Minutes for GPL 3 Committee C Meeting on April 6, 2006

Meeting began at 3:00 p.m. GMT

The following committee members participated in the telephone conference:
Carmen Adams, Wachovia
Philippe Aigrain, Sopinspace
Karen Copenhaver, Choate, Hall & Stewart LLP
Jim Day [IOWA]
Richard Fontana, Software Freedom Law Center
Jim Harvey, Hunton & Williams LLP
Rick Friedman, University of Texas
Tim Golden, Bank of America
Javier González, Assistant Professor of Computer Law University of the Balearic Islands
Till Jaeger, Institute for Legal Questions on Free and Open Source Software
Cynthia Longo, Accenture
Laura Majerus, Fenwick & West
Kat McCabe, Black Duck Software, Inc.
Heather Meeker, Greenberg Traurig
Axel Metzger, Harvard University
Mark Radcliffe, DLA Piper
Barbara Reilly, Siemens
Marnita Robertson, UPS
Wendy Seltzer, Berkman Center for Internet & Society at Harvard Law
Jeff Stern, SIA Representative
Jon Stumpf, AIG
David Turner, Free Software Foundation

Two new members were welcomed to the Committee. Jim Day [please insert background information.] Javier González Assistant Professor at the University of the Balearic Islands received his PH.D. in 2003 about Private Digital Copying and has published in a number of publications about P2P systems and other intellectual property related issues. He is a Member of the Center of Law and Computer Studies of the Balearic Islands (CEDIB) and an LLM Candidate 2006 at Harvard University. Committee members were encouraged to nominate additional committee members that would increase the number of non-US participants in the committee process.

Cindy Longo accepted a nomination to License Compatability Subcommittee.

Jim Harvey, chair of the Definitions Subcommittee, continued the full Committee’s discussion of the results of the Subcommittee’s work. The Committee reached consensus on the following points:

• A single definition of a "work based on the Program" should be used throughout GPL 3.0 to avoid confusion caused by multiple versions of explanatory text. The Committee also suggests that using capitalization to indicate the use of a defined term in the document would be extremely useful.
• The definition should not attempt to define derivative work under copyright law by adding phrases such as "that is to say." These phrases can cause confusion and require analysis under multiple tests: first as to whether the work in question is a derivative work under copyright law; and second as to whether it might reasonable fall within the scope of these phrases even if it were not to fall within the definition of derivative work under copyright law. The Committee acknowledges that the definition of derivative work is unclear in all relevant jurisdictions and that reference to derivative work under copyright law will mean that the interpretation of the license may vary depending upon the copyright law applicable in the relevant jurisdiction. (See point regarding "applicable copyright law" below.)
• In fact, rather than words that potentially include additional works within the scope of the license, many members of the Committee would like to see the definition exclude certain works from the definition. A brightline test or safe harbor that left no doubt as to whether a work was included within the scope of the license obligation would be extremely helpful in furthering adoption of free software in large enterprises.
  • Many of the Committee members agreed with the recommendation of the Definitions Subcommittee and those Committee members representing large end users to specifically exclude dynamically linked modules from the definition. One committee member suggested that predictability should not be obtained at the expense of weakening the copyleft clauses that are also important to developer and user interests.
  • The question of where the brightline exclusion or safe harbor falls, however, is a secondary question. The primary request is to provide clarity and predictability in the absence of a clear understanding of how the law in any jurisdiction defining a derivative work of software source code might eventually develop.
• Although the Committee recognizes that determining what copyright law might be applicable in a given situation based on the provisions of the copyright law in the jurisdiction in which a question arises, the various treaties and conventions that govern copyright law in an international context, and potential conflicts between and among these laws, the Committee felt it was important to make a clear statement that a reference to copyright law in GPL 3.0 is not necessarily a reference to the Copyright Act and case law in the United States. This is both an attempt to avoid the arrogance implicit in requiring the application of US law in an international document and to avoid any situation where the application of foreign copyright law might limit or void the agreement. Thus the Committee recommends that the insertion of the word "applicable" prior to the reference to copyright law in the definition of Program.
• Thus the language in the first paragraph of 0. Definitions would be amended as follows:
"A "licensed program" means any program or other work distributed under this License. The "Program" refers to any such program or work, and a "Work Based on the Program" means either the Program or any derivative work under applicable copyright law, but excluding _______;"
• The definition of a "Work Based on the Program," as modified, would be used consistently throughout the document, including in Section 5 to replace the term "modified work."

The date for the next committee teleconference was set for Thursday, April 13, 2006 4:00 GMT.

Meeting concluded at 5:30 p.m. GMT