Restored a definition of "License" (with the intent of disambiguating
from uses of lower-case verb/noun "license").
One notable change is restoring the term "derivative work" (used, as
is well known, in GNU GPLv2, but abandoned in GNU GPLv3), but as a
defined term and with initial capitalization. The scope is intended to
be the same as "work based on the Program" in the GNU GPL and the way
in which I believe the drafters of GNU GPLv2 intended "derivative
work" to be understood. The definition is largely based on the
modify/based-on definition of GNU GPLv3 but greater clarity is
attempted; thus it replaces "Modified Version" of previous
Copyleft.next commits. (Therefore, uses of "Modified Version" in
section 5 have been replaced with "Derivative Work".)
The earliest discussion draft of GNU GPLv3 used "derivative work"
similarly to GNU GPLv2. The later avoidance of that term was a result
of substantial criticism of the GNU GPLv2 definition asserted by US
lawyers, criticism which had begun years before the GNU GPLv3 drafting
process. I believe I understand, today, the main thrust of that
criticism, but I have addressed it here in a way which I believe
fulfills the intent of RMS. In particular, the definition adds an
"avoidance of doubt" clause that makes clear that "Derivative Work"
could well be broader (or even narrower) in scope than "derivative
work" under US law. This was the intended effect of the reformulated
modify/based-on definitions in GNU GPLv3.
Another interesting change is that the "Aggregate" clause at the end
of section 5 (a more complex descendant of the simpler "mere
aggregation" clause of GNU GPLv2) is deleted, and instead a definition
of "Mere Aggregate" is defined and then included as an additional
carveout to the "Derivative Work" definition. (In the GNU GPL,
mere-aggregation/"Aggregate" was always, in a sense, a
for-the-avoidance-of-doubt limit on the definition of
derivative-work/work-based-on-the-Program/modified-version; making
"Mere Aggregate" a definition which then reduces the definitional
scope of "Derivative Work" makes this all clearer.) I have not carried
over what is sometimes called (by me) the "Larry Rosen clause" of the
GNU GPLv3 Aggregate paragraph (as it was a late change in response to
a late provocative interpretive statement by Mr. Rosen), as I do not
believe it adds any clarity to the definition. The feature of the GNU
GPLv3 Aggregate paragraph that is substantively different from the GNU
GPLv2 "mere aggregation" clause is what I believe is an effort to deal
with the possibility of denials of GNU GPL rights through restrictive
compilation licenses. The way this is worded in GNU GPLv3 can be
improved upon and I have tried to do that here in the "Mere Aggregate"
definition.
Another change is a positive definition of "Distribute", preceding the
existing negative definitions.
This commit deletes the words "or other readily accessible means"
following "publicly available network server". In this context, it is
difficult to imagine any practical means more readily accessible than
a public network server.
Added explicit definition of "Licensor", adapted from CC 3.0, though
it isn't used yet. I antiticipate that such a definition may prove
useful in future changes. This commit also effectively reverts an
earlier change which had deleted a clarification that the licensee
("You") can be an individual or an organization ("entity" is used
now).
The historical necessity of the deleted clarification is
recogized. However, today this issue seems to be sufficiently well
understood and is explained quite well in the FSF's GNU licenses FAQ:
http://www.gnu.org/licenses/gpl-faq.html#CanIUseGPLToolsForNF
There is no need for it to be in the license; it states an obvious truism.
Since "any price" includes a price of zero, it is unnecessary to
explicitly state "no price". Moreover, the historical concern here
related to residual doubts about commercialization of free software;
thus if there is anything that needs to be said here it is that there
is no upper bound on charges for distribution.
In GNU GPLv3, the only explicit statement that granted licenses are
royalty-free occurs by way of an example given to the "no further
restrictions" rule. This is unsatisfactory in appearing not to bind
the original licensor (cf. the way the patent license grant of GNU
GPLv3 is formulated).
