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Re: PHP-Nuke License Conclusion?



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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