Request re: the GPL and the revised licensing language in latest beta

[fdv]

Anyway, i see Tommy and FDV as friends of mine, and i hope that this litle argument here, will not make you guys feel bad about me...

Not at all.

Let's switch gears a little bit and open with a case from Tom's and my legal system here. In Chapman v. U.S. (500 U.S. 453 (1991), a man was sentenced for possessing a huge amount of LSD because the authorities weighed the paper that it was on instead of the drug. Pretty stupid, right? He appealed to the Supreme Court. His conviction was upheld. The Court found evidence that "that's not what Congress meant" and even spelled it out in the dissent. That didn't matter, though, because even though that was not what Congress meant, that's how they wrote it.

More generally, everyone here knows of stories of leprechauns or genies who grant wishes to someone who keeps saying "but that's not what I -MEANT-!" Sorry, that's how it's written.

I can plainly see that the creators of the GPL2 did not INTEND authors to add Terms of Use. But that's not how they wrote the GPL2. They disclaim coverage of use, yet they address use in their FAQs and explanation documents. Which is fine! I can see that, so can Tom. But the license was chosen because it explicitly covers modification and distribution of source code. I don't care if the FAQ requires me to like pistachio ice cream -- if the GPL2 itself says ice cream isn't covered, then it's not covered -- and can be dealt with via terms of use.

I have written to the FSF's licensing section

Yeah, as I note, because they say that this is a copyright document, not a Terms of Use document, they're probably not going to address it.

The reality is that in a foreign venue, we are powerless to enforce the terms of use in another country. Saladin doesn't have a US flag icon; that means that we would lack standing to bring any kind of legal action. Heck, some jurisdictions don't even allow click-through-licensing! But as far as ending up in court, we're not that naive, and that's really not what this is about. It boils down to the courtesy of observing the agreement in the HFSLIP terms of use -- personal use only. Neither one of us is going to get on a plane to go serve someone papers and compel an appearance in an international court.

The point is now moot, since the license has been changed, of course.

[Martin H]

Thanks alot for your reply, my friend

CU, Martin.

[Ambassador]

I hate to drag this further into the dirt, but I found this interesting tidbit on the license for MESS (Multi Emulator Super System):

"MESS is distributed under the same license as MAME. While MESS is available at no cost, including its source code, it is not open-source software or free software because commercial use and redistribution are prohibited. That is, its license does not meet the conditions of the Open Source Definition, nor is it "free software" as defined by the Free Software Foundation."

Just my two cents.

[Saladin]

Ohhhkay.

I thought this topic had died off! I was going to ignore it, but.....one last post on the subject.

The FAQ isn't part of the GPL. It might be an interesting academic legal interpretation

While it's true that the FAQ isn't the GPL, I don't think I'd describe the FSF's faq on their own license as an 'interesting academic legal interpretation'....

Now, we could go around and around, as there is obviously a fair bit of disagreement about how the GPL works, but ultimately this is a dead issue: TommyP has (quite correctly) changed the license to one that suits his needs more accurately.

For the record, I'm not in the commercial field. There are other things besides 'personal' and 'commercial' in the world, although this discussion appears to have forgotten them. Such as 'Academic', or 'Research', or 'Law Enforcement', or 'Public Servants'(government) or Non-Profit/Charity/Human Rights, etc.

These are worthwhile areas that just might want to benefit from a highly useful script process that minimizes the amount of time one person has to spend maintaining a consistent build process with limited resources (including time). This isn't now, nor ever was, about taking advantage or somehow getting to kick back and sip latte coffees or make a buck out of tommyp's hard work because of the time that this script saves.

It was about being able to spend more time on the work we're supposed to be doing, with a system that was more reliable.

For FDV:

Here are two other items from the FSF's faq section, referring to the wording of the GPL itself.

Can I omit the preamble of the GPL, or the instructions for how to use it on your own programs, to save space?

The preamble and instructions are integral parts of the GNU GPL and may not be omitted. In fact, the GPL is copyrighted, and its license permits only verbatim copying of the entire GPL. (You can use the legal terms to make another license but it won't be the GNU GPL.)

