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\section*{Opinion on Denationalization of Terminology}


Like most free software licenses, GPLv2 was drafted with specific
attention to details of United States law.  In the case of the GPL, at
least, this simply reflected the historical and geographic origins of
the free software movement.

International use of GPLv2 has revealed variations in copyright laws
that lead to differences among countries in the effective requirements
and consequences of the license.  We aim in GPLv3 to minimize these
differences, without weakening the GPL as a protection for users'
freedom.  Moreover, we wish to avoid application of the vocabulary of
one legal system to the rest of the world.

Draft 1 took important steps towards internationalization of the GPL,
but it continued to use some terms that were taken from US law. In
response to comments on Draft 1, we have revised the license draft to
isolate further the ways in which the GPL depends on details of
national copyright law.  

\subsection*{Propagation and Conveying}

Practical experience with GPLv2 revealed the awkwardness of using the
term ``distribution'' in a license intended for global use.  In some,
but not all, legal systems, distribution is a copyright law term of
art.  Distribution is also well-established as a non-legal term
describing commercial transfers of software.  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.

It was with such concerns in mind that we defined the term
``propagate'' in Draft 1.  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 having limited access to legal counsel.  Draft 1
provided specific examples of propagation that included distribution
but did not include any non-US copyright law terms.  In section 2,
propagation having the effect of enabling other parties to make or
receive copies was permitted as ``distribution'' under the conditions
of sections 4--6 (corresponding to the key sections 1--3 of GPLv2).
Sections 4--6, as well as other sections of the draft, continued to
use the term ``distribution.''

Our intention in preserving the use of ``distribution'' was to
minimize the textual differences between GPLv2 and GPLv3.  This meant,
however, that our efforts to generalize and denationalize concepts
such as copying and distribution went only halfway.  Some readers
found this confusing.  For example, references to distribution in
sections 4--6 could be read to include activities other than
propagation to others, and the meaning of distribution in other
sections of the license document was unclear.

In Draft 2 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.

\subsection*{Works Based On Other Works}

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.

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.

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.

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.''}

\subsection*{Rejection of Choice of Law Clauses}

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.

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.

Draft 2 of GPLv3 presents a truly global copyright license, even
though the effects of the GPL can never be perfectly uniform from
country to country. We have substantially advanced the
internationalization of the license by removing US localisms.  We wish
to make clear, particularly to our critics in the US legal profession,
that, with the special exception of the second paragraph of section
3,\footnote{See GPLv3 Second Discussion Draft Rationale, n. 39.} any
remaining similarities in the words of the license to any of the
terminology of the US copyright statute are incidental to the use of
ordinary, factually-based wording to describe basic concepts of using,
modifying, copying, and sharing software.

by johns last modified 2006-08-02 17:19

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