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PROPOSED: interpretive guidelines regarding DFSG 3, modifiability, and invariant text

[RMS: I invite your participation in this process.]


Per recent discussion on the debian-legal mailing list regarding DFSG
section 3 and provisions of the GNU Free Documentation License that
allow for non-modifiable "Invariant Sections", and "Cover Texts", I am
proposing a guideline for interpretation of the DFSG that permits
GNU FDL-licensed materials to be regarded as DFSG-free, provided certain
criteria are met.


The Debian Free Software Guidelines and Social Contract:

The GNU Free Documentation License:

Previous debian-legal discussion:
...and most of the subsequent traffic for the month.

Please read the above materials if you are not familiar with them before
participating in this discussion.

1) The ability of users and developers to modify, and distribute
modified copies of, software and ancillary material (such as
documentation on how to use software) is held as a value by the Debian
Project and the Free Software community;
2) Certain information such as the terms under which copyrighted
material is licensed for reproduction and other activities outside the
traditional scope of Fair Use is not considered to be an integral part
of the software -- or other work -- so licensed;
3) The Debian Free Software Guidelines (DFSG) neither specify, nor
constrain the scope of, which materials distributed by the Debian
Project must be modifiable and must permit redistribution of modified
4) The actual text of the GNU General Public License (GPL), the GNU Free
Documentation License (FDL), and perhaps other licenses used within the
Debian Project whose terms meet the Debian Free Software Guidelines are
themselves copyrighted documents for which permission to modify has not
been granted;
5) The Free Software Foundation, long a pillar of the Free Software
community as we know it today, promulgates the GNU Free Documentation
License, which permits authors to mark parts of a work so licensed as
non-modifiable, as long as they are auxiliary to the main content (see
sections 2 and 4L of the GNU FDL, as well as section 4 of the GNU FDL
generally, for further restrictions on modification);
6) The Debian Project needs power to reject GNU FDL-licensed works if
they employ Invariant Texts inappropriately, in contravention of the
spirit of the License;
7) The Debian Project has a direct interest only in electronic data
storage and transmission; restrictions that apply to printed material or
other fixed, commercially-traded forms[1] are not of direct interest to
the Project;

I propose the following guidelines for interpretation of DFSG 3:

1) Copyright notices used as such (i.e., not as examples) are permitted
to be held non-modifiable.  In actual fact, modification of copyright
notices is construed as infringement of copyright in many jurisdictions
in the world.
2) License text used as such (i.e., not as an example), and applied by
one or more copyright holders to a work submitted for distribution by
the Debian Project, is permitted to be held non-modifiable.  Only actual
contractual license terms are protected under this interpretive clause.
Material that is used to inform, persuade, exhort, or otherwise interact
with the (putative) licensee but which is not legally binding is not
convered by this clause.
3) For works whose primary purpose is as instruction code for a
computer[3] An amount of auxiliary material whose function is to inform,
persuade, exhort, or otherwise interact with the putative licensee but
which is not legally binding is permitted to exist in conjunction with
the license terms (and the packaging of the work so licensed may reflect
this).  Such material may not exceed 16 binary kilobytes (16,384 bytes)
when viewed in plain-text form (treating all adjacent white space
characters as one byte).  Non-textual, binary data held as
non-modifiable information by the copyright holder(s) also counts
byte-for-byte toward this limit.
4) For works whose primary purpose is not as instruction code for a
computer[3], a percentage of the work considered as a whole is permitted
to be held non-modifiable by the copyright holder(s); this proportion
must not exceed 5%.  Furthermore, the non-modifiable component(s) must
meet the following criteria:
	A) They must be incidental to the content of the work itself.
	Notices of authorship, acknowledgements, and editorial markup
	are examples of such incidental material.  A good rule-of-thumb
	for judging whether material is "incidental" might be: "Is the
	value of the work in its own right diminished if this material
	is excised?"  Consider how the work may be republished after it
	falls into the public domain when making this determination[4].
	B) Non-modifiable components must be treated as being in the
	same format as the modifiable components when making the
	determination of proportion.  In other words, supplying all
	non-modifiable parts of a work in compressed form so as to
	escape the 5% limit is not allowed unless the rest of the work
	is compressed the same way.

5) This proposal does not include any procedures for resolution of disputes
regarding the meaning of the DFSG, the meaning of any particular
license, the determination of the existence of or proportion of
modifiable or non-modifiable material in a work, or any other such
issues of possible contention.  Any such procedures determined in the
future notwithstanding, creative circumlocutions in the interpretation
of these guidelines are discouraged.

I am seeking discussion of these guidelines, and outright seconds if
anyone actually agrees with me.  :)

[1] This is a point that should be explored.  A license that applied to
CD-ROMs but not hard drive platters or to hard drive platters but not
dynamic RAM is quite within the realm of possibility[2], so Debian needs
to be careful not to constrain its interest too tightly.  Perhaps Debian
should require DFSG-compliance for all digital formats, as we do not
want to hamstring the Project in the future as technology advances.

[2] Witness efforts by the media cartels to pass laws forbidding the
cacheing of "proprietary information".  As I understand it, Windows
Media Player and Real Player already support restrictions like this.
<DaveBarry>I'm not making this up.</DaveBarry>  Therefore the Debian
Project needs to act defensively, and anticipate offensive action from
those interested in a future of memoryless, storageless entertainment
devices which supplant general-purpose computers.

[3] Programs, libraries, scripts, hinted fonts, etc.  Not images,
sounds, music, manuals, poetry, novels, etc.  The basis of determination
shall be the intent of the author for the primary means of use (as far
as can be determined), not the details of the encoding format of the

[4] A typesetter's markup scrawled on a manuscript of _Hamlet_ may be of
interest to some Shakespearean scholars or historians of typography, but
_Hamlet_'s value as a play is neither augmented nor diminished by this
markup, and since _Hamlet_ is in the public domain, any person is free
to include or omit such markup.

G. Branden Robinson                |          You live and learn.
Debian GNU/Linux                   |          Or you don't live long.
branden@debian.org                 |          -- Robert Heinlein
http://people.debian.org/~branden/ |

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