Subject: Re: Subscription/Service Fees - OSD Intent
From: Ian Lance Taylor <ian@airs.com>
Date: 29 Mar 2001 13:50:42 -0800

"Smith, Devin" <DSMITH@nixonpeabody.com> writes:

> The GNU GPL is particularly difficult to interpret,
> probably because it was written by a non-lawyer.

The GPL was extensively reviewed by the FSF lawyers.

I personally have always found the GPL to be clear.

The main problem I've seen people have with the GPL is that it does
not define what a derivative work is.  However, RMS feels that that is
unavoidable, because the GPL is not a shrink wrap license.  It is a
description of rights permitted under copyright law.  Because of that,
the GPL can only apply to programs which are derivative works under
copyright law.  And copyright law on software is completely unclear.

> The resulting legal
> uncertainty makes it very difficult for me to give sound advice to my
> clients, and makes licensing rights in or out under the GNU GPL very risky.

The GPL only applies to whether you can copy a program or not.  It
only applies to the work itself and to derivative works.  If you can
figure out what a derivative work is in software, then you understand
the GPL.

> With regard to specificity, sometimes more is better but sometimes it's not
> needed and can be harmful.  Statutory and case law frequently fill in the
> "gaps" left in agreements and there's no need to elaborate.  For instance,
> if a license grants the licensee the right to create derivative works of the
> licensed software, the law provides that the licensee owns the derivative
> works created by the licensee (but not the underlying work on which the
> derivative work is based).  So there's no need to add a provision that
> "licensee owns the derivative work and may distribute it . . ."  In fact,
> adding a poorly drafted provision on the issue is even worse than staying
> silent.

I don't know where you are getting that provision.  I don't see it in
the GPL.

> In the case of Open Source licenses, however, this stuff is too new for
> there to be any value in simply sticking with bad language.  I did a search
> of Lexis recently and could not find a single case interpreting the GNU GPL
> or the Mozilla GL.

There haven't been any.  It's actually not in anybody's interest to
bring a court case over the GPL.  The only way it is likely to happen
is if someone starts a law suit for philosophical reasons, and not
that many people have both the cash and the motivation.

Ian