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Re: Heart of the debate

Excuse the previous message, I hit ^C ^C in emacs where I meant ^X ^X !

I'm ging to try to keep this short and then shut up definitely. I just aint
got the time to go on like this.

On Tue, 15 Feb 2000 12:02:31 -0500 Andreas Pour <pour@mieterra.com> wrote:

> When I read "under the terms of Sections 1 and 2", I interpret that as "in
> compliance with".  "Under the terms of" is often used in legal documents to mean
> "in compliance with" (e.g., if a bank says you have to make "interest payments
> under the terms of this Loan Agreement", it is obvious that what is meant is "in
> compliance with the Loan Agreement", rather than meaning "a whole separate Loan
> Agreement applies to the interest payment" or that somehow the "entire" Loan
> Agreement applies to the interest payment).  So you have to distribute the
> complete source code in compliance with Sections 1 and 2.  Those sections place
> some additional requirements on the "Program" and on any "work based on the
> Program", but not on other works which are not based on the Program.

Thanks for the explanation, I think I now begin to understand how you're
trying to make sense of the GPL. Just keep in mind that if you find you're not
too successful at it (as I gather from what you said later), it might just be
because you chose this interpretation. Clearly your reading of "interest
payments under the terms of this Loan Agreement" will make sense, because
without any doubt the Loan Agreement will elsewhere stipulate explicitly that
and how (much) interest payments are to be made.

The problem with reading the GPL this way is that it systematically uses this
phrase when the rest of the GPL (or the designated part) does NOT explicitly
treat the subject of "under the terms" (in some cases: explicitly not). This
is most clear in its first real use: "2. You may... copy and distribute such
modifications or work under the terms of Section 1 above". But Section 1 talks
about "verbatim copies of the Program's source code as you receive it" which
is explicitly distinct from any modification. Same problem with the first
paragraph of 3, as you noted. This confused me too, until I made a fresh start
reading the GPL, and it became clear to me that this is just an abbreviative
mechanism. Rather than in the first paragraph of 2 add "provided that you
conspicuously... exchange for a fee", which is literally the same as in 1,
there is just a reference. Note that if you do expand out that text, it makes
perfect sense. This is different from either of our viewpoints so far: one is
not trying (as you would) to read what Section 1 stipulates about
modifications, nor is one making (as I would) Program refer to "work based on
the Program"; rather one is replacing the entire subject of section 1
(verbatim copies of the Program) by that of section 2 (works based on the
Program). And of course there are additional conditions in 2.

While this makes clear what is meant by the "terms of section 1" (roughly: you
must place/keep intact notices), it becomes a bit more difficult for the
"terms of section 2"; that would be something like "you must indicate changes,
ensure that third parties have permission to modify/redistribute, and ensure
that notices will be displayed on execution". The difficulty stems from the
fact that clauses 2a, 2b, 2c do not share the subject of the initial paragraph
of 2: 2a introduces "the modified files" and 2b "any work that you distribute
or publish". So textual expansion into the first paragraph of 3 has its
problems (I don't think binaries themselves need to carry notices of any
changes to the Program). Still I think it is not too forced to read something
like: "You may copy and distribute...in object code or executable form
provided that you conspicuously...(see section 1)... for a fee, that you cause
the object code to be licensed as a whole... (2b)... License, that if the
program normally reads... (2c), and provided that you also do one of the
following: (back to 3a).

I think the heading of the GPL proper, "Terms and conditions for copying,
distribution and modification", also supports (or at least is compatible with)
interpreting the "terms" as those parts of the sections that qualify the
permissions being granted, and which therefore do not encompass the particular
object of the permission in each section.

The other two important occurrencs of "under the terms" (in 2b and 3a) are a
bit different, if only because they say that one "must... under the terms"
rather than that one "may... under the terms". They are very particular for
GPL (or copyleft in general) in that they are requiring another distribution
as a condition to permitting a particular one. Here the analogy with other
legal documents such as a Loan Agreement is likely to be less clear. Since the
distribution required is distinct from the distribution being permitted, the
reference is neither "see section such and such for details concerning this
part of the agreement" (as is would be for interest payments), nor a simple
"copy the text from section such and such into place here". Therefore, I can
only see this as a recursive invocation of the GPL: "the same permissions
granted in the GPL with respect to this Program should also be granted to all
third parties (and at no cost) with respect to any work derived from this
Program that are published" (2b), and "the same permissions granted in the GPL
with respect to this Program should also be granted to recipients with respect
to the complete sources accompanying distributed binaries" (3a). I admit that
I am now using "terms" to designate the permissions themselves, rather than
just their qualification, as I did above.

