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www/licenses gplv3-the-program.html
From: |
Brett Smith |
Subject: |
www/licenses gplv3-the-program.html |
Date: |
Tue, 15 Jan 2008 20:59:53 +0000 |
CVSROOT: /web/www
Module name: www
Changes by: Brett Smith <brett> 08/01/15 20:59:53
Added files:
licenses : gplv3-the-program.html
Log message:
New statement about GPLv3 interpretation. This was inspired by
questions
from a number of different lawyers, written mostly by Fontana with
edits by
RMS and I.
CVSWeb URLs:
http://web.cvs.savannah.gnu.org/viewcvs/www/licenses/gplv3-the-program.html?cvsroot=www&rev=1.1
Patches:
Index: gplv3-the-program.html
===================================================================
RCS file: gplv3-the-program.html
diff -N gplv3-the-program.html
--- /dev/null 1 Jan 1970 00:00:00 -0000
+++ gplv3-the-program.html 15 Jan 2008 20:59:40 -0000 1.1
@@ -0,0 +1,284 @@
+<!--#include virtual="/server/header.html" -->
+<title>What does "the Program" mean in GPLv3?</title>
+<!--#include virtual="/server/banner.html" -->
+<h2>What does "the Program" mean in GPLv3?</h2>
+
+<h3>Summary</h3>
+
+<p>In version 3 of the GNU General Public License (GPLv3), the term "the
+Program" means one particular work that is licensed under GPLv3 and is
+received by a particular licensee from an upstream licensor or
+distributor. The Program is the particular work of software that you
+received in a given instance of GPLv3 licensing, as you received it.</p>
+
+<p>"The Program" cannot mean "all the works ever licensed
+under GPLv3"; that interpretation makes no sense, because "the
+Program" is singular: those many different programs do not constitute
+one program.</p>
+
+<p>In particular, this applies to the clause in section 10, paragraph 3
+of GPLv3 which states</p>
+
+<blockquote><p>[Y]ou may not initiate litigation (including a cross-claim or
+ counterclaim in a lawsuit) alleging that any patent claim is
+ infringed by making, using, selling, offering for sale, or importing
+ the Program or any portion of it.</p></blockquote>
+
+<p>This is a condition that limits the ability of a GPLv3 licensee to
+bring a lawsuit accusing the particular GPLv3-covered software
+received by the licensee of patent infringement. It does not speak to
+the situation in which a party who is a licensee of GPLv3-covered
+program A, but not of unrelated GPLv3-covered program B, initiates
+litigation accusing program B of patent infringement. If the party is
+a licensee of both A and B, that party would potentially lose rights
+to B, but not to A.</p>
+
+<p>Since software patents pose an unjust threat to all software
+developers, all software distributors, and all software users, we
+would abolish them if we could. Indeed, we campaign to do so. But we
+think it would have been self-defeating to make the license conditions
+for any one GPL-covered program go so far as to require a promise
+to never attack any GPL-covered program.</p>
+
+<h3>Further analysis</h3>
+
+<p>GPLv3 defines "the Program" as follows:</p>
+
+<blockquote><p>"The Program" refers to any copyrightable work
+ licensed under this License.</p></blockquote>
+
+<p>Some have contended that this definition can be read to mean all
+GPLv3-licensed works, rather than the one particular GPLv3-licensed
+work received by a licensee in a given licensing context. These
+readers have expressed particular concern about the consequences of
+such an interpretation for the new patent provisions of GPLv3,
+especially the patent termination condition found in the third
+paragraph 10 and the express patent license grant made by upstream
+contributors under the third paragraph of section 11. This overbroad
+reading of "the Program" is incorrect, and contrary to our intent as
+the drafters of GPLv3.</p>
+
+<p>The word "any" is susceptible to multiple, subtly different
+shades of meaning in English. In some contexts, "any" means
+"every" or "all"; in others, including the definition
+of "the Program" in GPLv3, it suggests "one particular
+instance of, selected from many possibilities". This variability has
+to be resolved by the context. This context resolves it, but it requires
+some thought.</p>
+
+<p>We could have worded the definition of "the Program"
+differently, such as by using "a particular" instead of
+"any", but that would not have eliminated the need for thought.