The preamble and instructions add up to some 1000 words, less than 1/5 of the GPL's total size. They will not make a substantial fractional change in the size of a software package unless the package itself is quite small. In that case, you may as well use a simple all-permissive license rather than the GNU GPL.

and to follow up:

Can I modify the GPL and make a modified license?

You can use the GPL terms (possibly modified) in another license provided that you call your license by another name and do not include the GPL preamble, and provided you modify the instructions-for-use at the end enough to make it clearly different in wording and not mention GNU (though the actual procedure you describe may be similar).

(my emphasis, btw)

Food for thought, anyway.

[fdv]

While it's true that the FAQ isn't the GPL, I don't think I'd describe the FSF's faq on their own license as an 'interesting academic legal interpretation'.

I'll stand by my post: what they wrote and what they meant are two different things. I think my Chapman example serves here. They felt it necessary to clarify and wrote a FAQ. What they should have done is simply said, as many seem to wish they had:

- you can only use our license and no others to cover any aspect of your software. Even though we say that the license only covers modification and distribution and specifically disclaims covering anything else.

- software use is explicitly covered by this license, even though we state otherwise, and you cannot add any terms of use because like a spouse in a marriage you're only allowed to have one license and no more.

and its license permits only verbatim copying of the entire GPL.

The entire thing was included in a separate text file in the distribution archive. No problem here.

Can I modify the GPL and make a modified license?

You can use the GPL terms (possibly modified) in another license provided that you call your license by another name and do not include the GPL preamble

The license was never altered. It was used wholly for copyright and issues related to modification and distribution. Which is all that the GPL2 covers -- it even says so.

Perhaps the confusion is a result of the popular misconception that if software developers use a particular set of terms for copyright, they are not allowed to use any other terms covering anything else. That concept of "license monogamy" is appealing, to be sure.

Here in the US, I have a bifurcated auto insurance policy. One optional part covering the car itself, and one mandatory part covering what I do with it. My interpretation of multiple sets of license/restrictions isn't as far-out and bizarre as some in the community seem to think.

[Saladin]

(edited - removed irrelevant comments regarding gpl wording rewrite - and also corrected my own error regarding the GPL 3 issue. Definately needed more coffee for this post)

FDV - you state:

The entire thing was included in a separate text file in the distribution archive. No problem here.

EDIT (large chunk of post removed) - I was referring to the license preamble contained inside the code, rather than the GPL license file itself. I didn't mean to imply that people had modified the GPL license text directly, as that's a whole different problem. back to the actual issue at hand.

The phrase is also present there: "version 2 of the license, or (at your option) any later version.

Okay, let's review a small snippet from v3 of the GPL:

This License explicitly affirms your unlimited permission to run the unmodified Program

Is that specific enough? HFSLIP was published under a license that included permission to use the software outside a personal use scenario. (although as we've all mentioned before, it's a moot point for versions published by TommyP from this point forward, as the license is now different/more restrictive)

(INSERT)

I'll correct myself here, HFSLIP wasn't published under the GPL3, as I erroneously imply above. It's most certainly published under v2, but: under section 9 of that license you have the option of following the T&Cs of any later version published by the FSF. In this case, version 3. This includes the specific permission to run the software in question. (as the internal preamble of 1.7.8 beta h included the 'any later version' requirement)

So at this point, I agree with FDV's statement: The GPL v2 doesn't explicitly grant the right to run the software. (it does allow quite a bit, (copy/modify/etc) but given they included this item specifically in v3, this obviously isn't the first time this discussion has occurred! However, I maintain that as published under the previous license, HFSLIP could be used outside a personal use setting.

Moving on:

Why I won't let this go? Yep, I've certainly got myself off your christmas card lists but I did mention earlier that we have to completely document our build processes. And they have to comply with all relevant legal considerations. (ie, all software has to be correctly licensed)

Why not get IT to build the machines/maintain them for us? They don't do that type of thing. We're a small part of a larger place. Their job is to get word and outlook running, and they don't really do a cracking job of that. If it's non-standard, you're looking at long months of arguing, and you get no control over the actual machine build process. (and more often than not, they simply don't agree to do non-standard work.)

I do get (vaguely) why you want to limit it to personal use, and I hope you can understand why I've raised this issue. I also appreciate that this discussion has stayed above the usual degeneration into ad-homs you see on a lot of other forums. Healthy debate is good!

