diff --git a/gpl-lgpl.tex b/gpl-lgpl.tex index cc741f32b0815569dfbcb00a9c9e2080f213ebc4..de9a3199583e7cdb2e2e13c5c9020e0c09b1256f 100644 --- a/gpl-lgpl.tex +++ b/gpl-lgpl.tex @@ -2213,10 +2213,72 @@ adds one. Most of these defined terms are somewhat straightforward and bring forward better worded definitions from GPLv2. Herein, this tutorial discusses a few of the new ones. +% FIXME: it's now five, ``Modify'' + GPLv3~\S0 includes definitions of four new terms not found in any form in GPLv2: ``covered work'', ``propagate'', ``convey'', and ``Appropriate Legal Notices''. +% FIXME: Transition, GPLv2 ref needed. + +Although the definition of ``work based on the Program'' made use of a legal +term of art, ``derivative work,'' peculiar to US copyright law, we did not +believe that this presented difficulties as significant as those associated +with the use of the term ``distribution.'' After all, differently-labeled +concepts corresponding to the derivative work are recognized in all copyright +law systems. That these counterpart concepts might differ to some degree in +scope and breadth from the US derivative work was simply a consequence of +varying national treatment of the right of altering a copyrighted work. + +%FIXME: should we keep this? maybe a footnote? + +Ironically, the criticism we have received regarding the use of +US-specific legal terminology in the ``work based on the Program'' +definition has come not primarily from readers outside the US, but +from those within it, and particularly from members of the technology +licensing bar. They have argued that the definition of ``work based +on the Program'' effectively misstates what a derivative work is under +US law, and they have contended that it attempts, by indirect means, +to extend the scope of copyleft in ways they consider undesirable. +They have also asserted that it confounds the concepts of derivative +and collective works, two terms of art that they assume, questionably, +to be neatly disjoint under US law. + +% FIXME: As above + +We do not agree with these views, and we were long puzzled by the +energy with which they were expressed, given the existence of many +other, more difficult legal issues implicated by the GPL. +Nevertheless, we realized that here, too, we can eliminate usage of +local copyright terminology to good effect. Discussion of GPLv3 will +be improved by the avoidance of parochial debates over the +construction of terms in one imperfectly-drafted copyright statute. +Interpretation of the license in all countries will be made easier by +replacement of those terms with neutral terminology rooted in +description of behavior. + +%FIXME: GPLv3, reword a bit. + +Draft 2 therefore takes the task of internationalizing the license +further by removing references to derivative works and by providing a +more globally useful definition of a work ``based on'' another work. +We return to the basic principles of users' freedom and the common +elements of copyright law. Copyright holders of works of software +have the exclusive right to form new works by modification of the +original, a right that may be expressed in various ways in different +legal systems. The GPL operates to grant this right to successive +generations of users, particularly through the copyleft conditions set +forth in section 5 of GPLv3, which applies to the conveying of works +based on the Program. In section 0 we simply define a work based on +another work to mean ``any modified version for which permission is +necessary under applicable copyright law,'' without further qualifying +the nature of that permission, though we make clear that modification +includes the addition of material.\footnote{We have also removed the +paragraph in section 5 that makes reference to ``derivative or +collective works based on the Program.''} + +%FIXME: transition + While ``covered by this license'' is a phrase found in GPLv2, defining it more complete in a single as ``covered work'' enables some of the wording in GPLv3 to be simpler and clearer than its GPLv2 counterparts. @@ -2233,11 +2295,25 @@ possible in its wording and effect. When a work is licensed under the GPL, the copyright law of some particular country will govern certain legal issues arising under the license. A term like ``distribute'' or its equivalent in languages other than English, is used in several national copyright statutes. + +Practical experience with GPLv2 revealed the awkwardness of using the +term ``distribution'' in a license intended for global use. The scope of ``distribution'' in the copyright context can differ from country to country. The GPL does not seek to necessarily use the specific meaning of ``distribution'' that exists under United States copyright law or any other country's copyright law. +%FIXME: rewrite, FSF third person,e tc. + +Even within a single country and language, the term distribution may be +ambiguous; as a legal term of art, distribution varies significantly in +meaning among those countries that recognize it. For example, we have been +told that in at least one country distribution may not include network +transfers of software but may include interdepartmental transfers of physical +copies within an organization. In many countries the term ``making available +to the public'' or ``communicating to the public'' is the closest counterpart +to the generalized notion of distribution that exists under US law. + Therefore, the GPL defines the term ``propagate'' by reference to activities that require permission under ``applicable copyright law'', but excludes execution and private modification from the definition. GPLv3's definition @@ -2245,6 +2321,27 @@ also gives examples of activities that may be included within ``propagation'' but it also makes clear that, under the copyright laws of a given country, ``propagation'' may include other activities as well. +% FIXME: probably merge this in + +Propagation is defined by behavior, and not by categories drawn from some +particular national copyright statute. We believe that such factually-based +terminology has the added advantage of being easily understood and applied by +individual developers and users. + +% FIXME: transition here to convey definition, maybe with \subsection {}, +% also maybe with: Similar is true with the term ``convey''. + +we have further internationalized the license by removing references to +distribution and replacing them with a new factually-based term, +``conveying.'' Conveying is defined to include activities that constitute +propagation of copies to others. With these changes, GPLv3 addresses +transfers of copies of software in behavioral rather than statutory terms. +At the same time, we have acknowledged the use of ``making available to the +public'' in jurisdictions outside the US by adding it as a specific example +in the definition of ``propagate.'' We decided to leave the precise +definition of an organizational licensee, and the line drawn between +licensees and other parties, for determination under local law. + % FIXME: paragraph number change , and more on Convey once definition comes. The third paragraph of section 2 represents another effort to compensate for @@ -2932,6 +3029,32 @@ No substantive changes have been made in sections 15 and 16. % FIXME: more, plus 17 +% FIXME: Section header needed here about choice of law. + +% FIXME: reword into tutorial + +Some have asked us to address the difficulties of internationalization +by including, or permitting the inclusion of, a choice of law +provision. We maintain that this is the wrong approach. Free +software licenses should not contain choice of law clauses, for both +legal and pragmatic reasons. Choice of law clauses are creatures of +contract, but the substantive rights granted by the GPL are defined +under applicable local copyright law. Contractual free software +licenses can operate only to diminish these rights. Choice of law +clauses also raise complex questions of interpretation when works of +software are created by combination and extension. There is also the +real danger that a choice of law clause will specify a jurisdiction +that is hostile to free software principles. + +% FIXME: reword into tutorial, \ref to section 7. + +Our revised version of section 7 makes explicit our view that the +inclusion of a choice of law clause by a licensee is the imposition of +an additional requirement in violation of the GPL. Moreover, if a +program author or copyright holder purports to supplement the GPL with +a choice of law clause, section 7 now permits any licensee to remove +that clause. + %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% \chapter{The Lesser GPL}