+The phrase "a particular work licensed under this License",
+regarded in isolation, would not necessarily signify *the* particular work
+received by a particular "you" in a particular act of licensing
+or distribution. Our review of other free software licenses shows that
+they raise similar issues of interpretation, with words of general
+reference used in order to facilitate license reuse.</p>
+
+<p>Given that no choice is so clear that all other candidate meanings
+must be rejected, "any" has certain advantages. It is a somewhat
+more informal and less legalistic usage than the possible
+alternatives, an appropriate register for the developers reading
+and applying the license. Moreover, the usage of "any", through
+its suggestion of selection out of many qualifying possibilities,
+has the effect of emphasizing the reusability of GPLv3 for
+multiple works of software and in multiple licensing situations.
+The GNU GPL is intended to be used by many developers on their programs
+and that too needs to be clear.</p>
+
+<p>The same use of "any" that has given rise to interpretive
+concerns under GPLv3 exists in GPLv2, in its corresponding definition.
+Section 0 of GPLv2 states:</p>
+
+<blockquote><p>This License applies to any program or other work which
+ contains a notice placed by the copyright holder saying it may be
+ distributed under the terms of this General Public License. The
+ "Program", below, refers to any such program or work, and a
+ "work based on the Program" means either the Program or any
+ derivative work under copyright law ....</p></blockquote>
+
+<p>However, it has always been the understanding of the FSF and others in
+the GPL-using community that "the Program" in GPLv2 means the
+particular GPL-covered work that you receive, before you make any
+possible modifications to it. The definition of "the Program" in
+GPLv3 is intended to preserve this meaning.</p>
+
+<p>We can find no clause in GPLv3 in which applying the suggested broad
+interpretation of "the Program" (and the superset term
+"covered work") would make sense or have any practical
+significance, consistent with the wording of the clause and its drafting
+history. The patent provisions of GPLv3 are a case in point.</p>
+
+<p>The third paragraph of section 11 states:</p>
+
+<blockquote><p>Each contributor grants you a non-exclusive, worldwide,
+ royalty-free patent license under the contributor's essential patent
+ claims, to make, use, sell, offer for sale, import and otherwise run,
+ modify and propagate the contents of its contributor
+ version.</p></blockquote>
+
+<p>A "contributor" is defined as "a copyright holder who
+authorizes use under this License of the Program or a work on which the
+Program is based."</p>
+
+<p>The broad reading of "the Program", it has been suggested,
+gives rise to an unreasonably broad patent license grant. The reasoning is
+that, for a given GPLv3 licensee, the set of contributors granting patent
+licenses becomes all GPLv3 licensors of all GPLv3-covered works in the
+world, and not merely licensors of the specific work received by that
+licensee in a particular act of licensing.</p>
+
+<p>Close attention to the wording of the patent license grant, however,
+shows that these concerns are unfounded. In order to exercise the
+permissions of the patent license grant, a GPLv3 licensee must have
+"the contents of [the contributor's] contributor version" in his
+possession. If he does, then he is necessarily a recipient of that
+material, licensed to him under GPLv3.</p>
+
+<p>Therefore, contributors are always the actual copyright licensors of the
+material that is the subject of the patent license grant. The user
+benefiting from the patent license grant has ultimately received the
+material covered by the grant from those contributors. If it were
+otherwise, the patent license grant would be meaningless, because the
+exercise of its permissions is tied to the contributor's "contributor
+version". The contributors and the section 11 patent licensee stand
+in a direct or indirect distribution relationship. Therefore, section 11,
+paragraph 3 does not require you to grant a patent license to anyone who is
+not also your copyright licensee. (Non-contributor redistributors remain
+subject to applicable implied patent license doctrine and to the special
+"automatic extension" provision of section 11, paragraph 6.)</p>
+
+<p>There is similarly no basis for the broad reading of "the
+Program" when one considers the patent-related clause in the third
+paragraph of section 10. This clause provides:</p>
+
+<blockquote><p>[Y]ou may not initiate litigation (including a cross-claim
+ or counterclaim in a lawsuit) alleging that any patent claim is infringed
+ by making, using, selling, offering for sale, or importing the Program or
+ any portion of it.</p></blockquote>
+
+<p>Coupled with the patent license grant of section 11, paragraph 3, and
+the termination clause of section 8, this section 10 clause gives rise
+to a patent termination condition similar in scope to that contained
+in the Apache License version 2.0.</p>
+
+<p>The FSF sympathizes with the intent of broad patent retaliation
+clauses in some free software licenses, since the abolition of
+software patents is greatly to be desired. However, we think that
+broad patent retaliation provisions in software licenses are unlikely
+to benefit the community, especially those clauses which can be
+triggered by patent litigation concerning other programs unrelated to
+the software whose license permissions are being terminated. We were
+very cautious in taking steps to incorporate patent retaliation into
+GPLv3, and the section 10, paragraph 3 clause is intended to be
+narrower than patent retaliation clauses in several other well-known
+licenses, notably the Mozilla Public License version 1.1, with respect
+to termination of patent licenses.</p>
+
+<p>If the suggested interpretation of "the Program" applied to the
+section 10, paragraph 3 clause, the result would be a radical
+departure from our consistent past statements and policies concerning
+patent retaliation, which we clearly did not intend.</p>
+
+<p>Other text in GPL version 3 shows the same policy. The patent
+litigation clause in section 10 was added to Draft 3 of GPLv3 as a
+replacement for part of the previous clause 7(b)(5) (in Draft 2).
