diff --git a/gpl-lgpl.tex b/gpl-lgpl.tex index 3f0d0fbb77c6f1de06188d5a2da3f8dd6c968508..9c54e64048cf386136788485f587fb76f8354c40 100644 --- a/gpl-lgpl.tex +++ b/gpl-lgpl.tex @@ -411,36 +411,13 @@ stands to reason that putting software into the public domain is the easiest and most straightforward way to produce Free Software. Indeed, some major Free Software projects have chosen this method for making their software Free. However, most of the Free Software in existence \emph{is} -copyrighted. - -For some, this is because while it's reasonable to assume that US courts -will recognize abandonment of copyright given a clear enough notice from the -author, that's not necessarily true in all jurisdictions and even if it was, -we don't know what form exactly a dedication should take to convince courts -and prevent confusion or attempted revocations. - -For others, it's because authors feel that enforcing through copyright one or -more license condtions, reasonably chosen to correspond to their wishes, is -another way to create Free Software that everyone benefits from. - -In the case of FSF and the GNU Project, copyrighting and licensing software -was done due to very careful planning. +copyrighted. In most cases (particularly in those of FSF and the GNU +Project), this was done due to very careful planning. Software released into the public domain does grant freedom to those users who receive the standard versions on which the original author disclaimed copyright. However, since the work is not copyrighted, any nontrivial -modification made to the work is copyrightable. - -% FIXME: can't this be written better? -% The core intention of copyleft is to keep software from being reused in -% proprietary software. [It's the last - not discussed in the guide? - paragraph -% in GPLv2 and v3; though not part of the legal text, I'd argue it pervades it.] -% This means a lot of things, but it doesn't automatically mean that the public -% domain would disappear otherwise, in the simple sense that what is in the public -% domain remains there. If the argument is that there aren't adequate incentives -% for enlarging it, that's different than saying someone can shrink it. -% If there are serious reasons for thinking one can shrink it, then those -% reasons seem worth discussing separately from the incentives issue. +modification made to the work is fully copyrightable. Free Software released into the public domain initially is Free, and perhaps some who modify the software choose to place their work into the @@ -755,7 +732,7 @@ created. Like jazz, or novels, or architecture, the law gets built upon the work that went before. This adding and changing is what creativity always is. And a free society is one that assures that its most important resources remain free in just this sense.\footnote{This -fragment is Copyright \copyright{} 2002, Lawrence Lessig. It is +quotation is Copyright \copyright{} 2002, Lawrence Lessig. It is licensed under the terms of \href{http://creativecommons.org/licenses/by/1.0/}{the ``Attribution License'' version 1.0} or any later version as published by Creative @@ -1517,21 +1494,21 @@ It is certainly true that GPL intends for any work that is determined a ``derivative work'' under copyright law must be licensed as a whole under GPL\@, as will be discussed in the following chapter. However, as we finish up our discussion derivative works, we must note that preparation of a -derivative work in edge cases like the above is by far not the only way to -create a new work covered by GPL\@. - -In fact, while questions on the limits of derivative work preparation are -perhaps the most exciting area of legal issues to consider, the more mundane -ways to create a new work covered by GPL are much more common. For example, -copyright statutes generally require permission from the copyright holder to -grant explicit permission to modify a work in any manner. As discussed in the -next chapter, the GPL {\em does} grant such permission, but requires the modified -work must also be licensed under the terms of the GPL (and only GPL: -see\S~\label{GPLv2s6} in this tutorial). Determining whether software was -modified is a substantially easier analysis than the discussions and considerations -in this chapter on other derivative works. - -The question of any derivative works, when and how they are made, is undoubtedly +derivative work is by far not the only way to create a new work covered by +GPL\@. + +In fact, while derivative work preparation is perhaps the most exciting area +of legal issues to consider, the more mundane ways to create a new work +covered by GPL are much more common. For example, copyright statutes +generally require permission from the copyright holder to grant explicit +permission to modify a work in any manner. As discussed in the next chapter, +the GPL {\em does} grant such permission, but requires the modified work must +also be licensed under the terms of the GPL (and only GPL: +see\S~\ref{GPLv2s6} in this tutorial). Determining whether software was +modified is a substantially easier analysis than the derivative work +discussions and considerations in this chapter. + +The question of derivative works, when and how they are made, is undoubtedly an essential discussion in the interpretation and consideration of copyleft. That is why this chapter was included in this tutorial. However, as we return from this digression and resume discussion of the detailed text of the @@ -2068,17 +2045,17 @@ parties might reasonably contemplate the product will be put. Hewlett-Packard Co. v. Repeat-O-Type Stencil Mfg. Corp., Inc., 123 F.3d 1445, 1451 (Fed. Cir. 1997). -Free Software offers the user all rights to enjoy the software in the -privacy of their home, and while it places conditions on acts covered by -copyright, that is typically triggered by distributing and it's not -likely to prevent the application of the implied license doctrine to Free -Software. Software licensed under the GPL grants the licensee the right to -make, use, and sell the software, each of which are exclusive rights of a -patent holder. Therefore, although the GPLv2 does not expressly grant the -licensee the right to do those things under any patents the licensor may -have that cover the software or its reasonably contemplated uses, by -licensing the software under the GPLv2, the distributor impliedly licenses -those patents to the GPLv2 licensee with respect to the GPLv2'd software. +Of course, Free Software is licensed, not sold, and there are indeed +restrictions placed on the licensee, but those differences are not likely +to prevent the application of the implied license doctrine to Free +Software, because software licensed under the GPL grants the licensee the +right to make, use, and sell the software, each of which are exclusive +rights of a patent holder. Therefore, although the GPLv2 does not expressly +grant the licensee the right to do those things under any patents the +licensor may have that cover the software or its reasonably contemplated +uses, by licensing the software under the GPLv2, the distributor impliedly +licenses those patents to the GPLv2 licensee with respect to the GPLv2'd +software. An interesting issue regarding this implied patent license of GPLv2'd software is what would be considered ``uses of the [software] to which @@ -2206,11 +2183,10 @@ that. Under copyright law, the GPL has granted various rights and freedoms to the licensee to perform specific types of copying, modification, and redistribution. By default, all other types of copying, modification, and -redistribution are prohibited (if and because they're prohibited by copyright). -GPLv2~\S4 says that if you undertake any of those other types (e.g., -redistributing binary-only in violation of GPLv2~\S3), then all rights under -the license --- even those otherwise permitted for those who have not -violated --- terminate automatically. +redistribution are prohibited. GPLv2~\S4 says that if you undertake any of +those other types (e.g., redistributing binary-only in violation of GPLv2~\S3), +then all rights under the license --- even those otherwise permitted for +those who have not violated --- terminate automatically. GPLv2~\S4 makes GPLv2 enforceable. If licensees fail to adhere to the license, then they are stuck without any permission under to engage in @@ -2319,19 +2295,7 @@ violation\footnote{\label{German-reinstatement-footnote} While this is legally t upstream could make it effectively impossible for a downstream party to engage in a commercial redistribution pursuant to \hyperref[GPLv2s3]{GPLv2~\S3(a--b)}. (\S~\ref{upstream} in the Compliance - Guide portion of this tutorial discussed related details.)}\footnote{In the larger - Free Software community, it is generally understood that the copyright permissions - of downstream parties are valid regardless whether someone on their distribution - chain may have lost their license, because their permissions come from the copyright - holder, and the license text grants those permissions (as long as one complies with - its conditions). From this perspective, the GPL's ``automatic downstream licensing'' - provision is a restatement or reinforcement of that obvious rule, not a new or - specific clause. This intuition is valuable and one can argue it is not unwarranted, - because, among others, there is a fundamental distinction in US copyright law between - material object (the copy) and the intellectual content (the work): the physical ``source'' - from where the downstream licensee got the copy doesn't preclude that they get a license - to the content from the copyright holder(s), i.e. the permissions under certain conditions - as spelled out in the text.}. + Guide portion of this tutorial discussed related details.)}. Downstream's licensed rights are not dependent on compliance of their upstream, because their licenses issue directly from the copyright holder. Second, automatic