User:ashawley/Making copyleft work with implied compliance
From GPLv3 Wiki
In 2006 and 2007, the GNU General Public License (GPL) is being modified to produce a third version of the license, the first revision in 15 years. There are many noteworthy changes in the drafts by the Free Software Foundation in cooperation with Software Freedom Law Center. This is a discussion of just one aspect of the changes. The change is to a termination clause related to any failure to comply with the license. The change is of interest for those interested in strengthening, or at least preserving, the enforcement aspects of the GNU GPL.
Considering the 60-day time requirement
The first and second drafts of the license have both proposed modifying the termination clause from an automatic system, to a manual one. The changed clause in the first draft was primarily assailed for its confusing prose. However, heavy concerns were related to a qualitative difference being introduced to the license. These concerns, questions and criticisms have persisted in subsequent drafts.
Before discussing the new clause, let us reinforce the central issue: enforcement of the GNU GPL. Let us first answer what constitutes a "violation" under the GPL? Common mistakes ("mistakes", since a majority of violations are usually misinformed, not malicious) include,
- failing to provide an offer for the source code,
- not providing the correct source code (for the particular version distributed),
- failing to provide necessary components that are required to compile or execute the program,
- providing only patches and not the complete corresponding source code,
- adding additional legal or technical restrictions,
- and any number of minutiae in the license related to fulfilling obligations that inform any recipients of the work the freedoms they should be provided by a copyleft license.
So what happens if people who distribute GPL software don't fulfill to the letter of the GNU GPL? In version 2 of the GNU GPL, any act that violated the license's terms resulted in "auto-termination":
- You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License.
Both the first and second drafts for the new license have preserved the prohibition on ignoring the licensing. Specifically, ignoring the license now additionally makes "void" any attempt to do so. It is unclear what making "void" means in a legal or practical sense. Perhaps, it reinforces and expresses the important sentiment to follow and obey the license. The larger change introduced is the rephrased clause on termination. The clause requires copyright holders provide notice to violators. This considerably departs from automatic termination in the previous version of the license. After notification, the licensee's rights to the software can be terminated "at any time". Here is how the termination section in the second draft of the GPLv3 reads in its entirety:
- If you violate this License, any copyright holder may put you on notice by notifying you of the violation, by any reasonable means, provided 60 days have not elapsed since the last violation. Having put you on notice, the copyright holder may then terminate your license at any time.
The other requirements introduced in drafts of the GNU GPL mostly aim to fix bugs or incomplete aspects of the popular free software license. However, this part of the new license on termination is considered a softened "requirement" (a "permission"). It is this quantitative change of limiting violations to 60 days that is earning criticism. On face value, the criticism is a reasonable and even expected response by the free software community to the change. It is especially reasonable to those who wish to enforce the copyleft nature of the license. Here are some observations of those criticisms.
Requiring a notice to be sent 60 days "since the last violation" is an extremely short window in the realm of free software distribution. The time it took Linksys to comply with the GPL and release the source to their wireless devices was "three to four months". Some have read the "60 days" as an escape clause for GPL violators that would fundamentally weaken the GNU GPL. Investigating violators of the GPL is a difficult and laborous task. This would potential make it more strenuous than it previously was. However, this is perhaps a closed reading of the new clause.
The 60-day "limitation" only applies to termination of the license. It is not a wholesale limitation on all responses to a violation. It is only a time limit for termination. This nor any other section of the GNU GPL limits taking other actions against copyright infringement to the extent of the law. Therefore, the 60-day time limit does not apply to actions other than license termination. If the new time limit weakens the GPL or "ties the hands" of enforcers, it must be mentioned that the criticism is confined to termination and not all potential aspects of license violation. Enforcement other than termination is taken up again later.
Let's assume you're convinced that the 60-day limit only applies to license termination. Is the time window of 60 days acceptable? It sounds like a loophole for people to violate the General Public License for our software on a temporary basis. People can violate the license until they get caught. There are no assurances in the clause they can be caught.
However, the 60-day time window given in the current drafts of the GPLv3 for its termination clause are not a threat to the power of the GPL. Even if the time limit for activating the termination sequence was as short as 1 day, it would still not be a threat. How? Well, there's no point terminating someone who's not violating the license any longer.
Some people aren't satisfied by this logic. They think the "60-day" rule could be exploited with trickery. The complex hypotheticals have already been imagined for us: A company is created for a limited basis and it distributes GPL software as a sold product. After 60 days, the company dissolves and ceases distributing the software. By dissolving as a legal entity, the violator is immune from termination, since the 60-day window has passed.
The problem with this kind of scenario is its characterization of distributing or selling GPL software as the violation. That there is but a single date of the violation, and the it is last time the violation occurred. However, license violations occur not at a single point in time, but exists as a violation until they comply with the license. This is no different than if a book was distributed illegally. The copyright violation for a book exists as a violation and is actionable by the copyright holder as a violation until a remedy occurs and no one finds out within the time limit of enforcing copyright.
