lawyers.  Law firms have enough incentive to produce great briefs even

though the stuff they build can be taken and copied by anyone else.  The

lawyer is a craftsman; his or her product is public.  Yet the crafting is

not charity. Lawyers get paid; the public doesn't demand such work

without price.  Instead this economy flourishes, with later work added to

the earlier.

We could imagine a legal practice that was different --- briefs and

arguments that were kept secret; rulings that announced a result but not

the reasoning. Laws that were kept by the police but published to no one

else. Regulation that operated without explaining its rule.

We could imagine this society, but we could not imagine calling it

``free.''  Whether or not the incentives in such a society would be better

or more efficiently allocated, such a society could not be known as free.

The ideals of freedom, of life within a free society, demand more than

efficient application.  Instead, openness and transparency are the

constraints within which a legal system gets built, not options to be

added if convenient to the leaders.  Life governed by software code should

be no less.

Code writing is not litigation.  It is better, richer, more

productive.  But the law is an obvious instance of how creativity and

incentives do not depend upon perfect control over the products

created.  Like jazz, or novels, or architecture, the law gets built

upon the work that went before. This adding and changing is what

creativity always is.  And a free society is one that assures that its

most important resources remain free in just this sense.\footnote{This

quotation is Copyright \copyright{} 2002, Lawrence Lessig. It is

licensed under the terms of

\href{http://creativecommons.org/licenses/by/1.0/}{the ``Attribution

License'' version 1.0} or any later version as published by Creative

Commons.}

\end{quotation}

In essence, lawyers are paid to service the shared commons of legal

infrastructure.  Few citizens defend themselves in court or write their

own briefs (even though they are legally permitted to do so) because

everyone would prefer to have an expert do that job.

The Free Software economy is a market ripe for experts.  It

functions similarly to other well established professional fields like the

law. The GPL, in turn, serves as the legal scaffolding that permits the

creation of this vibrant commercial and noncommercial Free Software

economy.

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

\chapter{A Tale of Two Copyleft Licenses}

While determining the proper methodology and criteria to yield an accurate

count remains difficult, the GPL is generally considered one of the most

widely used Free Software licenses.  For most of its history --- for 16 years

from June 1991 to June 2007 --- there was really only one version of the GPL,

version 2.

However, the GPL had both earlier versions before version 2, and, more well

known, a revision to version 3. 

\section{Historical Motivations for the General Public License}

The earliest license to grant software freedom was likely the Berkeley

Software Distribution (``BSD'') license.  This license is typical of what are

often called lax, highly permissive licenses.  Not unlike software in the

public domain, these non-copyleft licenses (usually) grant software freedom

to users, but they do not go to any effort to uphold that software freedom

for users.  The so-called ``downstream'' (those who receive the software and

then build new things based on that software) can restrict the software and

distribute further.

The GNU's Not Unix (``GNU'') project, which Richard M.~Stallman (``RMS'')

founded in 1984 to make a complete Unix-compatible operating system

implementation that assured software freedom for all.  However, RMS saw that

using a license that gave but did not assure software freedom would be

counter to the goals of the GNU project.  RMS invented ``copyleft'' as an

answer to that problem, and began using various copyleft licenses for the

early GNU project programs\footnote{RMS writes more fully about this topic in

  his essay entitled simply

  \href{http://www.gnu.org/gnu/thegnuproject.html}{\textit{The GNU Project}}.

    For those who want to hear the story in his own voice,

    \href{http://audio-video.gnu.org/audio/}{speech recordings} of his talk,

    \textit{The Free Software Movement and the GNU/Linux Operating System}

    are also widely available}.

\section{Proto-GPLs And Their Impact}

The earliest copyleft licenses were specific to various GNU programs.  For

example, \href{http://www.free-soft.org/gpl_history/emacs_gpl.html}{The Emacs

  General Public License} was likely the first copyleft license ever

published.  Interesting to note that even this earliest copyleft license

contains a version of the well-known GPL copyleft clause:

\begin{quotation}

You may modify your copy or copies of GNU Emacs \ldots provided that you also

\ldots cause the whole of any work that you distribute or publish, that in

whole or in part contains or is a derivative of GNU Emacs or any part

thereof, to be licensed at no charge to all third parties on terms identical

systems what GPLv2~\S6 says for copyright.  If there exists any reason that a

distributor knows of that would prohibit later licensees from exercising

their full rights under GPL, then distribution is prohibited.

