Subject: Re: Get ready....
From: Gabe Wachob <gwachob@findlaw.com>
Date: Wed, 14 Apr 1999 21:05:15 -0700

"R. L. Kleeberger" wrote:

> Quoting Derek J. Balling (dredd@megacity.org):
> > At 11:29 PM 4/14/99 -0400, R. L. Kleeberger wrote:
> > >There is no reason anymore.  I was still unsure whether the GNU GPL was able
> > >to be legally modified into another license.  It seems it is legal,
> >
> > According to the license it is not. According to the instructions at the
> > top, the license may be copied verbatim, but it may NOT be altered.
> >
> > Since excerption can be defined in terms of alteration, you cannot even
> > excerpt 90% of it (with 9% being the part you don't want, and 1% being the
> > title) since that's an alteration of both omission and change.
>
> Yes.  I would very much like for someone with legal experience who is
> familiar with the GPL to step in so we can come to a conclusion on the
> legality of copying/modifying the GNU GPL.  We have conflicting posts, and I
> can't proceed until this is cleared up.
>

OK -- with the caveat that I am not a licensed lawyer, I chose not to practice after
getting my law degree, so what i say can't be taken as legal advice.  And most of
what I say is based on U.S. law, though much copyright law is harmonized
internationally theseadays.

Copyright is best thought of as a "bag of sticks" where each "stick" is a "exclusive
right". These rights include the right to distribute, the right to copy, the right
to perform, the right to prepare derivative works, etc. (see the copyright act).

There are various standards for determining when these rights are infringed upon by
a party which does not have a license to do so and is not with an exception to these
exclusive rights called "fair use" (once again, see Title 17 for more details).
Generally, what is called "excerption" above would be considered at least copying --
the new work is at least substantially similar in many parts. It would also likely
be an unauthorized derivative work.

Assuming that copyright would indeed apply to the license (which in an earlier
message I state it might not -- depends on originality), it would probably be
infringement unless an infringer could show fair use. One of the criteria for fair
use is "substantiality" of the portion taken. If I take one sentence of a three page
license, that is likely to be at least fair use due to lack of "substantiality".


>
> > >therefore I don't have much of a buttress accept a philosophical one.  And
> > >this list is ot for philosophical discussion.
> >
> > Agreed, and we have to clearly define the direction we want to go. I think
> > that licenses should be able to be copied in whole or part, which the
> > current GPL explicitly forbid.
>
> I will have to think on this.  I am an extremely strong proponent of the GNU
> GPL, and would like to see all open source licenses created to be GPL
> compatible.  On the other hand, I believe a developer should have the
> freedom to create a license to fit his needs(with his user's freedoms in mind).

I suggested a "menu" approach which I think would allow companies to select which
terms (all of which are open source compatible to a certain degree) they like for
each issue dealt with in the contract.

    -Gabe