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Re: GPLv3 comedy unfolding -- "User Products"

From: Alexander Terekhov
Subject: Re: GPLv3 comedy unfolding -- "User Products"
Date: Wed, 28 Mar 2007 16:54:02 +0200

Standing ovations to Eben! :-)


User Products

In our earlier drafts, the requirement to provide encryption keys 
applied to all acts of conveying object code, as this requirement was 
part of the general definition of Corresponding Source. Section 6 of 
Draft 3 now limits the applicability of the technical restrictions 
provisions to object code conveyed in, with, or specifically for use 
in a defined class of “User Products.”

In our discussions with companies and governments that use specialized
or enterprise-level computer facilities, we found that sometimes these 
organizations actually want their systems not to be under their own 

Rather than agreeing to this as a concession, or bowing to pressure, 
they ask for this as a preference. It is not clear that we need to 
interfere, and the main problem lies elsewhere.

While imposing technical barriers to modification is wrong regardless 
of circumstances, the areas where restricted devices are of the 
greatest practical concern today fall within the User Product 
definition. Most, if not all, technically-restricted devices running 
GPL-covered programs are consumer electronics devices, and we expect 
that to remain true in the near future.

Moreover, the disparity in clout between the manufacturers and these 
users makes it difficult for the users to reject technical restrictions 
through their weak and unorganized market power. Even if limited to 
User Products, as defined in Draft 3, the provision still does the job 
that needs to be done.

Therefore we have decided to limit the technical restrictions 
provisions to User Products in this draft.

The core of the User Product definition is a subdefinition of 
“consumer product” taken verbatim from the Magnuson-Moss Warranty Act, 
a federal consumer protection law in the United States: “any tangible 
personal property which is normally used for personal, family, or 
household purposes.”

The United States has had three decades of experience of liberal 
judicial and administrative interpretation of this definition in a 
manner favorable to consumer rights. We mean for this body of 
interpretation to guide interpretation of the consumer product 
subdefinition in section 6, which will provide a degree of legal 
certainty advantageous to device manufacturers and downstream 
licensees alike. Our incorporation of such legal interpretation
is in no way intended to work a general choice of United States law 
for GPLv3 as a whole. The paragraph in section 6 defining “User 
Product” and “consumer product” contains an explicit statement to 
this effect, bracketed for discussion. We will decide whether to 
retain this statement in the license text after gathering comment 
on it.

One well-established interpretive principle under Magnuson-Moss is 
that ambiguities are resolved in favor of coverage. That is, in cases 
where it is not clear whether a product falls under the definition of 
consumer product, the product will be treated as a consumer product. 
Moreover, for a given product, “normally used” is understood to refer 
to the typical use of that type of product, rather than a particular 
use by a particular buyer. Products that are commonly used for 
personal as well as commercial purposes are consumer products, even 
if the person invoking rights is a commercial entity intending to use 
the product for commercial purposes. Even a small amount of “normal” 
personal use is enough to cause an entire product line to be treated 
as a consumer product under Magnuson-Moss.

We do not rely solely on the definition of consumer product, however,
because in the area of components of dwellings we consider the settled 
interpretation under Magnuson-Moss underinclusive. Depending on how 
such components are manufactured or sold, they may or may not be 
considered Magnuson-Moss consumer products. Therefore, we define User 
Products as a superset of consumer products that also includes 
“anything  designed or sold for incorporation into a dwelling.”

Although the User Products rule of Draft 3 reflects a special concern 
for individual purchasers of devices, we wrote the rule to cover a 
category of products, rather than categorizing users. Discrimination 
against organizational users has no place in a free software license. 
Moreover, a rule that applied to individual use, rather than to use of 
products normally used by individuals, would have too narrow an effect. 
Because of its incorporation of the liberal Magnuson-Moss interpretation 
of “consumer product,” the User Products rule benefits not only 
individual purchasers of User Products but also all organizational 
purchasers of those same kinds of products, regardless of their 
intended use of the products.

We considered including medical devices for implantation in the human
body in the User Product definition. We decided against this, however,
because there may be legitimate health and safety regulations 
concerning inexpert and reckless modifications of medical devices. In 
any case, it will probably be necessary to convince medical device 
regulators to allow usermodifiable implantable medical devices. We plan 
to begin a campaign to address this issue.




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