Originally, this was designed as the title of this section suggests --- as

a last ditch effort to make sure that freedom was upheld.  However, in

modern times, it has come to give much more.  Now that the body of GPL'd

software is so large, patent holders who would want to be distributors of

GPL'd software have a tough choice.  They must choose between avoiding

distribution of GPL'd software that exercises the teachings of their

patents, or grant a royalty-free, irrevocable, non-exclusive license to

those patents.  Many companies have chosen the latter.

Thus, GPLv2~\S7 rarely gives software death by stopping its distribution.

Instead, it is inspiring patent holders to share their patents in the same

freedom-defending way that they share their copyrighted works.

\section{GPLv2~\S8: Excluding Problematic Jurisdictions}

\label{GPLv2s8}

GPLv2~\S8 is rarely used by copyright holders.  Its intention is that if a

particular country, say Unfreedonia, grants particular patents or allows

copyrighted interfaces (no country to our knowledge even permits those

yet), that the GPLv2'd software can continue in free and unabated

distribution in the countries where such controls do not exist.

As far as is currently known, GPLv2~\S8 has never been formally used by any

copyright holders.  Some have used GPLv2~\S8 to explain various odd special

topics of distribution, but generally speaking, this section is not

particularly useful and was actually removed in GPLv3.

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

\chapter{Odds, Ends, and Absolutely No Warranty}

GPLv2~\S\S0--7 constitute the freedom-defending terms of the GPLv2.  The remainder

of the GPLv2 handles administrivia and issues concerning warranties and

liability.

\section{GPLv2~\S9: FSF as Stewards of GPL}

\label{GPLv2s9}

FSF reserves the exclusive right to publish future versions of the GPL\@;

GPLv2~\S9 expresses this.  While the stewardship of the copyrights on the body

of GPL'd software around the world is shared among thousands of

individuals and organizations, the license itself needs a single steward.

Forking of the code is often regrettable but basically innocuous.  Forking

of licensing is disastrous.

\section{GPLv2~\S10: Relicensing Permitted}

\label{GPLv2s10}

GPLv2~\S10 reminds the licensee of what is already implied by the nature of

copyright law. Namely, the copyright holder of a particular software

program has the prerogative to grant alternative agreements under separate

copyright licenses.

\section{GPLv2~\S11: No Warranty}

\label{GPLv2s11}

All warranty disclaimer language tends to be shouted in all capital

letters. Apparently, there was once a case where the disclaimer language

of an agreement was negated because it was not ``conspicuous'' to one of

the parties. Therefore, to make such language ``conspicuous,'' people

started placing it in bold or capitalizing the entire text. It now seems

to be voodoo tradition of warranty disclaimer writing.

Some have argued the GPL is unenforceable in some jurisdictions because

its disclaimer of warranties is impermissibly broad. However, GPLv2~\S11

contains a jurisdictional savings provision, which states that it is to be

interpreted only as broadly as allowed by applicable law. Such a

provision ensures that both it, and the entire GPL, is enforceable in any

jurisdiction, regardless of any particular law regarding the

permissibility of certain warranty disclaimers.

Finally, one important point to remember when reading GPLv2~\S11 is that GPLv2~\S1

permits the sale of warranty as an additional service, which GPLv2~\S11 affirms.

\section{GPLv2~\S12: Limitation of Liability}

\label{GPLv2s12}

There are many types of warranties, and in some jurisdictions some of them

cannot be disclaimed. Therefore, usually agreements will have both a

warranty disclaimer and a limitation of liability, as we have in GPLv2~\S12. \S

11 thus gets rid of all implied warranties that can legally be

disavowed. GPLv2~\S12, in turn, limits the liability of the actor for any

warranties that cannot legally be disclaimed in a particular jurisdiction.

Again, some have argued the GPL is unenforceable in some jurisdictions

because its limitation of liability is impermissibly broad. However, \S

12, just like its sister, GPLv2~\S11, contains a jurisdictional savings

provision, which states that it is to be interpreted only as broadly as

allowed by applicable law. As stated above, such a provision ensures that

both GPLv2~\S12, and the entire GPL, is enforceable in any jurisdiction,

regardless of any particular law regarding the permissibility of limiting

liability.