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GPL License Terms

December 11, 2006

The GNU General Public License Version 2, June 1991 explains:

Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed.

When we released the source code for the Big in Japan tools we used this license, but decided to clarify our interpretation of the term “distribution”. We did not modify or change the license in any way, instead before including the full text of the license we defined “distribution”. Some people disagree, suggesting that by defining the term we have “defacto” changed the license. We disagree with this position because the license itself (i.e. at the end of the license in a section titled “How to Apply These Terms to Your New Programs” recommends that you attach various notices to the program (i.e. prior to the text of the license) similar to intent notice we placed prior to the preamble.

There is some debate in regard to what constitutes distribution or modification inside and outside the open source community. Everyone agrees that if you modify the original source code and distribute software based on those modifications you must release the source of the modifications as well. What is not clear is what distribution means. What if you take our code, modify it, but instead of releasing it as an application, you run it as a service? Do you have to release the source code of your service?

Some people (and lawyers) argue that you do not need to release the modifications, while others argue you do. Our tools were built as web services making this issue very important. Without the clarification we felt there would be a serious incentive to keep improvements closed source. We wrote on our blog:

To be clear, it is our intent that anyone who modifies the code MUST release those modifications publicly. If you modify the code for use as your own hosted service we require that you release the modified code. Get it? There is some confusion about this point in the open source community. The license explains that you are required to do so if you distribute or publish the code and some argue that a hosted application does not constitute “distribution” or “publishing” of the code and as such you are not required to release the modifications. We understand the confusion, but want to be very clear, for the purposes of our license hosting the source code for other’s use constitutes distribution or publication of the binary code. This is detailed in the source code files as well. Enjoy!

The main argument in favor of our interpretation is that executing binary code is, in fact, distribution of source code. So if you execute our source code in the form of a hosted application you are distributing the code and as a result you are required to publish the source code of any changes you make. The next version of the GPL addresses this directly, but we wanted to release the source code now instead of waiting for clarification in the new license.

I know a bunch of you disagree with my position and I would be happy to debate the point, but please remember that we are trying to be the good guys here. We are releasing the code free of charge, we just want everyone to play by the same rules.

This is how we have noticed our intent:

[name of tool][tm] a web service that [insert one line description].
(c) Copyright 2005-2006 Architel Holdings LLC dba Big in Japan

This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation; either version 2 of the License, or any later version.

For purposes of this license, it is our intent that hosting the source code (regardless of whether or not you distribute the binary code) will be considered distribution. This applies to anyone regardless of whether or not they actually publish or distribute the modified code. For example, if you build a hosted application using the source code and modify it in any way, you MUST release the modified source code.
This program is distributed in the hope that it will be useful,but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details.

You should have received a copy of the GNU General Public License along with this program; if not, write to the Free Software Foundation, Inc., 51 Franklin Street, Fifth Floor, Boston, MA 02110-1301 USA.

You may contact Big in Japan by email amuse@biggu.com or by postal mail 1950 Stemmons Freeway, Suite 2022, Dallas, Texas 75207.

GNU GENERAL PUBLIC LICENSE
Version 2, June 1991

Copyright (C) 1989, 1991 Free Software Foundation, Inc.,
51 Franklin Street, Fifth Floor, Boston, MA 02110-1301 USA
Everyone is permitted to copy and distribute verbatim copies
of this license document, but changing it is not allowed.

Preamble The licenses for most software are designed to take away your
freedom to share and change it. yadda, yadda, yadda…

Written by Alexander Muse · Filed Under Blog ·

Comments »

IANAL, and TINLA.

However, I see several problems with your ‘clarification’:

1) It directly contradicts supplementary information published by the author of the license. See the following URL for information on what constitues ‘distribution’ acording to the FSF:
http://www.gnu.org/licenses/gpl-faq.html#UnreleasedMods

2) Next, you’ve specified a means of compliance (submitting modifications back to your subversion server) that are also incompatible with the GPL. See this URL:
http://www.gnu.org/licenses/gpl-faq.html#DoesTheGPLAllowRequireFee

3) While the next version of the GPL (and for that matter, the authorized GPL variant know as the AGPL) addresses this directly, it does so in a way that does not impose the burdens you have. To wit, it requires that the source be made available to users of the hosted system.

Requiring that modifications be submitted back to your subversion server has the following problems:

a) Requires your permision to make the submission (unless you allow anonymous users to upload modifications).

b) Assumes that your subversion server will always exist. For that matter, it assumes your corporate entity will always exist. These are no-nos.

3) The means of compliance you’ve specified is also incompatible with the OSD more generally, for the same reasons I’ve mentioned above. The OSI has always rejected licenses that required that notice be given.

Hopefully, this clears things up.

Comment by Michael Bernstein — December 11, 2006 @ 11:40 pm

With regard to point #1 I read the FAQ clarification and it specifically points out the confusion caused by the modifier “private”. The author indicates that they are going to clarify in version 3. We could not wait for clarification and did so ourselves.

Now on to point #2. I think this is just a mistake. I have modified the language to clarify that we simply want the modified code released (not necessarily to our SVN).
Your forth point (marked 3) indicates that notice is required. We have not made any sort of notice requirement. What do you refer to?

Finally, give me a call to discuss, I am sure you can help us get this right. My number is 214.550.2003. Thanks for the comment and the thoughts.