Now some final quick reactions.

> The "complete sources" is broader than a "work based on the Program".  In the
> case of a GPL binary with a non-GPL library, at least when distributed statically
> linked, the complete source code includes the library source code, whereas in
> that case the library is not a "work based on the Program".

No, but the complete sources are (not the GPL uses "complete source code",

> > The would seem quite reasonable, but I have two difficulties:
> > (1) the activation of section 2 is independent of the "which must be
> > distributed under... " clause in 3a, but simply caused by the fact that those
> > complete sources are considered to be a derived work of the Program under
> > copyright law (whence a work based on the Program),
> I don't agree with this statement.  When I combine a short story by two authors
> in an anthology, neither story is a "derived work" of the other.  Of course the
> combined anthology is a derived work of both.

And the complete sources are analogous to the combined anthology. So you agree
with me.

> > and (2) this would seem to
> > be exactly what you try to be avoiding, namely that the complete sources have
> > to be licensed under the GPL.
> I'm not trying to avoid anything, I am just trying to make sense out of a poorly
> drafted legal document.
> The problem with this debate has been all along that most people are
> ends-oriented:  they want the GPL to mean something, so they go through all sorts
> of contortions to have it mean what they want.  I don't believe I am stricken
> with that attitude.

Nor am I. I'm glad though you state your position, it wasn't obvious.

> > If I recall your position correctly you'd rather
> > not consider the complete sources as a derived work of the Program under
> > copyright law, but rather as a compilation which happens to contain (parts of)
> > the Program. But then (in your reading) 2b fails to require giving permission
> > to redistribute any parts of the complete source,
> Right, 2(b) would apply only to the Program and derived works of the Program,
> including the binary.
> > except those that are also
> > part of the (original) Program, contrary (I think) to what you claimed.
> Not sure what this is contrary to.

You're original claim (now cut away) that 2b was saying something about
complete sources, not just about the intersection with the original Program.
> > So I can reformulate
> > your reading of section 3a as follows (the part in brackets being explanation
> > of what is implied by the rest):
> >
> >     a) Accompany it with the complete corresponding machine-readable source
> >     code [each part under whatever conditions it happens to be available for
> >     distribution, maybe some very restrictive EULA, or if copyrighted by the
> >     distributor himself, without any permission to redistribute at all].
> This would be true if the code being distributed is not a derived work of the
> Program.  An example would be a library that uses no GPL'd code.  It obviously
> would not hold true if the changes were made to the GPL'd code; I am talking only
> about completely separate code here.

It would also apply to new additions to a GPL program, that I could retain
full copyright to without any licence.

> >     Moreover [in case those complete sources do not already contain the
> >     entire Program] you must also distribute the Program [as the presence of
> >     this notice indicates, you only have permission to do that under the
> >     conditions of this License; its only sections that concern permission to
> >     copy the Program itself are 1 and (in case of any modifications) 2].
> I don't follow this.
> > Admittedly the second sentence is artificial, but I could find no other way to
> > invoke, in the context of distributing a binary based on a small part of the
> > original Program, the terms of Sections 1 and 2, with "Program" unchanged:
> > apparently not just the complete sources for that binary are subject to an
> > obligation of being distributed, but so should the entire original Program
> > (lest we perform the abomination of restricting "Program" to mean the part
> > that was actually used in the binary).
> If you modify the Program, you don't have to distribute the entire Program.
> Where does it say that? 

It doesn't. But you oppose to restricting the meaning of "Program" to the part
actually used, so I thought I needed to incorporate the whole to get the
meaning you want. Probably I did not succeed.

> > In particular your formulation is not clear about what to do
> > about modifications that are simply additions of code copyrighted by somebody
> > else (but with a sufficiently permissive licence to allow this); you cannot
> > simply replace its licence by GPL (I know how strongly you feel about this).
> Then you couldn't redistribute it.  My clause is truly "viral".  The GPL, as
> written, is not.  The clause would require all authors to license under the GPL
> (of course they could license under other licenses as well, but the GPL would
> have to be one of them).

So under your formulation, one couldn't use any X or BSD code.

I have to go now!

Marc van Leeuwen

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