@@ -339,46 +339,46 @@ software (For details of this in the USA, see
\href{http://www.law.cornell.edu/uscode/text/17}{Title 17} of the
\textit{United States Code}).\footnote{Copyright law in general also governs
``public performance'' of copyrighted works. There is no generally agreed
definition for public performance of software and both GPLv2 and GPLv3 do
not restrict public performance.} By law (in the USA and in most other
jurisdictions), the copyright holder (most typically, the author) of the work controls
how others may copy, modify and/or distribute the work. For proprietary
software, these controls are used to prohibit these activities. In addition,
proprietary software distributors further impede modification in a practical
sense by distributing only binary code and keeping the source code of the
software secret.
Copyright is not a natural state, it is a legal construction. In the US, the
Copyright is not a natural state, it is a legal construction. In the USA, the
Constitution permits, but does not require, the creation of copyright law as
federal legislation. Software, since it is ``an original works of authorship
fixed in any tangible medium of expression ... from which they can be
perceived, reproduced, or otherwise communicated, either directly or with the
aid of a machine or device'' (as stated in
\href{http://www.law.cornell.edu/uscode/text/17/102}{17 USC \S~102}), is thus
covered by the statute, and is copyrighted by default.
However, software, in its natural state without copyright, is Free
Software. In an imaginary world with no copyright, the rules would be
different. In this world, when you received a copy of a program's source
code, there would be no default legal system to restrict you from sharing it
with others, making modifications, or redistributing those modified
versions.\footnote{Note that this is again an oversimplification; the
complexities with this argument are discussed in
Section~\ref{software-and-non-copyright}.}
Software in the real world is copyrighted by default and is automatically
covered by that legal system. However, it is possible to move software out
of the domain of the copyright system. A copyright holder can often
\defn{disclaim} their copyright (for example, under US copyright law
\defn{disclaim} their copyright (for example, under USA copyright law
it is possible for a copyright holder to engage in conduct resulting
in abandonment of copyright). If copyright is disclaimed, the software is
effectively no longer restricted by copyright law. Software not restricted by copyright is in the
``public domain.''
\subsection{Public Domain Software}
Theoretically, an author can create public domain software by disclaiming all
copyright interest on the work. In the USA and other countries that have
signed the Berne convention on copyright, software is copyrighted
automatically by the author when she ``fixes the software into a tangible
medium.'' In the software world, this usually means typing the source code
@@ -2240,45 +2240,45 @@ 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
term of art, ``derivative work,'' peculiar to USA 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
scope and breadth from the USA 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
USA-specific legal terminology in the ``work based on the Program''
definition has come not primarily from readers outside the USA, 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,
USA 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.
to be neatly disjoint under USA 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
@@ -2330,50 +2330,50 @@ 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.
to the generalized notion of distribution that exists under USA 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
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
public'' in jurisdictions outside the USA 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
variation in national copyright law. We distinguish between propagation that
enables parties other than the licensee to make or receive copies, and other
forms of propagation. As noted above, the meaning of ``distribution'' under
copyright law varies from country to country, including with respect to
whether making copies available to other parties (such as related public or