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Re: GPL traitor !

From: Alexander Terekhov
Subject: Re: GPL traitor !
Date: Thu, 14 May 2009 17:29:01 +0200

Alan Mackenzie wrote:
> In gnu.misc.discuss Hadron <address@hidden> wrote:
> > That's funny. You're still talking about. What happened to Alan's claim
> > that the GPL was really easy to understand?
> It stands.  Nobody's pointed to anything difficult in the GPL that they

"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

etc. etc. etc.

"According to the first sentence, the entire GPL applies to a
“modified work as a whole.” Under the copyright law, such a
“modified work” is a derivative work. (17 U.S.C. § 101.) So
far, there is no hint that linking makes a difference.

The second sentence refers to portions of the work that “are
not derived from the Program”—that is, are not derivative
works. This necessarily means works that have their own copyrights,
their own copyright owners, and potentially their own
licenses. So the second sentence is true regardless of whether
the independent and separate works are linked in some way to
the GPL software. Such works remain “independent and separate
works,” at least “when you distribute them as separate
works,” and the GPL cannot possibly apply to them without
their copyright owner’s consent.

The third sentence refers to those “independent and separate
works” when they are distributed “as part of a whole.”
Once again, we are reminded that the GPL applies to the
whole work. But how are we to understand its reference to
“the same sections as part of a whole which is a work based on
the Program” and later “to each and every part regardless of
who wrote it”? Is this a reference to the Copyright Act?


All that the third sentence of GPL section 2 could possibly
mean under the copyright law is that, for a work to be made
available under the GPL, its preexisting component parts must
be available to all subsequent licensees. The licenses to those
components must permit that combination. That much is
necessarily true for any software containing components
licensed by others. The law makes it clear that the GPL can’t
affect the licenses to those preexisting component parts.

Again, linking doesn’t matter.

The GPL then expresses its intent this way:

The intent is to exercise the right to control the distribution
of derivative or collective works based on the Program. (GPL
section 2.)

That may be the intent, but is that what the GPL actually
does? This is a critical example of imprecise phrasing. Who
gets “to exercise the right to control” distribution? Certainly
the owner of a collective or derivative work gets “to exercise
the right to control” those works, and the owner of each 
contribution gets “to exercise the right to control” his or her 
contribution. (17 U.S.C. § 103[b].)

Does the phrase based on the program refer to both derivative
and collective works? That isn’t technically correct, at least
under the U.S. Copyright Act, because a derivative work is a
work based on one or more preexisting works, but a collective
work is not. (17 U.S.C. § 101.) There is still no meaningful
clue about linkage.


One final warning: If there is an ambiguity or uncertainty
of interpretation in a license, the license will generally be 
interpreted against the licensor regardless of what the license 
drafter meant to say. It is up to the authors of the GPL to make 
their license clear, not up to licensees to seek outside guidance 
to interpret it. I explore that issue further in Chapter 12.

I won’t give legal advice of a general nature to the readers of
this book. So you can take with a grain of salt my belief that
these interrelated sections of the GPL quoted earlier will 
ultimately be read by the courts to mean that derivative works are
subject to the GPL’s reciprocity provision, but collective works
are not. And as I shall argue again more fully in the discussion
of derivative works litigation in Chapter 12, the legal analysis
of what constitutes a derivative work simply doesn’t depend
upon the style or mechanism of inter-program linking.
This, by the way, is also the only interpretation that is 
consistent with item 5 of the Open Source Principles listed in
Chapter 1, that allows licensees freely to combine open source
and other software.

The LGPL Alternative


These sections of the LGPL are an impenetrable maze of
technological babble. They should not be in a general-purpose
software license. The LGPL even concedes that “the threshold
for this to be true is not precisely defined by law.” (LGPL section
5.) A licensee under these provisions won’t have a clue
how extensive his or her good faith efforts must be when creating
a derivative work in accordance with sections 2(d) and 5 of
the LGPL."

What say you now, Alan?


(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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