> infringement here.

While Novell could undoubtedly form a compilation which includes GPLed 
software and software which is under terms which are not GPL-miscible, and 
could even assert a "compilation copyright" on it to restrict redistribution, 
Novell would not have the right to redistribute the GPL'ed parts itself 
without Novell complying with the GPL.

In other words, if the language pertaining to the patch(set) said, the 
following components are under the GPL and the end-user is granted a license 
to freely redistribute them, obtain sources, and so forth as you wish, that 
would be in compliance.  Novell could also state that some other components of 
the patch(set) are under more restrictive terms, assuming the parties agreed 
to them, and that would be fine.

However, if it's not possible for the end-user to separate out the components 
of the patch(set), then that sounds more like a derivative work than a 
compilation.  In that case, if any of the components of the patch are from 
GPL'ed software, the entire thing must be under GPL-miscible terms, or else 
nobody will be able to redistribute it without obtaining a different license 
from the original authors (or rightsholders).

-- 
-Chuck