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Re: discussion with the FSF: GPLv3, GFDL, Nexenta

On Sat, Jun 02, 2007 at 09:29:08PM -0700, Don Armstrong wrote:
> Choice of venue clauses can short circuit the normal determination of
> jurisdiction in civil cases in some jurisdictions in some cases.

Contracts and licenses in general short-circuit the normal determination
of rights under common or legislated law in some jurisdictions in some
cases too.

> Since this is giving up a right normally enjoyed in exchange for the
> ability to use or modify a work, it appears be a fee, and as such
> fails DFSG 1.

You're not giving up any rights, you're gaining the right to modify and
distribute the software under certain conditions, just as you are under
the GPL. There's no "fee" involved, any more than there is under the GPL's
requirement to release your modifications under the GPL or to provide
source when you distribute binaries. You're required to give up something
you might value and otherwise demand compensation for, certainly, but
there needs to be something more than that to violate the DFSG.

It's possible that there's actually something bad about choice of venue,
but analogising it to a "fee" just makes the discussion completely opaque
to anyone who's not interested in theoretical DFSG analysis. If the DFSG
doesn't have a clause that covers why it's bad, we can change the DFSG;
but if we don't have a good, simple explanation why it's bad for actual
free software users and developers, there's no need to be claiming
it's non-free.

The DFSG are a set of *guidelines*, if you can't explain violations
in simple, understandable terms, they're not violations. Equally, just
because something doesn't directly and clearly contradict some specific
text in the DFSG, it may still be a real violation.

> > And if you really want to have licenses determined by how people
> > "feel" rather than analysing the effects of the license in real
> > world situations as compared to what's actually written in the DFSG,
> > I expect you'll find we just end up with more GRs like the the GFDL
> > GR that doesn't match commonly held opinions on debian-legal at all.
> I'm personally using "feel" as shorthand for "my understanding of the
> legal situtation regarding this clause and its relation to the DFSG"

That's great, but *your understanding* isn't any more important than
anyone else's. Nor is Francesco's, nor is Bernhard's. There's something
fundamentally wrong with the way discussions work on debian-legal that
people think that simply posting their understanding is a valuable

The reason why it's not is that it doesn't provide any good way of
resolving disagreements: you can either revert to authority (such as
ftpmaster's), you can resort to polls (such as a GR or an informal one on
forums.debian.net), or you can attack people who hold different opinions
in the hopes that they'll stop speaking and thus not be heard in future.

> I'm well aware that I'm personally more concerned about licensing
> matters than the average developer, but then again, that's also why I
> (perhaps na?vely) expect people who disagree with my analysis to
> actually engage the analysis with counter arguments, come to a
> complete understanding of the problem, and then make a determination.

And implying that other people aren't sufficiently "concerned about
licensing matters", aren't "actually engag[ing] the analysis with counter
arguments", don't have a "complete understanding of the problem" in order
to stop them "mak[ing] a determination" sounds like a pretty good match
for the last case.

Ultimately Debian's policy isn't going to be decided by whoever
understands legal issues the best, it's going to be decided by the
developers who contribute to Debian, whether they fully understand things
or not. Trying to limit the discussion to experts is all very well, but
it'll just leave non-experts ignoring the discussions when they end up
making the ultimate decision.

> My goal is to convince ftpmasters and developers that my analysis is
> reasonable, and that these works with licenses containing these kinds
> of clauses have no place in main. Failing that, I can only educate
> users and [...]

If the project doesn't adopt your views, then promoting them to users
as though they're an official consensus isn't "educat[ing] users", it's
misleading them. That shouldn't stop you from promoting your opinion
*as your opinion*, but honesty demands that you at least make it clear
where official policy ends and your opinion begins.

FWIW, I don't think "ftpmaster's opinion is final, discussion on -legal
is nice but ultimately irrelevant" is a satisfactory way of deciding
official policy on this. But while discussion on debian-legal of
views such as "non-DDs opinions aren't official Debian policy", "the
GFDL without invariant sections is a free license", "choice of venue
doesn't stop a license (eg the MPL or CDDL) from being a free license",
"the dissident test doesn't need to be passed by all DFSG-free licenses",
"RFCs don't need to be free" is more or less unwelcome -- or at the very
least seen as unwelcome by people who hold those views -- I don't see
any way of improving things.

In particular, whoever ends up responsible for Debian's official policy
will need to spend their time educating users on what the official policy
actually *is*, not their opinion on what the official policy should have
been. To take a particular example: if you want to retain the privelege
to call the GFDL vote result "wrong", you're excluding yourself from
being in a position to define Debian's interpretation of "free software".
(And it doesn't matter what the outcome of that vote had been -- including
if it had been "the GFDL is a free license even with invariant section")

For reference, ftpmaster's votes on the GFDL resolution were:

     Option 1----->: GFDL-licensed works are unsuitable for main in all cases
   /  Option 2---->: GFDL-licensed works without unmodifiable sections are free
   |/  Option 3--->: GFDL-licensed works are compatible with the DFSG [needs 3:1]
   ||/  Option 4-->: Further discussion
V: 1--2	          troup	James Troup
V: 1144	            ajt	Anthony Towns
V: -1-2	        rmurray	Ryan Murray
V: 12-3	        rdonald	Randall Donald
V: 1342	          joerg	Joerg Jaspert
V: 1141	         jeroen	Jeroen van Wolffelaar

which would've resulted in Option 1 winning if ftpmaster were the only
consideration (A>B (3:1), A>C (5:0), A>D (4:1), B>C (5:0), B>D (3:2),
D>C (5:0)). Personally, I think comparing the reactions to getting
overruled by GR of ftpmaster members to various subscribers of -legal
is probably instructive. YMMV, of course.


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