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Re: Battle for Wesnoth relicensing

From: Alexander Terekhov
Subject: Re: Battle for Wesnoth relicensing
Date: Wed, 17 Sep 2008 18:17:52 +0200

Hyman Rosen wrote:
> Tim Smith wrote:
> > The game as a whole would be a collective work that
> > contains many separate works: the game code, the individual works of
> > art, and the individual works of sound.  Distributing them all together
> > would fall under the "mere aggregation" part of GPL.
> I disagree. If a game operates by using many files in an
> integrated presentation, that is not mere aggregation. It
> is a collective work.

Gu-NÜ-speak "mere aggregation" means collective work or noncopyrightable
aggregation. Both fall under "mere aggregation". Only derivative works
don't fall under "mere aggregation".

To wit (think of an OS like say Gu-NÜ-slash-Linux which "operates by
using many files in an integrated presentation"):

The Software is a modular operating system comprised of numerous
components that may be accompanied by separate license terms.  The
Software is a collective work of Novell; although Novell does not own
the copyright to every component of the Software, Novell owns the
collective work copyright for the Software. 


This agreement governs the use of the Software and any updates to the
Software, regardless of the delivery mechanism. The Software is a
collective work under U.S. Copyright Law. 


GPL Terminology and Interpretation

a) “Works based on the Program”

The first operative Section of the GPL (Section 0) reads as follows:

This License applies to any program or other work which contains a
notice placed by the copyright holder saying it may be distributed under
the terms of this General Public License. The ‘Program,’ below, refers
to any such program or work, and a ‘work based on the Program’ means
either the Program or any derivative work under copyright law: that is
to say, a work containing the Program or a portion of it, either
verbatim or with modifications and/or translated into another language.
(Hereinafter, translation is included without limitation in the term
‘modification.’) Each licensee is addressed as ‘you.’

Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope. The act of running
the Program is not restricted, and the output from the Program is
covered only if its contents constitute a work based on the Program
(independent of having been made by running the Program). Whether that
is true depends on what the Program does.

As is common in commercial contracting practice, the first Section of
the GPL contains a number of definition and specifications that apply to
the document as a whole (e.g., the first sentence and the first ten
words of the second sentence define the meaning of the capitalized term
“Program”). Less common, however, are the explanatory notes that the GPL
drafters interwove with the legally binding definitions (e.g., the last
sentence acknowledges that the conditions in the preceding half-sentence
may not always be met in practice). The cause for this anomaly seems to
lie in the genesis of the document: it was written by programmers for
programmers. In order to make the document useful for non-lawyers (and
projects without a budget for legal advice), and to establish the GPL as
a standard, the GPL drafters tried to draft it as user-friendly and
accessible to programmers as possible.

Along these lines, the second sentence of Section 0 defines “works based
on the Program” as the Program itself or “any derivative work under
copyright law” followed by a (not entirely accurate) interpretive
explanation regarding what the term “derivative works” means under
copyright law. This explanation, introduced with “that is to say,” gives
an indication of what the GPL drafters thought, hoped or may argue in a
dispute, is the meaning of the term “derivative works.” Section 2 of the
GPL contains additional explanations and declarations of intent, which
even include “collective works,” i.e., a term defined by the Copyright
Act in contrast to the term “derivative work.”250 In order to resolve
these textinternal contradictions, it would seem appropriate to rely on
the “operative” portion of the definition in Section 0 (which contains
the reference to the Copyright Act) and treat the “explanatory notes” as
statements of opinion that have been added for convenience purposes
only.251 Accordingly, the GPL would be interpreted to define “work based
on the Program” to mean “derivative work as defined by the Copyright

b) Derived Works

The first sentence of Section 2 of the GPL permits modifications to the
GPLed program in reference to the defined term “work based on the
Program.” The following sentences of Section 2 contain a number of
license conditions and explanations and use a number of other terms to
describe the result of modifications besides “work based on the
Program,” including modified files,253 modified program,254 and modified
work.255 The critical Subsection (b) refers to “any work . . . that in
whole or in part contains or is derived from the Program or any part

Taken out of context, each of these terms seems to go well beyond the
statutory definition of derivative works in the Copyright Act, because
the statutory definition is not satisfied by every modification or any
work that contains any part of another work, or that is derived from any
part of another work. As discussed, under the Copyright Act, a
combination of code with a GPLed program constitutes a derivative work
of the GPLed program only if the combination (i) is sufficiently
permanent, (ii) contains significant and creative portions of the GPLed
program, (iii) is creative in its own right, and (iv) involves
significant and creative internal changes to the GPLed program.256

In context, however, it appears that the drafters of the GPL randomly
chose substitutes to the somewhat awkward term “work based on the
Program” and used the substitute terms synonymously to improve the
sentence flow and readability. This impression is confirmed throughout
the document, which also uses other substitutes, including the
“derivative or collective works based on the Program”257 and “derivative

Some of the explanations throughout the GPL as well as the Free Software
Foundation’s FAQ259 and “Lesser General Public License”260 imply that
the drafters of the GPL intended to cover software combinations that
would not qualify as derivative works under the Copyright Act according
to the test developed in this Article.261 This is primarily evidence of
a difference of opinion in the application of copyright law––and does
not have to mean that the condition in Section 2(b) of the GPL covers
more than derivative works as defined by the Copyright Act. Yet,
uncertainties remain given the fact that the “explanations” appear
within the license text.