Comment by Alexander Muse — December 11, 2006 @ 11:57 pm

I read over the Affero GPL and it seems to address this point. But so does the GPL if you interpret private as the authors of the GPL do. The Affero people suggest themselves,

“The GNU General Public License does an excellent job of protecting freedoms for users and developers, but there are questions about the applicablity of the license for software that is run over a network.”

Our lawyers think a simple clarification provided in the notice section before the license can accomplish the same result. I am reluctant to adopt the Affero license, but we will consider it over the next few days. Again, thanks…

Comment by Alexander Muse — December 12, 2006 @ 12:05 am

No, Don’t adopt the AGPL. It has it’s own bugs (in terms of specifying the means that source must be made available).

The notice requirement I referred to is that you were effectively saying ‘you must tell us that you have made a modified version’ by requiring an upload to your SVN server.

I am unsure what would be the best way compatible with the GPL to accomplish the effect you want. You might consider asking the FSF, or asking on the OSI’s license-discuss mailing list. Perhaps you can use the language fropm the GPLv3 draft in your clarification.

BTW, appealing to the authority of your lawyers (who have, at least in this matter, appaently served you rather poorly) will get you nowhere.

Your clarification still has problems of clarity, since it talks about ‘hosting the source code’, not ‘making the application functionality available over a network’, or some similar phrase. I would resist the urge to invent your own terminology. Borrow something that has already withstood peer review.

As for calling you, I’ll stress again that IANAL, and TINLA, so I don’t think I’d be able to help much beyond giving this sort of public critique.

Comment by Michael Bernstein — December 12, 2006 @ 1:11 am

Another take on why your changes are incompatible with the GPL:
http://rakaz.nl/item/why_modifying_the_gpl_is_bad

Comment by Michael Bernstein — December 15, 2006 @ 12:22 am

I still don’t accept that we are modifying the GPL. If you enforce the license in court and don’t have evidence of your intent the court will be required to:

a) determine a definition for distribution ~ something a court would have to hear arguments to decide.
b) determine intent of the license author and/or the intent of the author of the code in question. The authors of the license admit the ambiguity.

So instead of relying on a 63 year old judge in Mississippi who doesn’t have a cell phone, much less a computer decide the fate of our little program, we decided to clarify our intent. Just a little note before the license indicating ~ “hey we know there is confusion about the meaning of distribution, we think it means this, do if you use our software you should be willing to follow the license understanding our intent.

Comment by Alexander Muse — December 15, 2006 @ 11:52 am

The GPL relies on copyright law, not contract law. ‘Distribution’ is a well-defined term of art in copyright law. Your definition is different than the one established by copyright law, therefore different than the one used by the FSF, therefore this is a change.

IANAL, and TINLA, but how much simpler do I need to make this?

Comment by Michael Bernstein — December 20, 2006 @ 2:37 pm

Oh, and the FSF is not admitting an ambiguity, they are admitting that the GPLv2 as interpreted in context of current copyright law, leads to a result in one scenario that is not entirely consistent with their philosophy.

It is *that* that is being fixed in GPLv3 (ie. bringing the practical effects of the GPL more in line with their desired result), not any lack of clarity or of definition.

Comment by Michael Bernstein — December 20, 2006 @ 2:43 pm

Can you provide specific citations for the “standard” definition of distribution in copyright law?

The GPL is a contract and therefore terms must be defined. I have offered to discuss this on the phone and even conference in an experienced software license attorney to help everyone come to a conclusion. My offer stands.

In any event, our position is not out of sorts with the “framers” intent for the license. They approve of our interpretation and feel that our clarification of terms does not ‘change’ the the text of the license. That is the requirement of the license.

Perhaps there is something else that is really going on here. For some reason you seem to have an axe to grind.

Comment by Alexander Muse — December 20, 2006 @ 4:09 pm

Specific Citations? No. IANAL.

However, you might reflect a moment that ‘distributing copies of a work’ is one of the few enumerated exclusive rights of a copyright holder. You better believe this legal term of art has an established meaning, and that your redifinition doesn’t match it. Note that your redefinition is close to the ‘public performance’ or ‘public display’ rights that, unfortunately, do not apply to software (at least currently).

See here:
http://www.copyright.gov/circs/circ1.html

The GPL is *not* a contract, it is a license. I don’t know why I have to keep repeating this. If your lawyer is telling you that the GPL is a contract, you seriously need to get a lawyer that has more experience in this area. Here is an article that explains this better than I could:
http://www.groklaw.net/article.php?story=20031214210634851

I’d be very interested to know if the FSF has specifically approved the text of your ‘clarification’, or if what you got was some more general approval-in-principal. Given the problems I noted with the specific text you are using, I’d be very surprised if it passed a critique by them.

I have no axe to grind, but we do seem to be talking at cross purposes. If I can’t convince you of simple facts such as that the GPL is not a license, and the distribution is an established legal term of art, I guess there isn’t much left to talk about.

Comment by Michael Bernstein — December 31, 2006 @ 2:35 am

[...] The existing version of the GPL is a pre-internet document (1991) before open source business models were concieved of. The authors of the license, the Free Software Foundation, believe software should be free. I don’t agree, but I do appreciate open source as a business model. Here are the changes. Here is the current draft. We have been talking about the current ‘version 2′ of the GPL explaining how we sought to define the term "distribution". We believe that the current version of the GPL requires that software delivered as a service (hosted applications) are distributed and as a result the source must be delivered as well (others feel you do not need to release the code if it is hosted). The new GPL version tightens section six and clearly explains that the source code must be delivered if the software is hosted. Our strategy was to simply clarify our intent just before including the license. [...]

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