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    SubjectRe: GPLv3 Position Statement

    > > I do think there are a few flaws in the arguments however. The biggest
    > > one for me can be summed up in the question "which license better
    > > represents the intention of the GPLv2 in the current world?"
    > Really, that's not a flaw. Some people like GPLv2 purely on its
    > practical effect; others because of its political statements. I think
    > Linus has summed it up much better that I can here:

    I probably didn't make myself clear enough. I'm not disagreeing with
    the conclusion Linus has come to. I don't have enough copyright
    remaining in the Linux kernel to consider trying to influence that

    I am however disagreeing with the justification given in the position
    statement. The position statement implies that the FSF may be in
    breach of contract, at least morally, by trying to release a version
    of the GPL that is not in keeping with previous versions. I think the
    preamble of the GPLv2 and the explanations given of the FSF intentions
    over the years are completely consistent with the GPLv3 current draft.

    As Linus has said in another thread, the FSF has been arguing this
    position for many years. Their position on DRM is entirely consistent
    with the original motivations for starting the GNU project, especially
    when you think of the original printer story that inspired it all.

    At the same time, the position Linus has taken is consistent with his
    past attitude towards similar issues. I don't think it is entirely
    consistent with the COPYING file that has been distributed with the
    kernel all these years (especially the preamble), but thats probably

    > but the preamble isn't part of the actual licence. Additionally, if you
    > see the rights framed in terms of access to modifications, then GPLv3 is
    > different.

    The GPLv3 is certainly different, otherwise there isn't much point in
    an update.

    I would argue that the GPLv3 current draft is more consistent with the
    aims of the GPLv2, as given in the preamble of the GPLv2 in numerous
    speeches by Richard and other FSF members, than the GPLv2 license text

    So I think that the FSF have done nothing morally wrong. Whether Linus
    or anyone else prefers the GPLv2 license text or the GPLv3 license
    text is an entirely separate issue and not something that I have
    commented on.

    > I agree they've found ways of restricting how their hardware is used,
    > yes. However, I tried to give a rationale of why this isn't necessarily
    > bad for the open source ecosystem as a whole here:

    I am not trying to argue if its good or bad for the open source
    ecosystem, at least as regards the Linux kernel. I am trying to ensure
    that yourself and others understand that your criticisms of the
    consistency of the FSF position are not correct.

    For my own code, I think GPLv3 is a better choice. This is largely
    because I have been through the pain of enforcement of GPLv2 a number
    of times, and I can see that GPLv3 should make it easier, at least for
    me. The language is clearer, which means less time spent on pointless
    copyright law debates with various vendors.

    For other projects the relative benefits of v2 versus v3 may be
    different, but I at least hope that project leaders will look at GPLv3
    and make an informed decision. I think the errors in the position
    statement may lead to people making incorrect judgements.

    > Actually, no, it's enshrined in GPLv2 in clause 0:
    > "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."
    > It's the "act of running the program is not restricted".

    ok, lets take a really obvious example. Say that HP decided to
    incorporate modified parts of the Linux kernel in HPUX on in their
    printers. HP would be distributing the resulting image for people to
    use. The fact that people are 'using' it in the end does not alter the
    fact that HP would be in violation of the GPL during the act of

    So what clause 0 is saying is two things:

    1) its a basic statement of copyright law, at least in the US

    2) if someone distributes in violation of the GPL, you should go
    after the distributor, not the end users.

    So as a TiVo owner, I am not in violation of the GPL. But TiVo can be
    in violation for selling me something based on Linux which does not
    follow the GPL.

    I actually think they were already in violation with TiVo version 1,
    as they were using binary kernel modules. Although it is possible to
    have a kernel module which is not a derivative work of the kernel (as
    address space and linking concerns are only "rules of thumb", not true
    tests for a derivative work), I think that their modules were in fact
    pretty clearly derived works. I can say this partly because I have
    disassembled a few of them and looked at them in great detail.

    > This is really the crux of the argument with the FSF over the DRM
    > clauses. If you take the position (as the people who signed the
    > discussion paper do) that embedded Linux constitutes an end use, then
    > this freedom from restriction of running the programme is compromised in
    > GPLv3, and hence is against the spirit of GPLv2 (and thus violates
    > clause 9 of GPLv2).

