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They're involved in the distributionThey're involved in the distributionPosted Jul 9, 2007 19:13 UTC (Mon) by rickmoen (subscriber, #6943)In reply to: They're involved in the distribution by sepreece Parent article: Microsoft's proclamation on GPLv3 "sepreece" wrote: Well, the FSF's lawyers are paid to believe as the FSF does and to claim (as lawyers everywhere do) as broad a version of their client's position as possible. Taking their opinion as gospel would be naive. Beg pardon? Nothing I wrote (as opposed to what further-upthread commentator Ciaran O'Riordan quoted) relies in any way on either what "the GPLv3 lawyers" claimed (Ciaran's phrase) or "the FSF's lawyers" claimed (your phrase). The argument about the "or any later version" language is incorrect. Yes, a downstream distributor may choose to distribute under "any later version" if the author chose that language. That decision would bind that distributor and those to whom she distributes, but cannot percolate back upstream. There appears to be some confusion here: A downstream distributor has no discretion whatsoever about the licensing terms that shall apply to a third-party creation that he/she is electing to redistribute. (He/she cannot "choose" --- other than choosing whether to redistribute or not.) That is a statutory monopoly, held by the owner of copyright title. Nobody talked about obligations "percolating back upstream": Obligations attached to copyright will necessarily get decided and attached to code instances by the work's author (or copyright assignee), not by any downstream party. This really should not be a difficult concept. When a codebase author has elected to attach "GPLv2 or any later version" conditions to a codebase instance, those terms travel with the codebase instance as it is handed from distributor to distributor to end-user. Any of those parties can elect to receive the instance under, as stated, GPLv2 or any later version. (As the GPL licence text helpfully points out, any receiving party can alternatively decline the licence terms, but then the recipient actually receives fewer rights, and among the several key rights then not conveyed is the right of redistribution.) Therefore, a recipient who decides he's receiving the codebase under the terms of GPLv3 can immediately assert all rights the immediately upstream distributor has agreed to convey is order to qualify as a licensed distributor. This would be Novell, Inc. for SLES10/SLED10's "GPLv2 or later" components. It would be Microsoft Corporation as to Services for Unix's (Interix's) "GPLv2 or later" components. If the immediately upstream distributor refuses to convey those rights, then he/she is in violation of the codebase author's copyright, can be sued for the tort, and will get his/her licence terminated. The FAQ clarifies this, especially with regard to patent licenses. FSF's FAQs on licensing have always played fast and loose with legal realities (e.g., the GPL FAQ's longstanding spurious claim that GPLv2 clause 3b requires provision of source code on physical media). I'm surprised to hear you quote one, given that you just urged us to be cautious of "FSF's lawyers" (whom, ironically, I did not happen to quote or rely on). But no matter. Onwards: "When you convey GPLed software, you must follow the terms and conditions of one particular version of the license." Someone distributing under "GPLv2 or any later version" cannot be said to be distributing under GPLv3, unless the distribution was specifically identified as being under a specific later version. The phrase "distributing under GPLv3" (emphasis mine) makes little sense, and misses the point entirely: (1) A downstream distributor has no discretion whatsoever as to what terms he/she distributes under: That property is dictated by the copyright owner, and cannot be lawfully changed by downstream recipients. If they claim to have done so, they'll be themselves committing copyright violation, and possibly also business fraud and sundry other torts. (2) What GPLv2 actually says, and what actually happens, is that any receiving party may elect to receive the codebase instance subject to the terms of GPLv2, or, at his/her option, subject to the terms of any later version". Rick Moen
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They're involved in the distribution Posted Jul 10, 2007 1:39 UTC (Tue) by sepreece (subscriber, #19270) [Link] Well, I read your "Quite." as stating your agreement with Ciaran's quote. I apologize if that was an incorrect inference.
However, on the "GPLv2 or any later version" question, I believe you are simply wrong, especially w/r/t to the patent question, since the FSF took the time to directly address the patent question in the FAQ: "No. When you convey GPLed software, you must follow the terms and conditions of one particular version of the license. When you do so, that version defines the obligations you have. If users may also elect to use later versions of the GPL, that's merely an additional permission they haveit does not require you to fulfill the terms of the later version of the GPL as well."
That says, quite clearly that someone distributing "GPLv2 or later" gets to choose which version to distribute under and that choice determines the distributor's obligations under the license. The recipient has the same privilege, with respect to its use and re-distribution, but cannot apply any obligations upstream other than those the software was conveyed under.
