I am not a lawyer, so don't use this as your legal advice. This
is just laymen's interpretation of the situation.
There are two separate legal restrictions discussed in
linux-2.4.3/drivers/usb/serial/keyspan_usa18x_fw.h: trade secret
and copyright.
The trade secret statements are either irrelevant or false.
"This notice does not imply unrestricted or public access to this
firmware" may be technical true technically true because it is not
"this notice" which what created unrestricted or public access, but
the unrestricted public access to the linux kernel releases which
contained that code do create such access.
The copyright notice, however, probably is true, and if so
it is almost certainly illegal to distribute any Linux kernel that
statically includes, illegal to distribute any binary module that
contains even one byte of a GPL'ed source or include file (amount
copied is not enough to establish fair use).
I believe the source from of copyright liability would not
be from keyspan, but from the owner of any GPL copyright of the code
included in the same object (the kernel or the module) or possibly
anywhere in the kernel. If the copyright in question has not been
registered, then I believe the only liability for distibution in the
US would be actual damages, which Keyspan would have to sue for. If
the copyright has been registered and it can be established that the
infringement was willful (I think this means continuing to do so after
being notified), I believe the damages available are 3X actual or
statutory damages of something like US$50k per act of infringement, and,
if ten or more copies were sold for profit, then, if I recall correctly,
about ten years ago it became a felony punishible by up to five years
in prison, although I've never heard of a criminal conviction for it.
I think drivers/usb/serial/keyspan{18x,19,19w,28,28x,49w}_fw.h
should immediately be removed from the stock Linux distribution. Then,
somebody can get around to writing an ioctl and a user level program
for uploading firmware, which could be distributed separately under
any old copyright (although I believe keyspan has permanently lost any
trade secret restrictions on the code which was published in the
intervining kernel releases).
Adam J. Richter __ ______________ 4880 Stevens Creek Blvd, Suite 104
[EMAIL PROTECTED] \ / San Jose, California 95129-1034
+1 408 261-6630 | g g d r a s i l United States of America
fax +1 408 261-6631 "Free Software For The Rest Of Us."
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