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QPL clause 3 is not DFSG-free



On Wed, Mar 12, 2003 at 01:07:41AM -0800, Thomas Bushnell, BSG wrote:
> Branden Robinson <branden@debian.org> writes:
> 
> > On Tue, Mar 11, 2003 at 12:03:59PM -0800, Thomas Bushnell, BSG wrote:
> > > Ok, I think you're right.  That means the QPL is not actually a
> > > problem, even if you object to all forced publication requirements.
> > 
> > Can someone spell this out (again?) for my crippled mind?
> > 
> > This might be good fodder for the FAQ.
> 
> The problematic QPL clause only applies as part of a special exception
> in the license: certain kinds of derivative works which you don't have
> to license under the QPL itself.  

I'm sorry, but it appears to me that there is more than one problematic
QPL clause:

 3. You may make modifications to the Software and distribute your
    modifications, in a form that is separate from the Software, such as
                   ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
    patches.  The following restrictions apply to modifications:

This restricts modifications to separate patch files.  Furthermore, these
restrictions attach to the mere act of modification, and not to distribution of
modifications (or a modified version of the work).

It is easy to read the DFSG as saying that the above are hunky-dory, but I
forward them as points of concern nonetheless, as they are directly relevant to
discussions we've been having lately on this list.

a. Modifications must not alter or remove any copyright notices in the
   Software.

This is fine, except that it attaches to modification and not
distribution of modifications that do this.  We should encourage
licensors to be more clear about this issue, and not attempt to restrict
activities that should be protected under Fair Use doctrines.

b. When modifications to the Software are released under this license, a
   non-exclusive royalty-free right is granted to the initial developer of the
   Software to distribute your modification in future versions of the Software
   provided such versions remain available under these terms in addition to any
   other license(s) of the initial developer.

This is a problem.  If you license your modifications under the QPL, you
give the "initial developer" (often Trolltech AS) a special privilege
that is not given to other parties, even if your modifications are so
extensive and original that they merit independent copyright protection.
(In fact, this special privilege is granted *only* in that case, for in
situations where the modifications are so trivial that there is no
copyrightable derived work, clause 3b is unnecessary.  In the U.S., at
least, the seed of copyright can find no root in trivial
modifications[1]).

As an aside, while researching my position on this issue, I learned that
(again, in the U.S.) computer source may have a higher threshold to meet
to merit copyrightablilty in the first place; in other words, the
formalism of source code may mean that copyright protection would attach
to a quantity of fictional prose, but not to an equivalent quantity of
source code[2].

I believe it is illegitimate and inimical freedom to grant special
privileges in a license to a copyright holder that other receipients of
a distributed work do not get, especially since the original copyright
holder already has tons of rights that other receipients don't have.

If we were to replace "a non-exclusive royalty-free right is granted"
with something else of value such as "a payment of US $1,000 must be
paid"; "the title to the modifier's automobile, if the modifier owns
one, must be signed over"; or "a perpetual, non-retractable grant of
permission to engage in sexual intercourse with (1) the modifier, if the
modifier is female; (2) if the modifer is not female, the modifier's
nearest female relative aged 18 years or greater must be extended", then
we all would certainly reject such a requirement as
DFSG-non-free...wouldn't we?

Why, then, are the potential copyrights of free software hackers who
modify QPLed works without value?

This is an issue I've raised before; I have long wanted a clause that
represents a nexus of concerns related to DFSG 1, DFSG 3, DFSG 7, DFSG
8, and DFSG 9.  "License must not demand consideration in exchange for
permissions granted therein", or something like that.

I therefore cannot agree with the theory that QPL clause 6, even if
non-free, does not render the license in toto non-DFSG-free, because the
posited alternative that avoids clause 6 is to use clause 3.

For these reasons, it is my opinion that the QPL is not a Free Software
license.  To recall my analogy to the U.S. legal system, I would regard
any interpretation of the DFSG that permits the QPL to be regarded as
Free as violative of the Debian Social Contract, in which we promise
that "Debian Will Remain 100% Free Software".

[1] Woods v. Bourne Co., 60 F.3d 978, 990 (2d Cir. 1995)
  "In order for a work to qualify as a derivative work it must be
   independently copyrightable. [...] The basis for
   copyright protection contained in both the Constitution and the
   Copyright Act is originality of authorship."

[2] Hearn v. Meyer, 664 F.Supp. 832, 847 (S.D.N.Y. 1987)
  "It is well understood that authors wishing to express ideas within
   the context of factual background often can choose from only a
   limited number of terms. Copyright protection is afforded rarely
   where a fact permits only a narrow continuum or spectrum of
   expression."

-- 
G. Branden Robinson                |      It doesn't matter what you are
Debian GNU/Linux                   |      doing, emacs is always overkill.
branden@debian.org                 |      -- Stephen J. Carpenter
http://people.debian.org/~branden/ |

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