c) Rules of Contract Interpretation

Given the prevailing controversies and uncertainties regarding the exact
scope of Section 2(b) of the GPL, it seems worth exploring whether
presumptive rules of contract interpretation would favor one
interpretation over another. In this context it is important to note
that quite different rules could apply depending on the context of a
particular licensing relationship. The GPL contains neither a
contractual choice of law nor a forum selection clause. Under statutory
and common law conflicts of law principles, which vary from jurisdiction
to jurisdiction, the governing law of a licensing relationship subject
to the GPL will be determined by the residency of the licensor and
licensee, and various other factors. Thus, in practice, there is not one
GPL that applies to all free software globally. Instead, thousands of
different versions provide for slightly different rights and obligations
of the licensing parties based on peculiarities of the governing
contract law.262

Nevertheless, two principles of contract interpretation are likely to
apply in most jurisdictions in one form or another: Courts try to (i)
determine the parties’ intent and (ii) interpret ambiguous clauses
against the party who caused the ambiguity .

(i) Parties’ Intent

Courts typically try to determine the intent of the contracting parties
as objectively evident to each other at the time of contract
formation.263 Where the contract language is clear and unambiguous,
courts will usually not look to extrinsic evidence of intent.264 Given
the uncertainties around Section 2(b) of the GPL, however, it seems
likely that courts would feel tempted to look beyond the four corners of
the document. Even though the GPL emphasizes that it constitutes a
license as opposed to a contract,265 courts would likely apply contract
interpretation rules and try to determine the intent of the copyright
owner who selected the GPL and the licensee who selected the program. In
many cases, courts will probably find that neither party really had a
choice––the GPL came to apply because a developer of a previous program
version had opted for the GPL. Where the Free Software Foundation itself
is involved as a party, it may be appropriate to take the various
examples, explanations and programmatic and ideological statements on
its website into consideration. Where the Free Software Foundation is
not involved, however, it will often be difficult to confirm that
parties to a dispute were familiar with these materials at the time the
licensing relationship was formed.

(ii) Interpretation against the Drafter

Another common principle of contract interpretation is that in case of
uncertainties, courts should interpret the contract against the party
who caused the uncertainty to exist.266 This could help licensees in
cases against the Free Software Foundation. But in cases where neither
party has selected the GPL to apply for a particular modified program,
it is not clear that either party is to blame for the GPL’s

d) Summary

The GPL permits end-users to combine software and execute software in
combination without any restrictions, even if the combinations
constitute derivative works of the GPLed programs. As a consequence,
contrary to the views expressed by the Free Software Foundation,
distributors can separately distribute add-on products intended for
combination with GPLed code without fear of incurring contributory
liability. Thus, the distribution of add-ons to computer games discussed
in Section IV.3 of this Article should be unproblematic in the GPL
context, since the suppliers of the add-on products do not also sell the
actual games.

The GPL strictly prohibits the distribution of program combinations that
qualify as “derived works” of GPLed programs, unless the entire
combination can be subjected to the license terms of the GPL. This has
two serious consequences for licensees: First, they are prohibited from
distributing GPLed programs in combination with proprietary third party
programs whose copyright owners do not agree to the GPL terms. Second,
if licensees create “derived works” of GPLed programs, they cannot
commercialize such “derived works” through proprietary license models as
contemplated by the Copyright Act.

Despite remaining uncertainties, the context of the GPL favors an
interpretation of the term “derived work” to mean a “derivative work as
defined by the Copyright Act.” Consequently, the combinations discussed
in Section IV.2 and IV.4 should also be permissible under the GPL,
because they do not involve a creation of derivative works. However, the
language of the GPL also allows broader interpretations and its drafters
take the position––in documents that do not seem determinative for
contract interpretation purposes––that dynamically linked programs fall
under Section 2(b) if distributed in combination with GPLed code.


Copyright Misuse

By imposing GPL § 2(b) on licensees, copyright owners try to magnify
their rights beyond those sanctioned by the Copyright Act in two
different ways. First, Section 103 of the Copyright Act allocates
ownership rights to authorized derivative works to the author to
incentivize further investment in additional creativity.274 In contrast,
Section 2(b) of the GPL, requires creators of derivative works to
forfeit their exclusion rights and any chance to generate licensing
revenue.275 Second, if the term “derived work” were found to encompass
more than “derivative works” and included, for example, compilations and
other forms of software combinations, Section 2(b) of the GPL would seek
to prohibit activities that Section 106 of the Copyright has not
reserved for copyright owners and thus exponentially increase the impact
caused by the first copyright magnifying mechanism.276

Given the fact that copyright misuse is an equitable concept under U.S.
law, it is difficult to predict if and how a court would apply this
doctrine in the context of the GPL. On one hand, the non-profit status
and idealistic goals pursued by the proponents and original adopters of
the GPL may sway courts in favor of the GPL. On the other hand, the
“copyleft” policy manifested in the GPL seems a more direct attack on
the delicate balance between access and protection in the Copyright
Act277 than any other licensing practice that has so far caused courts
to find copyright misuse.278 In fact, the intended objective behind
Section 2(b) of the GPL is to eliminate the effects of copyright
protection for computer programs and generally replace it by the rules
of the GPL.279 This flies in the face of the many decisions by U.S.
courts that found it necessary to protect economic interests of software
copyright owners who pursued proprietary licensing models.280 Also, more
and more companies use the GPL for purposes other than idealism. If
courts enforce clauses like Section 2(b) of the GPL, they would probably
also have to accept it if proprietary software companies start
prohibiting combinations of their programs with other software beyond
the boundaries of the Copyright Act. This could have potentially
significant implications for


(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

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