    "embedded Linux constitutes end use" as a statement by itself makes no
    sense. Are you really trying to argue that all embedded system vendors
    get a "get out of jail free" card with regard the GPLv2?

    When an embedded system vendor ships Samba as part of their system
    they are very clearly distributing Samba. That has been proven time
    and again in legal disputes with regards the GPL that I and others have
    been involved with. The ones I have been involved with didn't end up
    in court, as the lawyers and managers for these companies realised
    they were wrong and quickly gave up.

    > To go after Tivo (and not violate GPLv2 clause 9), the FSF has to take
    > the position that what Tivo is doing is not use, but is distribution.
    > This is a dangerous shift in precedent because it applies to every
    > embedded use of Linux (or any other GPL licensed programme).

    No, the FSF doesn't need to take a position like that.

    A copyright license can put almost any burden it likes on a
    distributor. I could have put a license on Samba saying it may not be
    distributed with hardware that has more than 7pins on the main CPU. It
    would have been an idiotic restriction, but it would also have been
    enforceable, and vendors would have had to use a different software
    package instead of Samba.

    The FSF is using the DRM terms in GPLv3 to try to enforce their
    original intentions, as they have explained those intentions for many
    years. That is not a shift in what they have been doing for years
    anyway, but the new language does make it clearer, and thus less time
    consuming to enforce.

    > That's clause 11 of the current v3 Draft2:
    > "If you convey a covered work, you similarly covenant to all recipients,
    > including recipients of works based on the covered work, not to assert
    > any of your essential patent claims in the covered work."

    yes, and in GPLv2, in the preamble we have:

    Finally, any free program is threatened constantly by software
    patents. We wish to avoid the danger that redistributors of a free
    program will individually obtain patent licenses, in effect making
    the program proprietary. To prevent this, we have made it clear that
    any patent must be licensed for everyone's free use or not licensed
    at all.

    and in the main license text of GPLv2 we have:

    For example, if a patent license would not permit royalty-free
    redistribution of the Program by all those who receive copies
    directly or indirectly through you, then the only way you could
    satisfy both it and this License would be to refrain entirely from
    distribution of the Program.

    Many company lawyers have objected to those terms in GPLv2 over the
    years, for much the same reason you object to the patent terms in
    GPLv3. I think the GPLv3 license text is a better match for the
    intentions of GPLv2 (as given in the above preamble excerpt) than the
    GPLv2 text is.

    I also think it is worth noting that GPLv3 is arguably better for
    companies with patent portfolios than GPLv2. The reason is that the
    exact match for the excerpt I gave above in GPLv3 is this:

    For example, if you accept a patent license that prohibits
    royalty-free conveying by those who receive copies directly or
    indirectly through you, then the only way you could satisfy both it
    and this License would be to refrain entirely from conveying the

    Note the change from "if a patent license" to "if you accept a patent
    license" ?

    That should to make life easier for companies who might be
    accidentally in violation of the GPLv2 patent provisions. The "accept"
    part arguably implies that you have to knowingly be in violation. The
    old wording could be argued to mean you are in trouble even for
    accidental violation (as can easily happen via bulk cross-licensing

    > This means that if you host a GPLv3 covered programme on your website
    > for instance (even if you didn't produce it or modify it in any way),
    > you licence any patent you hold covering it.

    Many (most?) lawyers think this is already true for GPLv2, due to the
    clause I quoted above.

    Either way, this is very different from the statement made in the
    position statement. In this position statement it said:

    As drafted, this currently looks like it would potentially
    jeopardise the entire patent portfolio of a company simply by the
    act of placing a GPLv3 licensed programme on their website

    If the "entire patent portfolio" consists of a small group of patents
    which specifically deal with what the code has been posted by the
    company deals with, then sure. But as written the position statement
    is sensationalist and very misleading, especially when the current
    GPLv2 requirements regarding patents are taken into account.

    > HP is already on record as objecting to this as disproportionate.

    Could you point me at their statement? I suspect it didn't use the
    same words used in the position statement :-)

    Cheers, Tridge
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