I think this is actually pretty clear in the actual license language: "you have the option of following the terms and conditions either of that numbered version or of any later version..." That is, you get to choose the terms and conditions YOU follow, not the terms and conditions anyone upstream must follow.
As you note, only the copyright owner can change the license terms, but those terms are "GPLv2 or any later version". The terms of the license then give any downstream conveyor the option of choosing the terms of its conveying, with that scope.
They're involved in the distribution Posted Jul 10, 2007 5:35 UTC (Tue) by rickmoen (subscriber, #6943) [Link] sepreece wrote:quoting an FSF FAQ:] "When you convey GPLed software, you must follow the terms and conditions of one particular version of the license. When you do so, that version defines the obligations you have. If users may also elect to use later versions of the GPL, that's merely an additional permission they haveit does not require you to fulfill the terms of the later version of the GPL as well." This not only doesn't contradict what I was saying, but also directly supports it. You're just not reading it carefully. It's saying that a user who receives a GPL-covered instance of codebase, that offers a choice of which licence version to receive it under, must pick one (with its consequent set of rights and duties). (FSF's implication that the user must elect which licence version at the time of receipt, as opposed to later, and may not change his/her mind, is unsupported and one may reasonably doubt that. As I pointed out, above, FSF has had a habit of exceeding the facts, in its online claims.) However, in redistributing a GPL-licensed codebase instance, the redistributor has no options whatsoever about licensing, since that is a statutory monopoly of the copyright owner: The redistributor must pass along exactly what licensing terms the copyright owner attached to that codebase instance. If those terms are "GPLv2 or any later version", then that's exactly what the downstream copies must continue to say, and what terms must be extended to further recipients. So, for example, let's say tomorrow I go buy a copy of Microsoft Windows 2003 Server, which includes Services for Unix (Interix) version 5.2. That, in turn, includes gcc (as part of the Interix GNU SDK, unless that's been changed recently), whose licensing terms are (of course) assigned by the copyright holder, Free Software Foundation, which terms are specified as "GPLv2 or any later version". I open the shrinkwrap, I note the presence of gcc, and I elect to receive it under GPLv3. Now, Microsoft Corporation can kick, scream, leave the toilet seat up, deny it's a party to sundry licences against all logic, etc., all it wants. It can elect for its own part to receive its own gcc copies under GPLv2 for purposes of defining its rights and duties. However, the copies they include in Windows 2003 Server are absolutely going to need to replicate FSF's chosen licensing, for the simple reason that FSF is the copyright owner, and Microsoft Corporation is not. That says, quite clearly that someone distributing "GPLv2 or later" gets to choose which version to distribute under.... No, sir. It does not say that. Read more carefully. ...and that choice determines the distributor's obligations under the license. Whereas, this half of your sentence is correct. The recipient has the same privilege, with respect to its use and re-distribution, but cannot apply any obligations upstream other than those the software was conveyed under. If you were correct, then any redistributor of a "GPLv2 or, at your option, any later version" work would have the privilege of relicensing all downstream copies of himself/herself, by deleting half of the licensing options. Think, sir. That's absurd. That's not the way it works. Only the copyright owner has the prerogative of decreeing what licensing terms shall be available for any instance of his creation. That is, you get to choose the terms and conditions YOU follow, not the terms and conditions anyone upstream must follow. You should likewise read what I write more carefully: I nowhere claimed that a downstream recipient has any ability to determine what terms the upstream distributor may accept his/her copies under. I've been abundantly clear about that: You've not been listening very well. To return to my gcc example: FSF publishes that code, attaching "GPLv2 or, at your option, any later version" terms to it (with "your" meaning the receiving user's); Microsoft Corporation picks that up, elects GPLv2 for its own instance (and thus electing the corresponding rights and duties towards upstream party FSF), and then redistributes gcc to further recipients such as me, as part of Windows 2003 Server, necessarily passing along all licensing terms dictated by the copyright owner. As a lawful recipient, I read what licensing options are available, and elect GPLv3. Now, in that illustrative example, exactly as I said, I would be accepting a GPLv3-covered third-party codebase from Microsoft Corporation in its role as redistributor, as of 2007-07-10. Having redistributed GPLv3-covered code would then have legal ramifications for Microsoft Corp. Would I be "choosing the terms and conditions upstream must follow"? Not at all. Upstream has in fact elected to receive its copies of the codebase under GPLv2, and I as a further recipient had absolutely no say in that. However, its equally true that Microsoft Corporation, as redistributor, had absolutely no say in my options for licensing. In both cases, those options were dictated by the copyright holder, the only party entitled to make that decision. The terms of the license then give any downstream conveyor the option of choosing the terms of its conveying, with that scope. Not of conveying, because then the redistributor would be relicensing, which you (echoing me) just got through saying only the copyright owner may do. The licence terms give the downstream redistributor the option of choosing the terms for its receiving of the code for itself. Read the licence. That's what it says. And that's what obvious requirements of copyright law make inevitable. Rick Moen
They're involved in the distribution Posted Jul 10, 2007 13:49 UTC (Tue) by dark (subscriber, #8483) [Link] Actually, that word "receiving" which you emphasize so much does not occur in clause 9 of the GPLv2. That clause simply says "...you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation". Now, when do such terms and conditions apply? Clause 0 sheds some light on this: "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope."Thus, no terms or conditions apply to the act of receiving this software. They do apply to copying, distribution, and modification. Distribution is what we are concerned with in your illustrative example. Microsoft distributes gcc and elects to follow the terms and conditions of the GPLv2 in doing so. If Microsoft distributes to you, it must follow clauses 1, 2, and 3 (as applicable) of the GPLv2. Once it has done so, it has satisfied all its obligations to the copyright holder. Now you receive your copy of gcc via Microsoft. Microsoft has a license, the GPLv2, for distributing it to you, and you do not need a license to receive it (as clause 5 makes clear). However, you do have a license if you want it: clause 6 states that you get a GPLv2 license directly from the original licensor, in this case the FSF. If you accept that license, then you get the option under clause 9 of following the terms and conditions of the GPLv3 instead. Microsoft isn't even involved in that option, it's an option you get from the original licensor and it covers your right to copy, distribute, or modify.
They're involved in the distribution Posted Jul 10, 2007 18:41 UTC (Tue) by rickmoen (subscriber, #6943) [Link] "dark" wrote:Thus, no terms or conditions apply to the act of receiving this software. They do apply to copying, distribution, and modification. You are correct that it is not necessary to have a licence in order to merely receive software in a lawful fashion -- or to run it, for that matter (permission for that being implied in the manner of distribution). And indeed you've listed most of the copyright-reserved rights for which one must have permission. Use of those rights following literal I-took-a-copy-from-you receipt are what I was was intending to speak of. (I apologise for my poor choice of word.) For example, Microsoft Corporation in creating the GNU SDK for Interix needed the right to create derivative works; in distributing the SDK, it needed the right of redistribution. Both of those are available to them by opting to accept their copy under GPLv2, but not, as we both said, if they decline the licensing terms entirely, which would leave them only with the implied right to possess and run gcc. Microsoft isn't even involved in that option.... It's involved in the physical conveyance of the copy, and therein lay our discussion. If you believed "sepreece", Microsoft would have (somehow) gained the prerogative of stripping the "at your option, any later version" terms from the copy they pass downstream to me. My point is that "sepreece" is mistaken; that Microsoft lacks that option: It is obliged to pass along the copyright holder's conditions unaltered, which I as a lawful recipient am thus entitled to invoke. When I have done so, if I elect to accept GPLv3 conditions as applying to my instance of gcc (in order to gain the rights of modification, redistribution, etc.), I've demonstrably accepted a piece of GPLv3-covered FSF software from Microsoft Corporation. Now, Microsoft in those circumstances might try to assert that they had nothing to do with the GPLv3-ness of my software instance; that that is solely a matter between me and FSF, and that they are not a party to the transaction, and nowhere have consented to that licence. That might prevail, and it might not. Good luck with that, guys. Rick Moen
They're involved in the distribution Posted Jul 10, 2007 20:50 UTC (Tue) by sepreece (subscriber, #19270) [Link] "When I have done so, if I elect to accept GPLv3 conditions as applying to my instance of gcc (in order to gain the rights of modification, redistribution, etc.), I've demonstrably accepted a piece of GPLv3-covered FSF software from Microsoft Corporation."
No, you have received a piece of "GPLv2 or any later version" software, which is critically different from "a piece of GPLv3-covered software".
