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Re: [Eben's Bullshiting Stunt March 18, 2010] "GNU GPL Version 3: The La
Re: [Eben's Bullshiting Stunt March 18, 2010] "GNU GPL Version 3: The Law Making Process"
Tue, 04 May 2010 16:11:27 -0000
"Delusions of Grandeur: GPLv3 Is A License That Thinks Its a
Having examined the latest draft of the Free Software Foundations
General Public License version 3 (GPLv3) several times, and having
looked over the Rationale document, I have come to a diagnosis.
If GPLv3 were a human being, one would say that it has delusions of
grandeur. It thinks it is a law rather than a license.
Legally speaking, GPLv3 is a license, which is a form of contract. It
specifies the terms on which the holder of copyrights or patents on
software will permit others to make use of it. It is a bit of a special
case because it is open to the world at large; anyone may use it,
without payment, as long as they abide by its terms, which is unusual in
contract law. However, there are doctrines of promissory estoppel and
third party beneficiaries that take account of such things, and GPLv3 is
firmly within the legal genre of contract.
But the GPLv3 was apparently drafted on the assumption that it is
something quite different -- that it is a regulation controlling a range
of general behavior by software users, and that it is being promulgated
by a governmental body with law-creating power.
The difference between a contract and a regulation is extremely
The most basic principle of drafting a contract is to strive for
clarity. All parties involved should know clearly their rights and
duties. Failure to achieve clarity raises transaction costs of all kinds
as interested parties squabble and struggle to decipher the inscrutable
and cope with unforeseen risks, and it often ends in bitterness and
Tricky lawyers have known for centuries that ambiguity in a contract can
be useful. Sneak some murky language in and then insist that it really
means something to your advantage that the other party did not intend to
And judges have known for centuries that there are tricky lawyers. So a
tenet of contract law is that ambiguities are construed against the
party that drafted the document, especially in the case of form
contracts, such as software licenses, which the buyer (or licensee) must
take-or-leave without negotiation.
Laws or regulations are subject to different interpretive rules. Legal
doctrines of administrative law give government officials great latitude
in interpreting ambiguous laws and regulations, never mind that they may
be the chief architects of the confusion.
In consequence, government drafters are often motivated to seek
ambiguity rather than clarity.
A simple reason is that various parties with a veto over the product may
not agree on what it should say. To get something out the door, the
drafters elide the issues, kicking the can to later parts of the
A more Machiavellian process may also be at work. Courts give
considerable deference to government interpretations or rules, so
substantial rewards of power await the official who induces Congress to
draft a confusing law, or his fellow agency staffers a muddy a
regulation. He/she can then issue guidance or interpretive rules or
even a legal complaint in an enforcement action in which some
theretofore hidden standard is unveiled. (See, e.g., Out of Bounds, Out
of Control: Regulatory Enforcement at the EPA (Cato Institute 2002).)
GPLv3 bears the marks of such a process of deliberately crafted
ambiguity. designed to enable future surprises, and not pleasant ones
for the regulatees. Virtually every important provision is subject to
For example, with respect to the important question whether Digital
Rights Management systems could be used in conjunction with programs
released under GPLv3, the language of the license is murky and numerous
ancillary statements by the drafters express strong hostility to DRM. On
the other hand, one of the key figures in the debate recently published
a note saying that everyone was misunderstanding the situation and that
DRM is indeed compatible with GPLv3.
So why has the issue not been made clear? The debate has been going on
for two years. Any sensible corporate GC will say that he has quite
enough to do in dealing with real government regs without adding the FSF
to his roster of inscrutable oracles.
Why the FSF should have a Machiavellian motivation is easy to explain.
As many have noted, the Free Software Foundation is hostile to all forms
of property in software and other creations of the intellect, and eager
to use the GPLv3 as an instrument of this antipathy.
Confusion substantially raises the transaction costs of users who want
to combine proprietary and open programs, and the FSF can selectively
enforce of the terms of the license to promote or hobble perceived
friends and foes. IBM, which pours money into the open source movement,
can be given indulgence; Microsoft better keep its lawyers working
This FSF is a government equivalent mentality was at work with respect
to GPLv2, which is bedeviled by the definitional problems about what
constitutes a derivative work. In explaining it, FSF has made
references to FAQs and other extraneous materials, similar to a
regulatory agency invoking legislative history. The approach as been
radically expanded in the GPLv3, which was originally billed as an
effort at clarification.
This strategy of seeking ambiguity has a problem, however. Whatever
grandiose fantasies the FSF has about itself as a government, possessed
of authority to draft regulations, it is not. FSF is a private body that
has drafted a form contract. It does not get to into court and enforce
new meanings. Instead, on murky points, a judge will decide what it
means, and the FSF should lose.
And once the ambiguities are stripped out, there is not going to be much
left of the GPLv3.
Additional credentials: Long before his IP career, James DeLong was the
Research Director of the Administrative Conference of the United States,
which was dedicated to studying issues of administrative law. Before
that, he helped draft and issue regulations for the Federal Trade
Commission. In fact, he once co-wrote a regulation that caught the eye
of a Washington Star column called Gobbledygook, which featured
particularly striking examples of this bureaucratic art form.
Unfortunately, we were not, that time, trying for obscurity
posted by James DeLong @ 12:56 PM | Software "
P.S. "Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law."
Hyman Rosen <address@hidden> The Silliest GPL 'Advocate'
P.P.S. "Of course correlation implies causation! Without this
fundamental principle, no science would ever make any progress."
Hyman Rosen <address@hidden> The Silliest GPL 'Advocate'
(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.)