@@ -3176,192 +3176,193 @@ the GPL and imposed no restrictions on the code that were not also imposed by
the GPL\@. In practice, the FSF historically supplemented that policy with a structure of
exceptions for certain kinds of combinations.
GPLv3~\S7 implements a more explicit policy on license
compatibility. It formalizes the circumstances under which a licensee may
release a covered work that includes an added part carrying non-GPL terms.
GPLv3~\S7 distinguish between terms that provide additional permissions, and terms that
place additional requirements on the code, relative to the permissions and
requirements established by applying the GPL to the code.
As discussed in the previous section of this tutorial, GPLv3~\S7 first and foremost explicitly allows added parts covered by terms with
additional permissions to be combined with GPL'd code. This codifies the
existing practice of regarding such licensing terms as compatible with the
GPL\@. A downstream user of a combined GPL'd work who modifies such an added
part may remove the additional permissions, in which case the broader
permissions no longer apply to the modified version, and only the terms of
the GPL apply to it.
In its treatment of terms that impose additional requirements, GPLv3\S7
extends the range of licensing terms with which the GPL is compatible. An
added part carrying additional requirements may be combined with GPL'd code,
but only if those requirements belong to an set enumerated in GPLv3\S7. There
are, of course, limits on the acceptable additional requirements, which
ensures that enhanced license compatibility does not
defeat the broader software-freedom-defending terms of the GPL\@. Unlike terms that grant
additional permissions, terms that impose additional requirements cannot be
removed by a downstream user of the combined GPL'd work, because only in the
pathological case\footnote{Theoretically, a user could collect copyright
assignment from all known contributors and then do this, but this would
indeed be the pathological case.} would a user have the right to do so.
% FIXME-LATER: It would be good to have detailed info on each of 7a-f.
% Here's some commented-out text that might be useful for 7a-b
%% Under subsections 7a and 7b, the requirements may include preservation of
%% copyright notices, information about the origins of the code or alterations
%% of the code, and different warranty disclaimers. Under subsection 7c, the
%% requirements may include limitations on the use of names of contributors and
%% on the use of trademarks for publicity purposes. In general, we permit these
%% requirements in added terms because many free software licenses include them
%% and we consider them to be unobjectionable. Because we support trademark fair
%% use, the limitations on the use of trademarks may seek to enforce only what
%% is required by trademark law, and may not prohibit what would constitute fair
%% use.
% FIXME-LATER: Say removing additional restrictions
% FIXME-LATER: This text may be useful later:
%% Some have questioned whether section 7 is needed, and some have suggested
%% that it creates complexity that did not previously exist. We point out to
%% those readers that there is already GPLv2-licensed code that carries
%% additional terms. One of the objectives of section 7 is to rationalize
%% existing practices of program authors and modifiers by setting clear
%% guidelines regarding the removal and addition of such terms. With its
%% carefully limited list of allowed additional requirements, section 7
%% accomplishes additional objectives, permitting the expansion of the base of
%% code available for GPL developers, while also encouraging useful
%% experimentation with requirements we do not include in the GPL itself.
\section{GPLv3~\S8: A Lighter Termination}
GPLv2 provided for automatic termination of the rights of a person who
copied, modified, sublicensed, or distributed a work in violation of the
license. Automatic termination can be too harsh for those who have committed
an inadvertent violation, particularly in cases involving distribution of
large collections of software having numerous copyright holders. A violator
who resumes compliance with GPLv2 technically needs to obtain forgiveness
from all copyright holders, and even contacting them all might be impossible.
GPLv3~\S8 now grants opportunities for provisional and permanent
reinstatement of rights. The termination procedure provides a limited
opportunity to cure license violations. If a licensee has committed a
first-time violation of the GPL with respect to a given copyright holder, but
the licensee cures the violation within 30 days following receipt of notice
of the violation, then any of the licensee's GPL rights that have been
terminated by the copyright holder are ``automatically reinstated''.
Finally, if a licensee violates the GPL, a contributor may terminate any
patent licenses that it granted under GPLv3~\S11, in addition to any
copyright permissions the contributor granted to the licensee.
% FIXME-LATER: write more here, perhaps linking up to enforcement
\section{GPLv3~\S9: Acceptance}
GPLv3~\S9 means what it says: mere receipt or execution of code neither
requires nor signifies contractual acceptance under the GPL. Speaking more
broadly, GPLv3 is intentionally structured as a unilateral grant
of copyright permissions, the basic operation of which exists outside of any
law of contract. Whether and when a contractual relationship is formed
between licensor and licensee under local law do not necessarily matter to
the working of the license.
\section{GPLv3~\S10: Explicit Downstream License}
\label{GPLv3s10}
% FIXME-LATER: this is a punt: need more time to write!
