Re: GPLv3 Position Statement

From: Chase Venters
Date: Wed Sep 27 2006 - 14:38:42 EST

On Wed, 27 Sep 2006, Linus Torvalds wrote:

For example, I could write a copyright license that said

"This license forbids you from ever copying the kernel, or any
work made by Leo Tolstoy, which is just a pseudonym for the
easter bunny"

and the fact that the license claims to control the works of Leo "the
easter bunny" Tolstoy, claiming so simply doesn't make it so.

And yes, the above is obviously ridiculous, but the point is, it's no more
ridiculous than a license that would claim that it extends to programs
just because you can run then on Linux.

In fact, it's also no more ridiculous than a license that claims it
extends copyright the other way - to the hardware or platform that you run
a program on. From a legal standpoint, such wording is just totally

The reason a clause such as that will work is that people have no natural right to redistribute Linux. To invoke the FSF's Tivo example, if the Tivo company wants to stamp out 5,000 Tivo boxes, they're going to make 5,000 copies of Linux in the process. By default and by direct notice, the pieces that make up Linux, and the compilation of Linux itself, is copyrighted. This totally prohibits Tivo from making legal copies.

If Tivo wants to redistribute Linux, they need a license. That license is GPLv2, but let us assume for a moment that rms spiked the punch at OLS and the kernel became GPLv3. If GPLv3 says "You may not make copies of the covered work unless you agree to these terms", and one term says, "You must not use technological means to override a stated license freedom", then Tivo redistributes Linux anyway inside a device that uses technological means (signed code, for instance) to override a stated freedom, Tivo is breaking the law, unless every Linux copyright holder agreed to give Tivo a special exception (aka license).

So regardless of whether or not you think such a term is ridiculous, it is enforceable. The only place I am aware that law might deliberately reduce the scope of a license's requirements is to uphold fair use rights, or along the same lines, to ensure fair treatment of a consumer that has paid money for something and is being subjected to unreasonable coercion by the copyright holder of what they have paid for.

If you haven't paid for a copyrighted work, and the copies you want to make do not fall under fair use ("we needed a cheap and good operating system for our embedded device" is not in that category), you need to obey the license or find something else to copy.

I don't want to get ensnared in another licensing debate about code I have no moral or legal claim to, but I do want to thank those of you behind the position statement. I'm not sure I agree with your points but I think the dialogue itself is important.

The last thing that I want to say is that I wish people wouldn't imply to the press (wink wink, nudge nudge, Linus) that the FSF is evil. I've heard at various times the following things in the press:

1. "The FSF is not going to listen to anyone about GPLv3"
2. "The FSF is not listening to anyone about the GPLv3"
3. "I don't want to participate in the GPLv3 process"
4. "The FSF knows my views because I have carbon-copied them"

...meanwhile, the FSF is allegedly trying to open up a dialogue. I think the important distinction is that the FSF will listen to anything the kernel people (or anyone else for that matter) say, but whatever is said will be interpreted and balanced in the context of the FSF's original goals of the license, Freedoms 0-3, and most certainly what they believe those Freedoms to be.

I think one thing that should have happened a _lot_ sooner is that you and others should have made clear to the startled community that you object precisely to the anti-Tivoization clause, not because of any technical reason or interpretation but because you don't see anything wrong with Tivo's use of Linux. It would have been nice but totally optional to engage in dialogue with the FSF. But slandering them about their license development process, or their intentions with regard to using Linux as leverage, is counterproductive whether true or not.

I'm one of those lefty "free software" types, though I don't disbelieve in "open source" either. At this point, I consider it likely that I'll use the GPLv3 for any software I independently develop, and I'll continue to be damn thankful that I have the best operating system kernel ever in history to freely run that code on. When I submit a patch to Linux, I'll happily do so knowing that it will be licensed underneath the wonderful GPLv2.

The reason I wrote this long message is that despite having never met any of you, I consider you all friends. We're software developers working for a common good, even if we see it a different way. I hope that's enough to make me your friends as well. If that is the case, and we're all friends here, let's be fair to the FSF even if we don't agree with them, and even if some of their members haven't been fair to us in the past.

Chase Venters
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