By the way, I was serious: if you find yourselves down here in Australia, drop me a line. Regardless of anything, I still think the work you've all put in to HFSLIP is remarkable, and I guarantee that we'll find some food / beer to your liking, my shout.

Edited April 30, 2009 by Saladin

[fdv]

Why I won't let this go?

Both of us apparently are True Believers of our relative positions. I am sure this has a lot of people reading and either laughing or rolling their eyes, or both.

Yep, I've certainly got myself off your christmas card lists

In all seriousness, as I know you understand, but for the benefit of others reading this, no one on this forum is like that.

Why not get IT to build the machines/maintain them for us? They don't do that type of thing.

I have a directory of Win2000 that I have assembled by hand. Every hotfix, over time, manually slipstreamed, and the registry data from each and every UPDATE.INF added to the HIVE files. If a new fix comes along I examine what replaces what and add the new files. I use HFSLIP, of course, but I keep this separate hand-built build so that I can stay on top of exactly what changes MS is affecting. I can't afford to be in the dark about exploits being fixed (or left unaddressed) as I work in law and finance and have much more compelling things to worry about than X user telling me she visited some site that hijacked her machine and now the PC isn't acting right.

Dedicating the time to do this is part of my job, and technically this hand-assembly doesn't make use of HFSLIP at all. I think we all agree that using HFSLIP is to save a$$loads of time and accomplish the more troublesome tasks of (for example, in Win2k) integrating Post SP4 Rollup or DX9. Both of which can be done by hand after wasting a lot of time.

Sure, I'm making a point about doing what HFSLIP does without using HFSLIP to do it, but my larger point is that maybe the responsible thing to do in a corporate setting is to do the same thing I do -- do it manually so that the entire process is 100% understood and totally defensible. Filling HF with patches and running it is one thing, but when you've read every KB article and extracted every fix manually, you're on top of things in a fundamentally different way.

I also appreciate that this discussion has stayed above the usual degeneration into ad-homs you see on a lot of other forums. Healthy debate is good!

Sometimes it's tempting when it comes to some issues -- like that kid a few years ago who claimed that HFSLIP doesn't really slipstream, it replaces files at install time the way OEM methods do. I'd wondered if someone hadn't paid him to spread nonsense to damage the reputation of the software. Licensing issues like we have here can be aggravating, but I personally took this as an opportunity to hash out issues that needed to be addressed. It's still volatile and I think Tom and I would like to keep debate on the topic reined in a bit (of course), but I think the dust has settled with the issues discussed in this thread and with the change in licensing. And besides I'm not admitted to the bar in Canberra.

[Martin H]

Just wanted to add that i haven't recieved answer from FSF yet, and that even though i should get a reply that said that i was wrong, then i would of course still post it! (but as i said, then the auto-generated reply stated that if the question was allready answered in their FAQ, then i wouldn't get a reply!)

Anyway, i found a couple of quotes from 'J.B. Nicholson-Owens', which i believe explains this pretty good:

* "use" is too vague because it encompasses activity that copyright (at least in the US) doesn't regulate and activities that it does regulate. Running the software is not restricted by the GPL. The GPL says this quite clearly. The GPL cannot place restrictions on merely executing the software because copyright law does not grant any copyright holder that power. The source distribution requirement, on the other hand, builds on a power copyright holders are granted. This requirement doesn't kick in until one distributes the GPL-covered software. One is free to make private modifications and use them without ever telling anyone these modifications exist. One is also free to run the software without ever distributing source code to anyone else.

Source: http://www.figuiere.net/hub/blog/?2004/12/...-supporting-ogg

Simply running the software is not a power regulated by copyright law,

according to the FSF (see the bottom of their explanation on why the Apple

Public Source Licenses v1.x were not free software licenses --

http://www.gnu.org/philosophy/historical-apsl.html). More specifically (and

accordingly) the GPL v2 does not place conditions on running the program (from

the last paragraph of section 0):

Source: http://lists.ibiblio.org/pipermail/cc-lice...ary/001522.html

Then when reading the link provided above, then FSF states this:

At a fundamental level, the APSL makes a claim that, if it became accepted, would stretch copyright powers in a dangerous way: it claims to be able to set conditions for simply running the software. As I understand it, copyright law in the US does not permit this, except when encryption or a license manager is used to enforce the conditions. It would be terribly ironic if a failed attempt at making a free software license resulted in an extension of the effective range of copyright power.

