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Re: More GPL questions

From: Alexander Terekhov
Subject: Re: More GPL questions
Date: Tue, 17 Oct 2006 12:39:12 +0200

David Kastrup wrote:
> <URL:>

You should read his later work as well.

In plain language:


Rosen is too polite to call for replacing the FSF licenses with his own,
but in his Chapter 6: Reciprocity and the GPL, he makes many
observations, including:

1) The FSF’s refusal of outside improvements to the GPL and its
denunciation of them as "restrictions" handicaps the GPL in the courts:
"Their avoidance of restrictions has delayed the adoption of new and
useful licensing concepts for open source software." (p. 106). These
"restrictions" are actually items such as clear grants of patent
licenses and the like.

2) The FSF language about software "containing" GPL’d software tries to
turn collective works into derivative works, and is contrary to the
usual practice of copyright law (p. 114).

3) Further instances of unclear language that vary from simply untrue
(the GPL mandate that "you must give the recipients all the rights that
you have," says Rosen, "is unnecessarily frightening and is not true"--
because you still have the right to give the work to others, p. 111) to
inept (the provisions for linking to LGPL’d code is "an impenetrable
maze of technobabble," p. 124).

4) The FSF’s ideas about linking to GPL’d software (see 2) and 3) above)
conflict with copyright law and practice to the extent that there is no
need for the LGPL because a user who does not modify a GPL’d work of
software, but simply incorporates it into a collective work and
distributes it, is well within copyright law. This means, simply, that
one can link to GPL’d software and distribute the collective work. If
the software has a use, simply using it is permitted under copyright

The problems resulting from the FSF’s unwillingness or inability to
bring their GPL/LGPL licensing into conformity with copyright law, and
with modern software licensing practice under that law, will lead it
into eventual disrepute. So far the FSF has been scrupulous about
avoiding court, relying on quiet persuasion that moves over to loud
public indignation and pressure on the infringer from many quarters,
and it has been successful so far. But its reputation for ferocious
fanaticism frightens away not only those who would abuse the GPL, but
also those who can’t come to terms with the FSF’s interpretation of
its licenses. By holding the opinion that a collective work is
actually a derivative work (and therefore violates the GPL) the FSF
invites gradual and then wholesale violations of the GPL, and
increasing difficulty in determining which cases will be defensible
and which will have to be ignored in order not to expose the FSF’s
interpretations to adjudication.

In cases in which the FSF is not the copyright holder, and therefore
lacks standing in court, the actual copyright holders will have to
reach the same decision about bringing an infringement suit. The
worst case would be that of distributing binary-only software linked
to unmodified GPL’d software. A good prediction of the outcome would
be that the GPL will be found invalid in some way. First, for its
ambiguities: courts decide in favor of licensees if the licensor has
not written a clear license. Second, for its clear misinterpretations
of copyright law. Rosen believes that the courts will favor the GPL’s
restrictions on derivative works, but not on collective works. Beyond
this fairly clear risk is any additional court finding concerning the
GPL, for no one ever really knows what a court will decide.

In any case the GPL will have been exposed as a paper tiger, the
result of a too-wide stretching to achieve the death of proprietary
software. No one in the Open Source world wants a public and legal
repudiation of an archetypal Open Source license. The sensible thing
would be for the FSF to adopt Rosen’s Open Source License, and for
everyone who has put out software under the GPL to relicense it under
the OSL.



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