For Approval: GPLv3

[Chris Travers]

Donovan Hawkins wrote:
> On Mon, 27 Aug 2007, Alexander Terekhov wrote:
>
>> How fascinating. But to begin with your problem is that GPLv3 itself
>> talks about "license from the *original licensors*" (section 10) and
>> even elaborates that "[s]ublicensing is not allowed".
>
> The terms of the GPL apply to people who receive software under the 
> GPL, not to people who release software under the GPL. I am bound only 
> by the BSDL on the original program.

FWIW, I am in the process of scheduling attourney time to try to make 
sense of the legalities of the GPL3.    The more I look at this the less 
sense it makes.  IANAL.

The closes thing I can get to a simple and straight answer is that the 
"BSDL only requires a notice of the license, not the license itself, and 
therefore sublicensing is OK."  The problem with this interpretation s 
that when you start getting into what it actually means, you run into 
problems which seem to contradict the GPL3.  Thus I am left with a bad 
feeling that the license does not do what it was intended to do.

Now for the details:

In the US, and many other countries, we have an originality standard for 
copyright.  This means that original expression may be copyrighted, but 
that functional elements (ideas, facts) may not.   Furthermore in 
derivative or collected works, any copyrights for the work as a whole 
only extend to the original expressive elements added by the new 
author.  Thus, if I include an excerpt of a translation of poetry in a 
book on Norse mythology, I need the translator's permission to do this, 
but if I am granted that, I do not gain copyright ownership over that 
excerpt as included (I ran into this, couldn't get permission, and did 
my own translation as a result).

I don't think anyone will argue that the same applies to software.  If I 
include BSDL code into my program, I do so under the permission fromthe 
BSD License.  I do not acquire any copyrights to the code I include by 
doing so.  At the same time, if I copy GPL code into a BSDL application 
I can do this, but only under the permission of the GPL author.  Hence, 
although I haven't lost copyrights to my own elements, the work as a 
whole becomes encumbered in both cases under the other license (though 
the affect is minimal in the first case since the GPL gives a superset 
of BSD rights, but in the second case, the effect is more dramatic).

Original elements may include code fragments which implement algorithms, 
but could include other areas beyond the code such as screen output, or 
for games, things like story lines and the like.

Now in either case, the work as a whole needs to be licensed under the 
GPL.  We can all agree on this.  However, the basic matter is that I can 
only enforce my own copyrights-- I cannot enforce copyright infringement 
on elements that are not original to me or have had copyright 
transferred appropriately.  Hence even if I "only leave the notice of 
the license and relicense under the GPL" the original elements of the 
code which have not been substantively altered do not become, as a 
practical matter, encumbered by the GPL simply because I do not have 
rights to enforce it.

For this reason, I have *no* idea what it means to, in the process of 
conveying, remove additional permissions (section 7, second paragraph).  
Such a removal of permissions would either be meaningless (I try never 
to read a contract or license that way if I can help it, and if this 
*is* the correct reading, one runs into truth-in-advertising issues), it 
could be beyond the scope of the copyright license (in which case it 
might be compatible with the MS-PL), or it could be in conflict with 
every license out there by mandating controls over copyright permissions 
that nobody else has the right to mandate.

I want to explain one other thing-- people have brought up the issue of 
proprietary software including BSD code again and again.  The approach 
above would suggest that the BSD code is used with permission and is 
therefore not subject to the copyrights (prior to substantive 
alteration) of the proprietary vendor.  However, the work as a whole 
becomes encumbered with the license on that portion, so the license must 
be followed.  In short, Sun never "relicensed" the BSD code.  They just 
encumbered it in works under closed source licenses.

"Relicensing" vs "encumbering" amount to the same thing in practice as 
files diverge because it becomes impossible to safely separate original 
elements from those encumbered by others' copyrights without access to 
the original BSDL work anyway.  This distinction while usually only 
technical becomes relevant with regard to the GPL3 because of the 
ability to remove additional permissions from any portion of the work or 
corresponding source without the need to show that any copyright 
protected elements were added.

In short, I haven't yet been able to link the details of copyright law 
that everyone seems to agree with to the actual implementation of the GPL3.

Best Wishes,
Chris Travers

PS.  In addition to writing software, I have had to deal with these 
larger issues in technical documentation and also non-IT books covering 
poetry where the source was in the public domain but the translation was 
not.  I expect that in translation, there are going to be cases also 
where language and form require or at least closely suggest a single 
correct translation.  One would think that these areas would not be 
subject to copyright independantly just because two people translated 
three lines out of a hundred the same.
-------------- next part --------------
A non-text attachment was scrubbed...
Name: chris.vcf
Type: text/x-vcard
Size: 171 bytes
Desc: not available
URL: <http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/attachments/20070827/b380885c/attachment.vcf>