Source: http://www.gnu.org/philosophy/historical-apsl.html

[jaclaz]

Just for the record, there were discussions about the nullity of restricting uses of a GPL license connected with the "no military patch" of the Gnutella GPL:

http://web.archive.org/web/20060508181738/...se_modified.txt

which lately eveolved in "beasts" like this one:

http://www.fiberbundle.net/copyright.html

Point is the limit to "freedom 0":

http://www.cyberlaw.se/kalle/2006/08/14/mo...litary-use-gpl/

Here is the "official" definitions of the freedom's that are needed to be OSI compliant (read GNU GPL):

http://www.gnu.org/philosophy/free-sw.html

My personal opinion is that the Author is free to apply whatever limits to freedom he wishes to, but then these limits will make the app non-OSI compliant, and thus contrasting with the use of the GPL.

jaclaz

[fdv]

Anyway, i found a couple of quotes from 'J.B. Nicholson-Owens'

Those three quotes nail it right on the head. The GPL2 doesn't restrict use. Also, running is indeed not covered by copyright law. I don't know what the APSL is in the third quote, but I agree with him -- copyright licenses cannot cover use, by their very nature. I agree that in all cases the software author does indeed need to add a provision addressing terms of use.

Jaclaz, thanks for the links. I had no idea that some of these conclusions had been arrived at independently.

If this goes on much more I'm gonna need a case of those beers Saladin's promised

[Martin H]

As i didn't recieve a reply from the FSF, then i sent another mail to them some time ago, and now i've finally recieved a reply:

Hello,

Thanks for your interest in free software.

> [(My email address removed!) - Sun Apr 26 13:04:15 2009]:

>

> Just wanted to clarify that i'm not asking a question that's allready

> answered in the FAQ, since i want to ask how the license itself does

prevent

> usage restrictions...

> What i mean is that the GPLv2 license states:

> *"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,[...]"*

> **

That means that the license does not place restrictions on running the

program. It does, however, place restrictions on redistributing the

software to others.

> This states that "*running the Program is not restricted*", but just

before

> that, then it states *"Activities other than copying, distribution and

> modification are not

> covered by this License; they are outside its scope", *so doesn't that

mean

> that* *the* *act of running the program isn't covered by the license,

since

> it's outside of the licenses scope?

> To me then this contradicts itself, and since it's the license itself that

> should be followed and not the FAQ, then to me it sounds like the GPLv2

> license *does* allow usage restrictions?

> Thank's in advance.

> Martin Hertz.

>

>

One of the restrictions placed on redistribution of the software (or a

modified version of the sofware) is that "[y]ou may not impose any

further restrictions on the recipients' exercise of the rights granted

herein." Restrictions on usage of the software are not already present

in the license, so imposing such a restriction would be a further

restriction, and therefore a violation of the license.

Thanks again for your interest, and I hope this helps.

--

Sincerely,

Donald R. Robertson, III, J.D.

Assignment Administrator

Free Software Foundation

51 Franklin Street, Fifth Floor

Boston, MA 02110

Phone +1-617-542-5942

Fax +1-617-542-2652

[fdv]

The thing that sucks for the FSF (which isn't a huge deal now that they have v3 out) is that normal, English language parsing of THEIR OWN TEXT contradicts this interpretation. Like I said, I know what they want, but it's just not what they wrote. So, let's do this!

He quotes:

"[y]ou may not impose any further restrictions on the recipients' exercise

of the rights granted herein."

Let's take this step by step.

Full text:

"You may not impose any further restrictions on the recipients' exercise

of the rights granted herein."

What are the rights granted herein?

"Activities other than copying, distribution and modification are not

covered by this License; they are outside its scope."

Can we agree that the "rights granted herein" are "copying, distribution and modification."

Let's rewrite that quote above using simple word substitution.

"You may not impose any further restrictions on the recipients' exercise

of copying, distribution and modification granted herein."

Never mind "further restrictions," we are not imposing ANY restrictions on copying, distribution and modification!!