GPLv3~\S10 ensures that everyone downstream receives licenses from all
copyright holders. It really is a generally straightforward section.
% FIXME-LATER: link up this paragraph to above sections.
Note, however, GPLv3 removed the words ``at no charge'' from GPLv2~\S2(b) (in
GPLv3,~\S5(b)) because it contributed to a misconception that the GPL did not
permit charging for distribution of copies. The purpose of the ``at no
charge'' wording was to prevent attempts to collect royalties from third
parties. The removal of these words created the danger that the imposition
of licensing fees would no longer be seen as a license violation. Therefore,
GPLv3~\S10 adds a new explicit prohibition on imposition of licensing fees or
royalties. This section is an appropriate place for such a clause, since it
is a specific consequence of the general requirement that no further
restrictions be imposed on downstream recipients of GPL-covered code.
% FIXME-LATER: This text needs further study before I can conclude it belongs
% in this tutorial:
%% Careful readers of the GPL have suggested that its explicit prohibition
%% against imposition of further restrictions\footnote{GPLv2, section 6; Draft
%% 3, section 10, third paragraph.} has, or ought to have, implications for
%% those who assert patents against other licensees. Draft 2 took some steps to
%% clarify this point in a manner not specific to patents, by describing the
%% imposition of ``a license fee, royalty, or other charge'' for exercising GPL
%% rights as one example of an impermissible further restriction. In Draft 3 we
%% have clarified further that the requirement of non-imposition of further
%% restrictions has specific consequences for litigation accusing GPL-covered
%% programs of infringement. Section 10 now states that ``you may not initiate
%% litigation (including a cross-claim or counterclaim in a lawsuit) alleging
%% that any patent claim is infringed by making, using, selling, offering for
%% sale, or importing the Program (or the contribution of any contributor).''
%% That is to say, a patent holder's licensed permissions to use a work under
%% GPLv3 may be terminated under section 8 if the patent holder files a lawsuit
%% alleging that use of the work, or of any upstream GPLv3-licensed work on
%% which the work is based, infringes a patent.
\section{GPLv3~\S11: Explicit Patent Licensing}
\label{GPLv3s11}
Software patenting is a harmful and unjust policy, and should be abolished;
recent experience makes this all the more evident. Since many countries grant
patents that can apply to and prohibit software packages, in various guises
and to varying degrees, GPLv3 seeks to protect the users of GPL-covered programs
from those patents, while at the same time making it feasible for patent
holders to contribute to and distribute GPL-covered programs as long as they
do not attack the users of those programs.
It is generally understood that GPLv2 implies some limits on a licensee's
power to assert patent claims against the use of GPL-covered works.
However, the patent licensing practices that GPLv2~\S7 (corresponding to
GPLv3~\S12) is designed to prevent is only one of several ways in which
software patents threaten to make free programs non-free and to prevent users
from exercising their rights under the GPL. GPLv3 takes a more comprehensive
approach to combating the danger of patents.
GPLv2~\S7 has seen some success in deterring conduct that would otherwise
result in denial of full downstream enjoyment of GPL rights, and thus it is
preserved in GPLv3~\S12. Experience has shown that more is necessary,
however, to ensure adequate community safety where companies act in concert
to heighten the anticompetitive use of patents that they hold or license.
Therefore, GPLv3 is designed to reduce the patent risks that distort and
threaten the activities of users who make, run, modify and share Free
Software. At the same time, GPLv3 gives favorable consideration to practical
goals such as certainty and administrability for patent holders that
participate in distribution and development of GPL-covered software. GPLv3's
policy requires each such patent holder to provide appropriate levels of
patent assurance to users, according to the nature of the patent holder's
relationship to the program.
\subsection{The Contributor's Explicit Patent License}
Specifically, the ideal might have been for GPLv3 to feature a patent license
grant triggered by all acts of distribution of GPLv3-covered works. The FSF
considered it during the GPLv3 drafting process, but many patent-holding
companies objected to this policy. They have made two objections: (1) the
far-reaching impact of the patent license grant on the patent holder is
disproportionate to the act of merely distributing code without modification
or transformation, and (2) it is unreasonable to expect an owner of vast
patent assets to exercise requisite diligence in reviewing all the
GPL-covered software that it provides to others. Some expressed particular
concern about the consequences of ``inadvertent'' distribution.
The argument that the impact of the patent license grant would be
``disproportionate'', that is to say unfair, is not valid. Since
software patents are weapons that no one should have, and using them for
aggression against free software developers is an egregious act (thus
preventing that act cannot be unfair).
However, the second argument seems valid in a practical sense. A
typical GNU/Linux distribution includes thousands of programs. It would
be quite difficult for a re-distributor with a large patent portfolio to