The other problem with the hypothetical transient violator scenario is that it assumes terminating a license is a useful response to such a situation. One could seek termination to be punitive, but to who's gain? Certainly it is not the gain of the copyright holder nor the free software community's. If someone is no longer distributing software, the copyright holder would have spent effort terminating the license for someone who has already willing self-terminated their own use of the license and its software. In the more likely scenario, people seek compliance rather than dissolving their license. Punitive termination would punish those who wish to become compliant. It is better for the free software community to embrace those who seek compliance and therefore partake in the fair and equal basis the GPL provides for free software distribution. Punitive license termination is still available, but is not practically useful. Therefore, the hypothetical is as useful as it shows that termination as a response to license violation could never produce a useful result.
The alternative punishment for GPL violators is copyright enforcement. Copyright enforcement is available in the nearest available legal and judicial system (if it supports it). The license does not restrict or enable traditional copyright enforcement. The GPL's agnosticism is useful. If it described every possible legal response for copyright violation and do this for each and every single jurisdiction of copyright, the license would be unwieldly. Adding this to the license would be similar to the warnings from the Federal Bureau of Investigation appearing at the beginning of video recordings of Hollywood-made films. Assuming such legal threats were added to the license, ignoring how technically difficult it would be to maintain them for each locale, how useful could they be?
Seeking damages for infringement varies by each copyright holder's particular wishes. The Free Software Foundation represents one side of the spectrum. It only seeks compliance of the GPL first, does not seek damages nor seeks to prevent software distribution. Their position is consistent with their philosophical criticisms of the copyright regimes in place in the U.S. and elsewhere, and its increasingly strong-handed enforcement by the media industry.
Termination alone is a hefty threat for any technology company whose revenues depend on a free software package. This is probably the reason the FSF is satisfied with using termination to seek GPL compliance (Note that seeking retribution other than termination is not mentioned at all by the GPL).
Thefore, the new clause isn't a threat to the GPL's strength or those who enforce the GPL, since termination is not the harshest response available for dealing with violation. It only works well enough for the FSF and others to bring others into compliance and "in to the fold" of free software.
Regardless, why the change? Why the addition of such particular limits? Is this an improvement? The obvious criticism of auto-termination originally in the GPLv2 is its inherent weakness. It doesn't work practically, since automatic termination implies self-policing by the same individuals who violated the license. Why would those who violated the license then begin to follow the enforcement aspect of the license? Automatic termination probably isn't worth including in a license, since it instantly "lacks teeth".
As anyone can imagine--and those who enforce the GPL for free software know from experience--investigating and enforcing the GPL is anything but automatic. It requires vigilance, patience and energy to actively pursue and investigate potential violators. It also requires copious correspondence and negotiation--either with or without the aid of professional lawyers. This brings us to a reason for the 60-day limit.
The new clause for termination is meant to provide a termination system that works and is based on the experience of GPL enforcers, like the FSF's GPL Compliance Lab. The years of using the GPLv2 by the Compliance Lab has meant they know the GNU GPL intimately, but they also understand the process of contacting violators and seeking compliance. One communication they likely have to make often with simple violations--with automatic termination--is a notice to the violator that they are in compliance and can continue using the software.
Now, GPL enforcers like the FSF's GPL compliance lab handle dozens of violations at any one time and each violator will in all probability seek the path of compliance. Most violations are likely accidental and not malicious. They simply ask the wrong be corrected by pointing to the language of the GNU GPL. Regardless, a final letter needs to be sent to confirm that a violator has reached compliance. To fix this, the small piece of language that puts a 60-day limit on catching violators doesn't require a notice be sent. In a manner of trickery that only a computer programmer (read "hacker") could devise, the 60-day rule for notice implies that when 60 days expire then the violators can assume they are compliant. If within 60 days of the last notice, they don't receive another notice or--worse--termination, then they are in compliance and can take a sigh of relief. This is really how the current license works anyway: All activities are free, uninhibited, and assumed in compliance until it is seen otherwise.
Avoiding having to write a notice of compliance to offenders is helpful for another reason. Under the old regime, reinstating the license for violators likely required a written letter saying, "you are no longer terminated and are permitted to exercise the license". The letter may need to have a negotiated understanding of what warrants fulfillment of the license. For instance, agreements upon what specific technical details warrant compliance in light of previous violations. All this could become a lot of work for each and every rudimentary violation. The contents of such a letter could also compromise the enforcer's ability to seek compliance for a later violation by the same party. The letter of understanding could potentially be used by the party as motivation and evidence to defend a later violation. The "60-day time limit"--which should be named the "implied compliance clause"--keeps GPL compliance labs everywhere from getting in trouble by any poorly written correspondence. It confines discussions on violation and compliance to the letter of the license and not any correspondence or other evidence that could be used in court. (Certifying software as compliant is done by the FSF, but by a separate process. Something they've made a separate transaction and service, and does not interfere with the compliance lab's work.)
The new termination clause realizes, rather than idealizes, the activity of enforcing the GPL. It also fulfills the commitment to guard the work's copyright as necessitateed by copyright and stated in the license's preamble: "Developers that use the GNU GPL protect your rights with two steps: (1) assert copyright on the software (2) offer you this License....". Copyright for software and other works is a "necessary evil" for providing copyleft to the free software movement. This "necessary evil" requires copyright assignment, copyright enforcement, license compliance and other aspects of preserving the free software distribution and licensing system under the GPL to be required activities for sustaining the free software movement. WThe new termination clause affirms the actions of those who are "on the ground" making copyleft happen. Work that is as important as the work from those who program, hack, document and produce the free software for the free software movement.