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The use of Invariant Sections in the Gnu FDL

[cc'd to debian-legal, since discussions there are in large part my
motivation for writing this document.]

I have no legal experience, nor do I in any way speak for debian-legal
or Debian proper (I am not even a member of Debian, a Debian
developer).  My knowledge of these issues comes only from reading the
goings-on on the debian-legal mailing list.  But from my reading on
this mailing list I've become convinced of two things:

Licenses are *complicated*.  The apparently simple ones often have
nasty gotchas that could trip up the user and/or the author in ways he
or she would never expect.  And then there are the obviously
complicated ones; these can be extremely difficult for someone like
myself (let alone someone who doesn't have the benefit of having read
several different licenses on debian-legal or similar) to parse and

The other thing I've become convinced of is that licenses are
*necessary*.  People can act in surprising and unpredictable ways for
reasons that we, as free software folks, often have trouble
understanding.  Licenses are a way (a way that is not without its
imperfections) for us to make our own understandings and perspectives
explicit, as well as legally meaningful.  This is good for the
community, because we understand each other (not perfectly, but better
than we would otherwise).  And it's also good for the obvious legal

These two facts are part of why I am so grateful that the Free
Software Foundation exists and goes to the trouble to write and
maintain licenses like the GPL, the LGPL, and now the FDL.  The
licenses that you write have your stamp of approval, and you are a
highly respected organization.  There is an implicit trust that the
Free Software Foundation will always take the side of Free Software,
and we can trust that if the Free Software Foundation says something
is Free, then it's _Free_. So the rest of us don't have to worry about
licenses and loopholes -- something that is beyond the ability and
inclination of almost all of us anyway.  It's true, we ignore these
issues at our own peril, but we are not lawyers.  This, I believe, is
one of the very important roles that the Free Software Foundation

This is also why I am so disappointed with the FDL.  The FDL
incorporates the idea of an Invariant Section: something which may not
be modified and which must forever (or until the copyright expires) be
attached to the FDL'd work.  This restriction on modification, in my
personal opinion, makes a FDL'd document non-free.  I am not
permitted to use a particularly clever illustration, or particularly
clear example (assuming it is large enough or significant enough not
to be permitted by fair use), in my own work without including any and
all Invariant Sections in my own document.  I also do not have the
freedom to exclude an Invariant Section if I decide that it is
inappropriate in a particular context or for a particular audience
(online help in an embedded app, for example). Cover Texts and History
sections are similar in some ways, but so long as a Cover Text is not
too large, these appear to simply be a way of saying "Give credit
where credit is due" -- something I agree with and can understand.
But this maxim does not describe the use of Invariant Sections.

I am not going to try to say that the FDL, when used with Invariant
Sections, is not Free.  Freeness is a hard thing to nail down, and
certainly on this issue reasonable people can disagree.  Many people
(including myself, if it comes to that) do not feel that the same
standard of freedom should be applied to software as should be applied
to other copyrighted works. I am simply going to say that, after
giving considerable thought to the issue, _in my opinion_ it is not
free.  What's more, I strongly suspect that there are others who feel
as I do, and still others who are not aware of the issue, but if it
were explained to them would feel as I do.

For this reason, if for no other, I believe that the Free Software
Foundation should acknowledge this controversy in some way.  To do
otherwise would violate the principle of least surprise.  There are
several approaches I can see the Free Software Foundation taking:

* One option, and the one I like the best, would be to simply remove
  the idea of invariant sections from the FDL.

* Another option, as has been suggested elsewhere, would be to write
  two licenses.  Perhaps they could be called the FDL and the Lesser
  FDL, by analogy with the GPL and the LGPL.  The Lesser FDL would
  allow non-free sections (Invariant sections) to be "linked" to the
  document. The analogy is not perfect, of course, because where it is
  possible to incorporate LGPL code into GPL software, it would not be
  possible to detach non-free documents from a Lesser FDL document,
  thus making it impossible to mix LFDL and FDL documents.

* The other option, which I like the least, would be to explicitly
  acknowledge that Invariant Sections trouble some people, and cause
  some people to consider a document containing them to be not
  Free. This would not be a complete solution to the problem, but it
  would ensure that those who use the FDL (either for their own work,
  or by using the work of others that may be under the FDL) are aware
  that the use of Invariant Sections is a potentially troubling issue,
  and can form their own opinions on the matter accordingly.

Thanks for your time in reading this, and I appreciate as well that
you sought public feedback on the FDL.  I hope this note will be of
some use to you.

Jeremy Hankins <nowan@nowan.org>
PGP fingerprint: 748F 4D16 538E 75D6 8333  9E10 D212 B5ED 37D0 0A03

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