% FIXME: it's now five, ``Modify''

% FIXME: Transition, GPLv2 ref needed.

Although the definition of ``work based on the Program'' made use of a legal

term of art, ``derivative work,'' peculiar to US copyright law, we did not

believe that this presented difficulties as significant as those associated

with the use of the term ``distribution.''  After all, differently-labeled

concepts corresponding to the derivative work are recognized in all copyright

law systems.  That these counterpart concepts might differ to some degree in

scope and breadth from the US derivative work was simply a consequence of

varying national treatment of the right of altering a copyrighted work.

%FIXME: should we keep this? maybe a footnote?

Ironically, the criticism we have received regarding the use of

US-specific legal terminology in the ``work based on the Program''

definition has come not primarily from readers outside the US, but

from those within it, and particularly from members of the technology

licensing bar.  They have argued that the definition of ``work based

on the Program'' effectively misstates what a derivative work is under

US law, and they have contended that it attempts, by indirect means,

to extend the scope of copyleft in ways they consider undesirable.

They have also asserted that it confounds the concepts of derivative

and collective works, two terms of art that they assume, questionably,

to be neatly disjoint under US law.

% FIXME: As above

We do not agree with these views, and we were long puzzled by the

energy with which they were expressed, given the existence of many

other, more difficult legal issues implicated by the GPL.

Nevertheless, we realized that here, too, we can eliminate usage of

local copyright terminology to good effect.  Discussion of GPLv3 will

be improved by the avoidance of parochial debates over the

construction of terms in one imperfectly-drafted copyright statute.

Interpretation of the license in all countries will be made easier by

replacement of those terms with neutral terminology rooted in

description of behavior.

%FIXME: GPLv3, reword a bit.

Draft 2 therefore takes the task of internationalizing the license

further by removing references to derivative works and by providing a

more globally useful definition of a work ``based on'' another work.

We return to the basic principles of users' freedom and the common

elements of copyright law.  Copyright holders of works of software

have the exclusive right to form new works by modification of the

original, a right that may be expressed in various ways in different

legal systems.  The GPL operates to grant this right to successive

generations of users, particularly through the copyleft conditions set

forth in section 5 of GPLv3, which applies to the conveying of works

based on the Program.  In section 0 we simply define a work based on

another work to mean ``any modified version for which permission is

necessary under applicable copyright law,'' without further qualifying

the nature of that permission, though we make clear that modification

includes the addition of material.\footnote{We have also removed the

paragraph in section 5 that makes reference to ``derivative or

collective works based on the Program.''}

%FIXME: transition

Practical experience with GPLv2 revealed the awkwardness of using the

term ``distribution'' in a license intended for global use.  

%FIXME: rewrite, FSF third person,e tc.

Even within a single country and language, the term distribution may be

ambiguous; as a legal term of art, distribution varies significantly in

meaning among those countries that recognize it.  For example, we have been

told that in at least one country distribution may not include network

transfers of software but may include interdepartmental transfers of physical

copies within an organization.  In many countries the term ``making available

to the public'' or ``communicating to the public'' is the closest counterpart

to the generalized notion of distribution that exists under US law.

% FIXME: probably merge this in

Propagation is defined by behavior, and not by categories drawn from some

particular national copyright statute.  We believe that such factually-based

terminology has the added advantage of being easily understood and applied by

individual developers and users.

% FIXME: transition here to convey definition, maybe with \subsection {},

%        also maybe with: Similar is true with the term ``convey''.

we have further internationalized the license by removing references to

distribution and replacing them with a new factually-based term,

``conveying.'' Conveying is defined to include activities that constitute

propagation of copies to others.  With these changes, GPLv3 addresses

transfers of copies of software in behavioral rather than statutory terms.

At the same time, we have acknowledged the use of ``making available to the

public'' in jurisdictions outside the US by adding it as a specific example

in the definition of ``propagate.'' We decided to leave the precise

definition of an organizational licensee, and the line drawn between

licensees and other parties, for determination under local law.

% FIXME: Section header needed here about choice of law.

% FIXME: reword into tutorial

Some have asked us to address the difficulties of internationalization

by including, or permitting the inclusion of, a choice of law

provision.  We maintain that this is the wrong approach.  Free

software licenses should not contain choice of law clauses, for both

legal and pragmatic reasons.  Choice of law clauses are creatures of

contract, but the substantive rights granted by the GPL are defined

under applicable local copyright law. Contractual free software

licenses can operate only to diminish these rights.  Choice of law

clauses also raise complex questions of interpretation when works of

software are created by combination and extension.  There is also the

real danger that a choice of law clause will specify a jurisdiction

that is hostile to free software principles.

% FIXME: reword into tutorial, \ref to section 7.

Our revised version of section 7 makes explicit our view that the

inclusion of a choice of law clause by a licensee is the imposition of

an additional requirement in violation of the GPL.  Moreover, if a

program author or copyright holder purports to supplement the GPL with

a choice of law clause, section 7 now permits any licensee to remove

that clause.