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DFSG analysis of default LDP license



Colin Watson helpfully provided this information in a recent mail:

"The default LDP licence (one which many documents use explicitly and
which it's been agreed applies to any documents which don't specify a
licence) is a little longer but still quite reasonable, and is also more
or less a copyleft. Counting the defaulted documents, it's the most
popular licence among the (mini-)HOWTOs, beating GFDL-1.1-no-invariants
by a whisker."

So, we should probably be fair and subject this license to a DFSG
analysis just as we have the GNU FDL.

  II. LICENSE

      The following license terms apply to all LDP documents, unless
      otherwise stated in the document. The LDP documents may be
      reproduced and distributed in whole or in part, in any medium
      physical or electronic, provided that this license notice is
      displayed in the reproduction. Commercial redistribution is
      permitted and encouraged. Thirty days advance notice via email to
      the author(s) of redistribution is appreciated, to give the authors
      time to provide updated documents.

I see no problems with the above.  The final sentence would be a
violation of DFSG 1, failing the "desert island test", if it were a
requirement rather than a request, but it is not.

       A. REQUIREMENTS OF MODIFIED WORKS

          All modified documents, including translations, anthologies, and
          partial documents, must meet the following requirements:

BUG: The requirements should apply to distribution of modified works,
not the act of modifying in and of itself, which may not be within the
scope of copyright law in some jurisdictions.  In the U.S., for
instance, one is entitled to arbitrarily modify or deface copies of a
copyrighted work in one's possession, such as a Harlequin romance novel
or a Dixie Chicks music CD.  Furthermore, under the First Sale doctrine
(also a U.S. concept), it is not an infringement of copyright to sell or
give away such a modified/defaced copy to another party.  How the First
Sale doctrine interacts with Free Software licenses and other public
licenses has not, to my knowledge, been analyzed in depth on
debian-legal.  It probably merits some thought in a different thread.

I recommend rewriting the above as:

"Modified copies of a document under this license (including
translations, anthologies, and partial documents) may be distributed
provided each copy meets the following requirements:"

           1. The modified version must be labeled as such.

First Sale analysis notwithstanding, this is not a problem.  DFSG 4
recognizes the importance of distinguishing the work of the original
author from the work of others, even if the body of DFSG 4, in my
opinion, only clumsily gropes around the issue, which I think of as "the
endorsement principle".

           2. The person making the modifications must be identified.

First Sale analysis notwithstanding, this is not a problem.  This will
happen anyway if the modifier is creating a "derivative work" under U.S.
copyright law and wishes to assert his or her copyright.

           3. Acknowledgement of the original author must be retained.

My analysis of clause 1 applies to this as well.  It is interesting that
this license requires retention of original-author acknowledgements in
modified copies whereas, depending on if and how one uses an
"Endorsements" section, the GNU FDL requires deleting them!

           4. The location of the original unmodified document be
              identified.

BUG: Walter Landry has pointed out:

  "[The GNU FDL] requires me to preserve the network location of where
  Transparent versions can be found for four years.  Even if it is no
  longer correct, and the original author can not be reached.  This is
  probably not uncommon.  This does not raise the quality of free
  documentation."[2]

If this argument holds water, I do not see why it wouldn't apply to any
license making the same basic requirement, not just the GNU FDL.

I feel that this clause might be problematic in a way that clauses 1, 2,
and 3 would not be, in that the information in 1, 2, and 3 cannot become
false over time.  (If a document is eventually wholly rewritten, the
"original author's" copyright no longer attaches anyway.)

The Debian Project appears to be moving towards a consensus that
compelled speech is incompatible with Free Software.  Many of us are
only willing to draw fairly narrow exceptions to that rule:
        1) applicable, non-redundant copyright notices
        2) applicable, non-redundant notices of authorship
        3) applicable, non-redundant licensing terms for copyrights,
           patents, and trademarks
        4) applicable, non-redundant statements of warranty (or
           disclaimers thereof)
        5) applicable, non-redundant disclaimers of endorsement [3]

[Does anyone on the -legal list have any suggestions for additions to
the above list?]

I recommend dropping this clause.

