They're involved in the distribution
Posted Jul 9, 2007 19:13 UTC (Mon) by rickmoen
In reply to: They're involved in the distribution
Parent article: Microsoft's proclamation on GPLv3
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".
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