GNU GPLv2 indicates that distributed works based on the Program must
be licensed "at no charge to all third parties", and the warranty
disclaimer is prepended with a statement that "the Program is licensed
free of charge". These features were removed from GNU GPLv3, I believe
primarily to remove any doubt about the right to charge any fee for
distribution of copies (see also the second paragraph of GNU GPLv3
section 4).
In this commit, we delete the "no further restrictions" example and
add language to the "basic permissions" section clarifying that all
license are granted royalty-free.
The deleted provision, introduced in GNU GPLv3, states:
Corresponding Source distributed in accord with this section must be
in a format that is publicly documented (and with an implementation
available to the public as Source Code), and must require no special
password or key for unpacking, reading or copying.
This is unnecessary to state, since Corresponding Source distributed
in some other format would not meet the underlying definition of
Source Code. In the interest of advancing textual economy, it is
deleted in this commit.
GNU GPLv3 added a Corresponding Source compliance option focused
specifically on BitTorrent (though it was drafted generally as "peer
to peer transmission"), in response to a stet comment. This was much
noted as an important advance of GNU GPLv3 over GNU GPLv2.
But in reality, the value of this addition is rather
questionable. Compliance using BitTorrent or the like under GNU GPLv3
proceeds as it has done under GNU GPLv2; it is probably typically not
strictly in compliance with the clause set forth in GNU GPLv3. Thus,
viewed legalistically, we had noncompliance before and we have
noncompliance now, and in both cases no licensors bother to enforce
against this course of conduct. So, in the interest of advancing
textual economy, we should delete this clause.
Clarified clause stating distribution does not include pure network
services interaction.
Migrated 'contractor' clause of GNU GPLv3 section 2 (which had been
requested particularly by counsel for securities/financial services
industry interests during GNU GPLv3 drafting) to section 0 so that it
becomes a second explicit variety of non-distribution. A substantive
change was made here: the GNU GPLv3 version suggests that the
contractee-conveyor must comply fully with normal GNU GPLv3 conveying
requirements as to the portions of the work given to the
contractor/outsourced data center that are not copyrighted by the
conveyor.
This seems to me to be unlikely to be complied with in practice, and
perhaps relatively burdensome. Since, in a sense, the rationale for
the GNU GPLv3 provision in its section 2 was (roughly) that
contractors and outsourced data centers are reasonably treated like
employees, perhaps it should be easier for licensees to transfer works
to contractors and data centers without worrying about ordinary
distribution-triggered compliance. The policy issue needs to be
explored further, but for the time being I am proceeding with this
change.
The explicit prohibition on sublicensing is removed. As noted in GNU
GPLv3, the automatic licensing provision would seem to make
sublicensing superfluous. German lawyers Till Jaeger and Axel Metzger
argued during GNU GPLv3 drafting that GNU GPLv2 was undesirably
unclear in seeming to allow sublicensing by negative implication but
having the automatic licensing feature that would seem to be designed
to preclude sublicensing.
I recall being quite impressed with the force of this formal analysis
in 2006, but I now see it as one or two extra lines of text in the GNU
GPL that don't have to be there. GNU GPLv2 has hardly suffered in any
practical way as a result of this formal puzzle concerning
sublicensing. Even if sublicensing seems inconsistent with automatic
licensing, what is the real harm if some GNU GPL transaction is
structured as an act of sublicensing? An explicit prohibition on
sublicensing seems to unnecessarily intensify a tone of
restrictiveness.
The first two paragraphs of the Additional Terms section, discussing
additional permissions, are deleted in this commit in the interests of
advancing textual economy. Everything here seems to be an obvious
consequence of copyright law. GNU GPLv2 has not suffered through
absence of such an explicit framework; indeed the deleted material is
largely an effort to codify FSF practice and interpretation under GNU
GPLv2.