I trust that this should be a whole lot clearer now. I have no doubt that if folks at the FSF saw this and thought about it a second, they'd say (drumroll, please) "Yeah, that's what we wrote, but that's not what we meant!"

We made a good faith reliance on the plain English reading of the GPL2 when it was chosen.

Let's continue...

Restrictions on usage of the software are not already present

in the license, so imposing such a restriction would be a further

restriction, and therefore a violation of the license.

Um, I'm sorry... but WHAT?!? (He's a lawyer, too.)

What restrictions can I NOT place?

1. further restrictions on copying, distribution and modification

2. there is no #2. Literally. There is only #1. We're all out of restrictions at this point.

So...

Restrictions on usage of the software are not already present in the license

Correct.

imposing such a restriction would be

Would be 100% totally and completely irrelevant. Because the restrictions I cannot place are:

1. further restrictions on copying, distribution and modification

further restriction, and therefore a violation of the license.

Further restrictions don't violate the license, by it's own terms. Only further restrictions on copying, distribution and modification violate the license.

"Well, I know what it says, but that's not what we meant!"

Bible scholars have done this for hundreds of years.

"It doesn't say that!"

"But that's what it MEANS!"

"How can that be what it means when it doesn't SAY it?"

etcetera, etcetera...

FDV

[jaclaz]

@fdv

Though I am not an English mother tongue, and thus may be not "qualified" to do do, I have to disagree.

You cannot take single sentences out of the context.

The word substitution IMHO does not hold.

Let's read again:

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.

I assume as a truism that the scope of a software is to be executed.

Thus this is an implied right, to which however the License imposes explicitly no limits/restrictions and that is NOT covered as an "activity" protected by the license.

In other words the executing of the software is a right given but not necessarily an activity protected.

jaclaz

Edited May 8, 2009 by jaclaz

[fdv]

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

I'm going to bold the part before.

Activities other than copying, distribution and modification are not

covered by this License; they are outside its scope.

What about, say, transporting it? Taking it with you to another country. Can you do that?

Well, let's see.

Transport != copying

Transport != distribution

Transport != modification

Looks like Transport is outside the scope of the license, and not covered by it. The act of Transport is therefore not restricted by the license.

You know what's coming next.

Running != copying

Running != distribution

Running != modification

Looks like running is outside of the scope of the license, and not covered by it. The act of Running is therefore not restricted by the license.

And sure enough, "The act of running the Program is not restricted." (And how could it be? Like transport, it falls outside the scope of the license.)

the License imposes explicitly no limits/restrictions and that is NOT covered as an "activity" protected by the license.

In other words the executing of the software is a right given but not necessarily an activity protected.

jaclaz

You'll get no argument from me here. The license imposes no limits on running because running is not an activity covered by nor a right protected by the license.

Please show me where in the GPL2 license text I can find any prohibition on adding terms covering activities beyond the scope of the license.

Show me where I'm not allowed to add additional, separate terms covering transport, or running, or printing it out on paper and eating it.

Show me where the GPL2 -- a license that the FSF admits is a "copyright license" -- says that it covers activities other than copying, distribution and modification, even though it says that it only covers copying, distribution and modification and anything else is outside of it's scope.

Ultimately, folks, like a few posts back, it boils down to being a copyright license that only covers copying, distribution and modification.

If I want to add a separate Terms of Use, ... well, I don't see that the GPL2 says I can't. It only says that it (the GPL2) does not restrict the act of running the Program.

The GPL2 only covers copying, distribution and modification. How come I say that? Because the GPL2 says so!

[jaclaz]

[Activities other than copying, distribution and modification are not

covered by this License; they are outside its scope.

What about, say, transporting it? Taking it with you to another country. Can you do that?

Well, let's see.

Transport != copying

Transport != distribution

Transport != modification

Looks like Transport is outside the scope of the license, and not covered by it. The act of Transport is therefore not restricted by the license.

This section is intended to make thoroughly clear what is believed to

be a consequence of the rest of this License.

8. If the distribution and/or use of the Program is restricted in

certain countries either by patents or by copyrighted interfaces, the

original copyright holder who places the Program under this License

may add an explicit geographical distribution limitation excluding

those countries, so that distribution is permitted only in or among

countries not thus excluded. In such case, this License incorporates

the limitation as if written in the body of this License.

jaclaz