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Re: QPL clause 3 is not DFSG-free



On Sat, Mar 15, 2003 at 03:06:23PM -0800, Thomas Bushnell, BSG wrote:
> Branden Robinson <branden@debian.org> writes:
> 
> > 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.
> 
> Fair Use does *not* allow you unlimited rights to create derivative
> works.  It might suck, but it just doesn't.  Copyright law restricts
> copying and the preparation of derivative works, even if you don't
> distribute the derivatives.

Fine, then I assert that any license, to be a Free license, must permit
the licensee the unrestricted right to prepare derivative works of any
nature (and copy and use those derived works).

The distribution of those derived works is another matter entirely.

> So I think it's perfectly reasonable to read this license as saying
> nothing more than "modifications, insofar as they are restricted under
> copyright law, can only be made under the following terms."

I'm not saying it isn't reasonable to read the license that way, but I'd
rather have a license that's crystal clear on the subject.  Licenses
have a tendency to be used and applied to works not created by the
author of the license document itself.  Those other people may not
interpret the license in the same way.

> As long as the terms are themselves acceptible ones for free software
> licenses, we're fine.

As long as we agree on what's acceptable for a Free Software license,
yes.  :)

> > 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]).
> 
> Except the alleged discrimination (if it's really that) guarantees
> that your modifications will be available under the free license.

So what?  I don't understand how this point rebuts mine.

> So this isn't really much wilder than the BSD license, although it is
> kludgily expressed.

The BSD license doesn't compel you to assign any rights whatsoever back
to the "initial developer", or to anyone else.

> > 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.
> 
> Except the right that the copyright holder gets is simply the right
> that *everyone* gets in this case.  

No, it's a special right reserved to the "initial developer".  This is
unlike the GNU GPL, in which rights are only transmitted between
distributor and distributee, or distributor and the whole world ("all
third parties").

> > 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?
> 
> I think the reason is that the "non-exclusive royalty-free right" is
> precisely what the GPL already requires you to give everyone who comes
> into possession of your changes.  

Right; the GNU GPL doesn't discriminate in favor of the initial
developer, who is *presumably* (though, interestingly, not by
definition) the copyright holder.  In order to exercise your rights
under clause 3 of the QPL, you have to give something to the initial
developer.  This sort of quid pro quo is not the way any other
commonly-accepted Free Software license works.

-- 
G. Branden Robinson                |    Somebody once asked me if I thought
Debian GNU/Linux                   |    sex was dirty.  I said, "It is if
branden@debian.org                 |    you're doing it right."
http://people.debian.org/~branden/ |    -- Woody Allen

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