           5. The original author's (or authors') name(s) may not be used
              to assert or imply endorsement of the resulting document
              without the original author's (or authors') permission.

BUG: This license asks the modifier to walk a fairly fine line between
this clause and clause 3.  Not "asserting" endorsement is fairly easy.
Not "implying" endorsement can be more difficult.  Imagine changing a
document under this license to include something generally found
offensive, such as neo-Nazi rhetoric.  The author may find himself on an
ADL blacklist just because his name appears in the work as primary
author.  (It has been argued that in some European jurisdictions, the
author could compel the suppression of the work so modified.)

I recommend striking the words "or imply".  What might help to ensure
that the intent of this clause is retained is adding a paragraph to the
license similar to the screaming-caps "NO WARRANTY" sections in many
licenses.

Here's one I proposed last June[4]:

BECAUSE THE CONTENT OF THE WORK IS FREELY MODIFIABLE BY ALL THIRD
PARTIES, THERE IS NO WARRANTY THAT ANY REPRESENTATIONS MADE WITH IN ARE
MADE BY, ON BEHALF OF, OR WITH THE CONSENT OF THE AUTHOR(S) OR COPYRIGHT
HOLDER(S).  ANY STATEMENTS MADE WITHIN THE WORK ARE NOT NECESSARILY
HELD, SHARED, OR ENDORSED BY THE AUTHOR(S) OR COPYRIGHT HOLDER(S).

          In addition it is requested that:

           1. The modifications (including deletions) be noted.
           2. The author be notified by email of the modification in
              advance of redistribution, if an email address is provided
              in the document.

These are requests rather than requirements and are therefore not under
consideration from a DFSG perspective.

          As a special exception, anthologies of LDP documents may include
          a single copy of these license terms in a conspicuous location
          within the anthology and replace other copies of this license
          with a reference to the single copy of the license without the
          document being considered "modified" for the purposes of this
          section.

This is a grant of permission, not a restriction, so I'm not going to
worry about it.  (It's perfectly sensible, anyway, and reflects what
aggregators like Debian do in practice with GPLed works, for instance.)

          Mere aggregation of LDP documents with other documents or
          programs on the same media shall not cause this license to apply
          to those other works.

This clarification is a nice touch which helps to ensure that DFSG 9 is
not violated.

          All translations, derivative documents, or modified documents
          that incorporate any LDP document may not have more restrictive
          license terms than these, except that you may require
          distributors to make the resulting document available in source
          format.

This renders the license a copyleft, and is not objectionable on DFSG
grounds as far as I can see.  One possible shortcoming that may enable
abuse of this license is that the license does not define "source
format".

          LDP documents are available in source format via the LDP home
          page at http://sunsite.unc.edu/LDP/.

<http://www.redhat.com/mirrors/LDP/> appears to be a more accurate URL
these days.  However this is an informative statement, not a normative,
and doesn't appear to be germane to a DFSG analysis, even if it someday
turns out to be an incorrect or misleading statement.

I don't see any flagrant DFSG violations in the above license, but I
think some requests for clarification might be a good idea.

[1] A ''derivative work'' is a work based upon one or more preexisting
    works, such as a translation, musical arrangement, dramatization,
    fictionalization, motion picture version, sound recording, art
    reproduction, abridgment, condensation, or any other form in which a
    work may be recast, transformed, or adapted. A work consisting of
    editorial revisions, annotations, elaborations, or other
    modifications which, as a whole, represent an original work of
    authorship, is a ''derivative work''.

    http://www4.law.cornell.edu/uscode/17/101.html

[2] http://lists.debian.org/debian-legal/2002/debian-legal-200202/msg00082.html

[3] We haven't seen many of these but I think they're going to become
    important as the Free Software community comes to grapple with
    freely-licensed works that aren't software (however one chooses to
    define that term).

[4] http://lists.debian.org/debian-legal/2002/debian-legal-200206/msg00217.html

-- 
G. Branden Robinson                |     You could wire up a dead rat to a
Debian GNU/Linux                   |     DIMM socket and the PC BIOS memory
branden@debian.org                 |     test would pass it just fine.
http://people.debian.org/~branden/ |     -- Ethan Benson

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