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Re: GPLv3 comedy unfolding -- "a truly global copyright license"

From: Alexander Terekhov
Subject: Re: GPLv3 comedy unfolding -- "a truly global copyright license"
Date: Thu, 03 Aug 2006 14:05:05 +0200

Hey you bunch of narrow-minded fools with US law degrees, "We wish to make 
clear, particularly to our critics in the US legal profession, that, with 
the special exception of the second paragraph of section 3,2 any remaining 
similarities in the words of the license to any of the terminology of the 
US copyright statute are incidental to the use of ordinary, factually-based 
wording to describe basic concepts of using, modifying, copying, and 
sharing software."


Now let's enjoy remarkable piece of amusing nonsense ("Works Based On Other 
Works" part is my favorite) representing GNU wisdom.

Opinion on Denationalization of Terminology


Like most free software licenses, GPLv2 was drafted with specific attention
to details of United States law. In the case of the GPL, at least, this simply
reflected the historical and geographic origins of the free software movement.

International use of GPLv2 has revealed variations in copyright laws
that lead to differences among countries in the effective requirements and
consequences of the license. We aim in GPLv3 to minimize these differences,
without weakening the GPL as a protection for users’ freedom. Moreover,
we wish to avoid application of the vocabulary of one legal system to the
rest of the world.

Draft 1 took important steps towards internationalization of the GPL,
but it continued to use some terms that were taken from US law. In response
to comments on Draft 1, we have revised the license draft to isolate further
the ways in which the GPL depends on details of national copyright law.

Propagation and Conveying

Practical experience with GPLv2 revealed the awkwardness of using the
term “distribution” in a license intended for global use. In some, but not
all, legal systems, distribution is a copyright law term of art. Distribution is
also well-established as a non-legal term describing commercial transfers of
software. 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.

It was with such concerns in mind that we defined the term “propagate”
in Draft 1. 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 having limited
access to legal counsel. Draft 1 provided specific examples of propagation
that included distribution but did not include any non-US copyright law
terms. In section 2, propagation having the effect of enabling other parties
to make or receive copies was permitted as “distribution” under the conditions
of sections 4–6 (corresponding to the key sections 1–3 of GPLv2).
Sections 4–6, as well as other sections of the draft, continued to use the term

Our intention in preserving the use of “distribution” was to minimize
the textual differences between GPLv2 and GPLv3. This meant, however,
that our efforts to generalize and denationalize concepts such as copying
and distribution went only halfway. Some readers found this confusing. For
example, references to distribution in sections 4–6 could be read to include
activities other than propagation to others, and the meaning of distribution
in other sections of the license document was unclear.

In Draft 2 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.

Works Based On Other Works

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.

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 con-
cepts of derivative and collective works, two terms of art that they assume,
questionably, to be neatly disjoint under US law.

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.

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.1 1 We have also removed the paragraph in section 
5 that makes reference to “derivative or collective works based on the 

Rejection of Choice of Law Clauses

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.

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.


Draft 2 of GPLv3 presents a truly global copyright license, even though the
effects of the GPL can never be perfectly uniform from country to country.
We have substantially advanced the internationalization of the license by
removing US localisms. We wish to make clear, particularly to our critics
in the US legal profession, that, with the special exception of the second
paragraph of section 3,2 any remaining similarities in the words of the license
to any of the terminology of the US copyright statute are incidental to the
use of ordinary, factually-based wording to describe basic concepts of using,
modifying, copying, and sharing software.

2 See GPLv3 Second Discussion Draft Rationale, n. 39.


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