Subject: Re: Free Software and the Fortune 250
From: Frank Hecker <frank@collab.net>
Date: Fri, 07 Jul 2000 15:06:31 +0000

kmself@ix.netcom.com wrote regarding the GPL:
>   2.  Section 2(b):
> 
>           You must cause any work that you distribute or publish, that
>           in whole or in part contains or is derived from the Program
>           or any part thereof, to be licensed as a whole at no charge
>           to all third parties under the terms of this License.
> 
>       The questions are whether this pertains to distribution or
>       licensing, and who third parties are.
> 
>       My read is that "work that you distribute" [must] be
>       licensed...under the terms of this License" -- that 2(b) ties
>       licensing terms to distribution -- IF distribution THEN licensing
>       terms.

That's my interpretation as well FWIW.

>       It does not comply general third-party distribution, but
>       requires that any such distributions, if made, are free of charge
>       to third parties, and under the terms of the GPL.

I presume you mean "does not compel".

>       Third parties, in my reading, are all others not directly
>       referenced by the original author and the "You" of the GPL.

Side comment: It would be nice if the GPL had a more rigorous definition
of "You" than just "each licensee" (as in section 0). This is one thing
I like about the MPL, which has special language clarifying the meaning
of "You" in the case of legal entities (MPL section 1.12).

In this context an MPL-style definition of "You" would make it clear
that for licensing purposes the entire corporation, including
majority-owned subsidiaries, is considered to be the licensee, and thus
making modified versions of the GPLed software available solely within
the corporation and its subsidiaries would not constitute "distribution"
in GPL terms.  (The MPL definition of "You" would also cover contractors
working for the corporation or its subsidiaries; this is a pretty common
situation with major companies, as shown by Microsoft's labor relations
problems.)

>       The alternate read is that, if distributed to one party, the code
>       (and source) must be distributed to all third parties.  This is
>       inconsistent with me read of this section and of commentary by
>       RMS, particularly regarding compulsory submission clauses of
>       licenses such as the Apple Public License 1.1, sections 2.2(a-d),
>       Sun Community Source License JINI Technology Core Platform v.1.0
>       3.1(b), and the Plan 9 Open Source License Agreement
>       (unversioned) section 4.0.  RMS refers to clauses such as these as
>       a "disrespect for privacy" (http://www.fsf.org/philosophy/apsl.html)

I agree with your interpretation in general. However I think Stallman's
statement in the reference you quote covers mainly your point that "[GPL
section] 2(b) ties licensing terms to distribution -- IF distribution
THEN licensing terms". In other words, a licensee may create modified
versions for private use and not distribute such versions (and their
associated changes) to anyone ("use it for your own private purposes,
without publishing your changes", as Stallman puts it), because such
private use does not trigger the GPL requirements in 2(b). 

I think it's a separate issue whether "if distributed to one party, the
code (and source) must be distributed to all third parties", where "one
party" is a particular third party separate from the original licensor
(Opensales in this case, plus any other contributors) and the "You" of
the GPL (the corporation in question). I don't think Stallman's
statement in the reference quoted can be interpreted as saying "yes" or
"no" on this particular issue, and I'd like to see some additional
references specifically addressing the issue of "private distribution",
i.e., distribution of modified versions (and associated source) to a
limited subset of all possible third parties.

(However it's not clear to me that this is actually at issue in this
particular case. It seemed as if the issue were more internal use within
the corporation and its subsidiaries.)

As another data point, in the early draft versions of the MPL there was
a clause that in effect mandated that licensees make modifications to
MPLed code fully publicly available even in cases where no distribution
took place. Some people objected to this, and the final version of the
MPL was changed to clarify that a) the licensing terms mandating
distribution of source changes were triggered only by dsitribution of
modified versions, and b) you have to distribute source changes to
parties to whom you distribute binaries, but you have no explicit
obligation to distribute such changes to people to whom you have not
distributed binaries. (See MPL section 3.2.)

For more on the original objections to the MPL draft language, see the
following articles and responses to them:

news://news.mozilla.org/34FEFD68.6050%40inmet.com
news://news.mozilla.org/199803052314.PAA06533%40alumni.caltech.edu
news://news.mozilla.org/xzqsoowcpqi.fsf%40dali.uni-paderborn.de

Frank
-- 
Frank Hecker            work: http://www.collab.net/
frank@collab.net        home: http://www.hecker.org/