Suppose, for a moment, GPLvn required that distribution be only in CD format and version GPLvn+1 required that distribution be only in DVD format. Someone conveying could choose which set of terms to follow and, therefore, which format had to be provided. You, as recipient, would have no right to insist on any format other than what the distributor chose to provide.
And that's the way it goes with the patent clauses. GPLv2 carries different patent license/covenant conditions than GPLv3. The distributor chooses which apply to a particular distribution. The recipient is stuck with what the distributor chose.
There is no reason to assume that Microsoft has distributed any software *under the terms of GPLv3*.
They're involved in the distribution Posted Jul 10, 2007 22:54 UTC (Tue) by rickmoen (subscriber, #6943) [Link] "sepreece" wrote:No, you have received a piece of "GPLv2 or any later version" software, which is critically different from "a piece of GPLv3-covered software". It is critically different in some other contexts, but not this one, which specifically concerned which of those two options I elected in the hypothetical. It's difficult to fathom how you could possibly have missed my meaning. I suspect you're somehow still hung up on your prior misconception that I'd claimed downstream recipients can dicatate what licensing applies upstream, which of course I said absolutely nowhere at all. But, regardless of where this bizarre interpretation is coming from, our discussion is logically at an end, for reasons detailed below. The distributor chooses which apply to a particular distribution. To the contrary: The redistributor has no such discretion, as setting licensing terms is by law the copyright owner's monopoly. On that extremely key point, we apparently have no common grounds for discussion. You state that redistributors can pass along to downstream only the one of two licensing options specified by the codebase owner; I say that this interpretation is clearly contrary to fundamental copyright law. There is no point in further discussion, I think. Rick Moen
They're involved in the distribution Posted Jul 11, 2007 1:13 UTC (Wed) by sepreece (subscriber, #19270) [Link] Perhaps not.
Note that I did not say that the redistributor passes along only certain rights. In fact, I said the opposite - the recipient gets to choose between the available license versions to determine what rights, otherwise reserved to the copyright holder, the license grants to the recipient.
As you say, the redistributor does not get to "set the terms for the distribution"; the copyright holder does that. However, if the copyright holder used the "or any later version" language, the redistributor gets to *choose* between the available alternative sets of terms. That is exactlly what the license says and the FAQ confirms.
The redistributor gets to choose one specific license version to define the terms under which it conveys the covered work. Those terms define the redistributor's obligations under the license, including the patent license implications.
Again, I do not believe that Microsoft has ever distributed a work under the terms of GPLv3, which seems to be the operative question.
They're involved in the distribution Posted Jul 11, 2007 1:25 UTC (Wed) by rickmoen (subscriber, #6943) [Link] sepreece wrote:As you say, the redistributor does not get to "set the terms for the distribution"; the copyright holder does that. However, if the copyright holder used the "or any later version" language, the redistributor gets to *choose* between the available alternative sets of terms. You're contradicting yourself. I'm sorry, but we have a fundamental difference, and my assessment is that you are also arguing with basics of copyright law. We clearly have no basis for discussion. Have a nice day. Rick Moen
They're involved in the distribution Posted Jul 11, 2007 3:19 UTC (Wed) by sepreece (subscriber, #19270) [Link] As you will; you have a nice day, too.
They're involved in the distribution Posted Jul 10, 2007 14:05 UTC (Tue) by sepreece (subscriber, #19270) [Link] I think we are largely agreeing on the terms of the license, though stating and emphasizing them slightly differently.
I think you're wrong in saying that a redistributor cannot choose the terms of the distribution. Since that distribution must be in accord with the terms and conditions of the license, the redistributor MUST choose which set of terms and conditions to satisfy.
The original question, though, was about how this affects Microsoft and whether they have "distributed GPLv3 software". I don't think that distributing "GPLv2 or any later version" is tantamount to "distributing GPLv3", regardless of it allowing the user to choose the terms she accepts it under.
That is, the "GPLv2 or any later" option allows the redistributor to choose which version's terms it has to satisfy in further conveying and then allows the recipient to choose which version's terms govern its use and further conveying. Each conveyor and each recipient is free to make that choice because the copyright holder granted them permission to do so.
The point of my comments on "obligations" is that the impact on Microsoft (for instance, with respect to patents) would be an obligation, and therefore would not be affected by the user's choice of GPLv2 or GPLv3. I assumine that in conveying "GPLv2 or any later version" software, Microsoft would choose to follow the terms and conditions of GPLv2, which the license explicitly allows them to do.
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