+Clause 7(b)(5) permitted the placement of two categories of patent
+termination provisions on GPLv3-licensed works:</p>
+
+<blockquote><p>terms that wholly or partially terminate, or allow
+ termination of, permission for use of the material they cover, for a user
+ who files a software patent lawsuit (that is, a lawsuit alleging that
+ some software infringes a patent) not filed in retaliation or defense
+ against the earlier filing of another software patent lawsuit, or in
+ which the allegedly infringing software includes some of the covered
+ material, possibly in combination with other software
+ ....</p></blockquote>
+
+<p>Section 7 does not state the GPL's own policy; instead it says how far
+other compatible licenses can go. Thus, that text in section 7 would
+not have established broad patent relatiation; it only would have
+permitted combining GPL-covered code with other licenses that do such
+broad patent relatiation.</p>
+
+<p>Nonetheless, as explained in the Rationale for Draft 3, such broad
+retaliation was criticized because it could apply to software patent
+lawsuits in which the accused software was unrelated to the software
+that was the subject of the license. Seeing that there were no widely
+used licenses with which this would provide compatibility, in draft 3
+we dropped broad patent retaliation from the range of GPL
+compatibility.</p>
+
+<p>We did so by replacing 7(b)(5) with text in section 10, in which we
+kept only what corresponded to the second category. The first
+category therefore reverted to being a GPL-incompatible "further
+restriction" in Draft 3, and likewise in GPL version 3 as actually
+published.
+</p>
+
+<p><a href="/licenses/gpl-faq.html">Return to the FAQ</a></p>
+
+</div><!-- for id="content", starts in the include above -->
+<!--#include virtual="/server/footer.html" -->
+<div id="footer">
+
+<p>
+Please send FSF & GNU inquiries to
+<a href="mailto:address@hidden"><em>address@hidden</em></a>.
+There are also <a href="/contact/">other ways to contact</a>
+the FSF.
+<br />
+Please send broken links and other corrections or suggestions to
+<a href="mailto:address@hidden"><em>address@hidden</em></a>.
+</p>
+
+<p>
+Please see the
+<a href="/server/standards/README.translations.html">Translations
+README</a> for information on coordinating and submitting
+translations of this article.
+</p>
+
+<p>
+Copyright © 2007 Free Software Foundation, Inc.,
+</p>
+<address>51 Franklin St, Fifth Floor, Boston, MA 02110, USA</address>
+<p>Verbatim copying and distribution of this entire article are
+permitted worldwide, without royalty, in any medium, provided this
+notice, and the copyright notice, are preserved.
+</p>
+
+<p>
+Updated:
+<!-- timestamp start -->
+$Date: 2008/01/15 20:59:40 $
+<!-- timestamp end -->
+</p>
+</div>
+
+<div id="translations">
+<h4>Translations of this page</h4>
+
+<!-- Please keep this list alphabetical. -->
+<!-- Comment what the language is for each type, i.e. de is German. -->
+<!-- Write the language name in its own language (Deutsch) in the text. -->
+<!-- If you add a new language here, please -->
+<!-- advise address@hidden and add it to -->
+<!-- - /home/www/bin/nightly-vars either TAGSLANG or WEBLANG -->
+<!-- - /home/www/html/server/standards/README.translations.html -->
+<!-- - one of the lists under the section "Translations Underway" -->
+<!-- - if there is a translation team, you also have to add an alias -->
+<!-- to mail.gnu.org:/com/mailer/aliases -->
+<!-- Please also check you have the 2 letter language code right, cf. -->
+<!-- <URL:http://www.w3.org/WAI/ER/IG/ert/iso639.htm> -->
+<!-- Please use W3C normative character entities. -->
+
+<ul class="translations-list">
+<!-- English -->
+<li><a href="/licenses/gplv3-the-program.html">English</a> [en]</li>
+</ul>
+</div>
+</div>
+</body>
+</html>
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