On Tue, May 13, 2003 at 06:46:31AM +0200, Henning Makholm wrote: > Scripsit Branden Robinson <branden@debian.org> > > > If you don't share my position, that's fine, but you haven't yet > > articulated why. > > I have. Multiple times. Someone using your name and imitating your > style of writing rather convincingly have replied to several of those > postings. No, as far as I can tell from reviewing the messages you've cited, you've merely asserted that where we think we can discern the author's intention, we let him call whatever he wants "the GPL". > Digging in the archives turns up that it has not always been you who > made the false claim that GPL+more restrictions is necessarily > internally inconsistent. I apologize for implying that. Calling it a "false claim" is overreaching given that you've never actually constructed an argument illustrating its falsity. Proof by assertion is no proof at all. > I point you to > http://lists.debian.org/debian-legal/1999/debian-legal-199912/msg00231.html > http://lists.debian.org/debian-legal/2002/debian-legal-200210/msg00093.html > http://lists.debian.org/debian-legal/2003/debian-legal-200303/msg00025.html > http://lists.debian.org/debian-legal/2003/debian-legal-200303/msg00007.html > > and (not by me but arguing the same point) > > http://lists.debian.org/debian-legal/2003/debian-legal-200303/msg00000.html Okay, so you and Nick Phillips will cotton to "the GNU GPL" being a variable rather than a constant, defined by whoever happens to be the voice of the copyright holder at the moment, possibly as passed through the prism of debian-legal's interpretation of the copyright holder's words. Simon Law, Anthony DeRobertis, and I do not. Sounds like a split among us old-timers. Additionally, Seth David Schoen, a not insignificant figure in the community, comes down on my side of the argument. (However, I'll acknowledge that any of the above people -- aside from you and I -- may have changed their minds on this point in the interim. Mr. Schoen in particular has had over three years to do so.) > > Please address the arguments in > > <http://lists.debian.org/debian-legal/2003/debian-legal-200304/msg00294.html> > > Your core argument in that message is > > | However, in practice, most people don't do what the FSF recommends in > | their FAQ. They just say "it's under the GPL" and slap extra > | restrictions somewhere else -- perhaps in a README file. > > I am completely unconvinced by your tacit leap from "most people do > this wrong" to "it is impossible to do it right, and Debian always > interprets even cases where it is done right as non-distributable". This is refutation by assertion. You haven't addressed my points at all. My "leap" is not a leap, neither is it tacit. Since you insist on handwaving past them, I guess I'll have to try harder to make you look at them, by re-quoting my arguments. [I have asserted that the way most people add restrictions to the GNU GPL] -- at least in cases that have come to my attention via the debian-legal list -- results in a license that is internally inconsistent, and thus impossible to satisfy while exercising one's traditional freedoms with a copyleft. The result is that the license never attaches, and people have only the rights that traditional copyright law -- or, potentially, an alternative license arrangement with the copyright holder -- grant. It's not illegal to not have a license to copy and distribute a copyrighted work [...]. My argument hinges on three observations. Observation One --------------- The scope of the terms and conditions, a.k.a. restrictions, is clearly defined by the text of the GNU GPL. Any restrictions beyond that are forbidden by section six. I'll do some snipping of the GPL text[1] to make it clear. [...] TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION [...] 6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License. [...] END OF TERMS AND CONDITIONS "...the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to THESE TERMS AND CONDITIONS." [emphasis added] It is obvious to me that "THESE TERMS AND CONDITIONS" is meant to refer to the text between "TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION" and "END OF TERMS AND CONDITIONS". Observation Two --------------- The FSF claims copyright in the text of the GPL itself, and does not extend permission to anyone to modify it. Copyright (C) 1989, 1991 Free Software Foundation, Inc. 59 Temple Place - Suite 330, Boston, MA 02111-1307, USA Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed. Therefore, making modifications to the area between "TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION" and "END OF TERMS AND CONDITIONS" might be considered by the FSF as an infringement of their copyright in the text of the GNU GPL. Observation Three ----------------- The FSF does not want people "forking" the GPL, and think that license proliferation is a bad thing. To the extent that they can, they prevent proliferation of GPL-esque licenses by withholding permission from people to modify the text of the GPL itself. See the GPL FAQ[2]: Can I modify the GPL and make a modified license? You can use the GPL terms (possibly modified) in another license provided that you call your license by another name and do not include the GPL preamble, and provided you modify the instructions-for-use at the end enough to make it clearly different in wording and not mention GNU (though the actual procedure you describe may be similar). If you want to use our preamble in a modified license, please write to <licensing@gnu.org> for permission. For this purpose we would want to check the actual license requirements to see if we approve of them. Although we will not raise legal objections to your making a modified license in this way, we hope you will think twice and not do it. Such a modified license is almost certainly incompatible with the GNU GPL, and that incompatibility blocks useful combinations of modules. The mere proliferation of different free software licenses is a burden in and of itself. We can see that it is possible to create license derivative in effect of the GNU GPL; perhaps the FSF is cognizant of legal cases in the U.S. that withhold copyright protection from the terms of contracts, since they seem -- vaguely -- to be constraining the actual restriction on modification to the preamble and instructions-for-use, which fall outside the "TERMS AND CONDITIONS". (While as far as I know this area is still being litigated -- of course -- I am given to understand that many lawyers and judges feel that it places too much on the legal system to compel people to reword the terms of contracts, possibility introducing ambiguity or unenforceability, to avoid infringing the copyrights of others.) However, in practice, most people don't do what the FSF recommends in their FAQ. They just say "it's under the GPL" and slap extra restrictions somewhere else -- perhaps in a README file. It is this practice that I call internally inconsistent, for it demands that the phrase "these terms and conditions" be incompletely specified as used in the GNU GPL. And, of course, even if one feels that this isn't a problem, there is *still* the issue of incompatibility with all other GPLed works in the world. I therefore think it's a good idea for people forking the GPL to rename the license, quite apart from whether or not one fears criticism or suit from the FSF over it. If your license isn't the "GNU GPL" that everyone reads at [1] and which the Debian Project and tons of other people tell the whole world they can get by writing to the Free Software Foundation, then you run the risk of goading people into infringing the copyright license you thought you were imposing. I am not sure that a copyright holder can be held liable for vicarious infringement in his own work -- probably not -- but it's an unfriendly thing to do, and the Debian Project is right to reject such licenses as ambiguous. It is valuable to the Free Software community that "GNU GPL" consistently mean the same thing when people refer to it. [1] http://www.gnu.org/copyleft/gpl.html [2] http://www.gnu.org/copyleft/gpl-faq.html Refuting the conclusion I draw from Observation One would be the simplest way to undermine my argument. To do that, all you have to do is show that the phrase "THESE TERMS AND CONDITIONS" in the GNU GPL is not meant to, and does not in fact, refer to the text between "TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION" and "END OF TERMS AND CONDITIONS". -- G. Branden Robinson | "To be is to do" -- Plato Debian GNU/Linux | "To do is to be" -- Aristotle branden@debian.org | "Do be do be do" -- Sinatra http://people.debian.org/~branden/ |
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