In addition to the stylistic changes, the "Standard Interface"
definition is removed as it is no longer used, and the modify/Modified
Version definition is made clearer. Sections 0 and 1 are both
definitional and so they have been consolidated into one section.
This commit introduces two changes. First, the definition of
"Appropriate Legal Notices" in section 0 is deleted. To my
recollection this factored-out definition originated with the
introduction of limited badgeware compatibility in late drafts of GNU
GPLv3. It is made unnecessary by the second change in this commit.
The predecessor GNU GPL versions of 5d were somewhat controversial in
some quarters because of their tension with the fundamental right of
modification. The rewording here attempts to recast it in way that is
intended to minimize the burdens on licensees who modify and
distribute. (There is a separate policy issue, which I do not consider
here, regarding whether any such requirement ought to be in the
license.) Particularly new here is the sentence calling for
construction in favor of the licensee's right to modify.
A subtler change here places further barriers to would-be badgeware
licensors. Replacing the ALN definition in section 0, a limited
category of "Legal Notices" is defined, which includes *textual*
author attributions. Thus requirements to preserve a graphical
"Powered by" logo (or worse) can no longer be grounded in the 5d
clause.
In section 0, "modified version" [of the Program] is defined
synonymously to "work based on the Program". The latter term was used
in GNU GPLv2 (though, curiously, it was defined more broadly). At
least in Copyleft.next at this point, the only place where "based on"
is used is at the beginning of section 5. I have replaced it with the
shorter "Modified Version", used conventional initial-capitalization
for "Modified Version", and, for clarity, have used "Modified Version"
where this section goes on to speak of the modified version as "the
work". Some other minor clarifications were made.
This commit also simplifies and clarifies the 5d "Appropriate Legal
Notices" clause.
Finally, the defined term "aggregate" in the last paragraph gets
conventional initial-capitalization.
The paragraph in question began its life in public GNU GPLv3 drafts as
a simple but broad "downstream shielding" requirement which had
implications for the scope of liberty-or-death. It was narrowed
substantially as a result of discussions with vendors during the GNU
GPLv3 drafting process.
The provision seems to state a kind of safe harbor in relation to
liberty-or-death. Therefore, it is sensible to include it as a
qualification to that section. If there is some further policy goal
worth exploring here it should be done through clarification of the
scope of liberty-or-death.
The deleted paragraph is a relatively complex and narrowly drawn
provision which was introduced in GNU GPLv3 in response to the
Novell-Microsoft deal of late 2006. Oversimplifying a bit here, the
intent of the provision was to prospectively make it a violation of
the license to distribute pursuant to a deal with perceived similar
characteristics (for example, the granting of limited patent
nonasserts by a non-NPE third party to customers of the
distributor). The provision was necessarily drafted with only limited
knowledge of the details of the deal to which it was a response. The
provision was drafted with intentional narrowness out of concern that
it might reach varieties of vendor behavior unrelated to the issues
that motivated it.
This one calls for a return to the drawing board. One must first
soberly ascertain the proper scope of liberty-or-death to determine
whether this provision is even necessary or desirable even at a highly
general level. The narrowness of the provision makes its nonpolitical
value highly dubious. Moreover, if there is some flaw in
liberty-or-death, the clear solution is to amend liberty-or-death
directly.
GNU GPLv3 section 11 (minus the MS coupon paragraph which was
previously deleted in GPL.next) is concerned with two distinct topics,
patent licenses granted explicitly or by implication from upstream
participants, and third-party patent licenses/covenants granted to
distributors or their customers. GNU GPLv3 sec. 11 has occasionally
been criticized by lawyers for starting out with the grant of a patent
license and then proceeding to define "patent license" for purposes of
subsequent paragraphs.
The main motivation of splitting the section up is to make it easier
to reason about and make changes to each part.
This change follows the deletion of GNU GPLv3 7f and achieves
compatibility of the Apache License 2.0 with GPL.next through an
explicit clarification to the "no further restrictions" clause.
