Here's an update of what's been going on with the copyleft-next draft.
Deletion of dl-supp
The biggest change of the past week was my deletion of "dl-supp". In
an earlier commit, I moved the "anti-Tivoization" provisions derived
from the second part of GPLv3 section 6 into a supplementary document
which an initial licensor could place on a new program. I now see no
point in even having it as a supplement.
Thus, copyleft-next has no anti-Tivoization provisions, and so the
patch originally proposed by mcgrof (see
<https://lkml.org/lkml/2012/7/12/401> ) has now effectively been applied.
A lot of careful thought and discussion went into the corresponding
provisions of GPLv3. They represent the result of a difficult
compromise, and are motivated by policy goals for which I have deep
personal sympathy. I contend that they are among the best-drafted
parts of that license. The policy concern about locked-down consumer
devices with effectively nonmodifiable GPL-licensed software has
become more relevant in the years since those provisions were drafted.
Yet, with respect to GPLv3, it has been my own intuition that few
projects consciously choosing that license do so because of the
anti-Tivoization provisions. I do not have the sense that the
inclusion of these provisions in GPLv3 has had the effect of
increasing users' freedom to modify software in consumer devices they
own. To the contrary, it appears if anything to have motivated
risk-averse companies to avoid use of GPLv3-licensed software. That is
not dispositive but it is relevant. (There may be evidence to the
contrary that I am unaware of.)
I'm open to being convinced that this deletion should be reverted, but
if no one successfully convinces me, it is likely to stay deleted.
Part of what influences me is the availability of outbound (A)GPLv3
compatibility. As with the more obscure 'contractor' provision of
GPLv3 section 2, those who care strongly about these provisions will
be able to incorporate copyleft-next code in GPLv3-licensed works.
Deletion of first part of anti-anti-circumvention provision
While I currently continue to feel it is worthwhile for copyleft-next
to explicitly address anti-circumvention law, I no longer consider the
first paragraph of what was GPLv3 section 3 to be desirable.
The basic idea here was the hope that courts would be influenced by a
general declaration by the licensor that covered works are, in some
sense fundamental to the license, not 'effective technological
protection measures'. There is no known history of use of this
provision by those defending against invocation of anti-circumvention law.
This strikes me as being an inherently weak provision, but, the less
weak one assumes it is, the more problematic it becomes from a free
software perspective, since it approaches something like a field of
use restriction. That certainly is not what the FSF intended, but that
lack of intent does not make the discomfort go away.
The reason for effectively two (or three, depending on how you look at
it) anti-anti-circumvention provisions had to do with concerns about
differences between US and EU approaches to anti-circumvention law. I
consider it better to come up with one provision suitable for major
jurisdictions in which the license is likely to be granted. A
modification of the second part of what was GPLv3 section 3 is a
better basis for such a provision.
Further changes to termination
In response to discussion on the mailing list, I have changed the
EPL-inspired "reasonable time period" cure to a 30-day cure.
I have also eliminated the relatively complex "automatic termination
-> provisional automatic reinstatement -> permanent automatic
reinstatement' feature which was originally added to GPLv3 section 8
in the final draft. I have explained this in a posting to this list
made earlier today.
Deletion of liberty-or-death example
This is a noteworthy change. If people think that we need the example
given in GPLv3 section 12, let me know.
There are a few outstanding merge requests that I hoped to attend to
after returning from a couple of weeks dominated by conference-related
travel, but I'm not sure I'll be able to get to them before starting
another trip this week. I probably will have only sporadic access to
email from October 24th through November 1st.
Pursuant to an email and pull request I'd like to send about the use
of "shall", I'm trying to grok Sec. 10.4.
Is the idea to remedy the line of cases that suggest that licensees
are not protected by 17 USC 117, and particularly 17 USC 117(a)(1)?
(See Part 3 of http://scholar.google.com/scholar_case?case=9093856475999715707
for something of a summary of these cases.)
Or is it something else? If so, what is it?
[git blame is not useful here because of section renumberings and the
like, and my perusal of the commit history hasn't found the actual
commit that added this text. Apologies if the commit message provided
An HBR cure summary follows:
Over dinner yesterday evening, Fontana and I discussed his desire to do
a 0.01 release of the license. I argued that "releasing" the license
will signal that the license is usable, and it's not in a usable state
yet, and therefore should not be "released" in this way. Fontana
pointed out that the release would still say: "THIS IS A DRAFT. DO NOT
USE AS A LICENSE." at the top, and that he did *not* want people to use
I responded that the only point then in a numbered release was to get
press coverage. Fontana argued he didn't really want more press
coverage for copyleft-next.
I then speculated that Fontana perhaps wanted comments from people who
wouldn't otherwise participate in a mailing list, or follow the git
master branch, or otherwise get involved until they saw a release.
Fontana said that was nearly it exactly: indicating that he viewed the
"numbered releases" of copyleft-next as similar to what the GPLv3 called
its "discussion drafts".
I teased Fontana a bit about imitating a process that he is trying to
improve, and then pointed out that what he was saying was basically that
he wanted to invite feedback from people who can't otherwise participate
in the project in the way it's designed. I even argued that perhaps
this was a "spirit violation" of the HBR, since the HBR is precisely
designed to keep away lawyers and "policy wonks" that don't understand
enough about Free Software culture to join a mailing list, or at the
very least, read a git log and/or clone a git repository to see the
current draft. I pointed out that I believed the main value of
copyleft-next as a license design project is that it keeps away that
type of person who were the primary corrupting force for GPLv3.
I then asked if there were people Fontana wanted to comment on
copyleft-next that weren't *here* already, Fontana didn't really answer,
but I did point out that if such a person exists, it's easy enough to
send them a personal invitation to clone the repository and join the
I believe this fully summarizes the only copyleft-next part of the
discussion and cures the HBR violation per HBR §2 (I am just now
proposing a pull request to number the HBR sections :). Fontana, if
I've misrepresented any part of the conversation, please correct.
Here's an update on some of what's been going on in the copyleft-next
draft since a week ago.
One of the more significant changes is a substantial simplification of
the termination section. For what are best summarized as "historical
reasons", GPLv3 has effectively two cure provisions (interestingly,
MPL 2.0's drafters chose to adapt much of the GPLv3 language). I've
replaced it with one cure period and I just refer to a "reasonable
time period" (cf. EPL 1.0) instead of the 30-day and 60-day periods of
GPLv3. I'm not convinced that it's better not to have a fixed time
period for cure, though I am convinced that a 30-day and a 60-day
provision are not both needed.
The structure of having automatic termination coupled with automatic
reinstatement upon cure is preserved. This is unusual but it reflected
concerns expressed by those active in GPL enforcement in Germany that
automatic termination facilitated enforcement under German law.
I have added a 'severability clause' which is a common feature of
contracts and is found in a number of FLOSS licenses. The FSF opted
not to have a severability clause in GPLv3 out of concern that it
could lead to unpredictable judge-made alterations of the GPL that
might frustrate basic policy objectives. The advantages of a
severability clause seem to me to outweigh this concern. (GPLv2 has a
limited severability clause in its 'liberty-or-death' section, which
was removed from GPLv3.)
I added a section at the beginning giving a 'general rule of
construction', in some ways replacing one function the GPL Preamble
ought to serve. The language here was adapted from the Preamble of
Allison Randal's experimental short GPLv3 alternative which she
drafted in 2007.
I deleted the lengthy yet narrow provision I call, for lack of a
better name, "child of downstream shielding" (GPLv3 section 11
paragraph 5). This is actually a very important provision for
historical reasons, as a guide to understanding the FSF's
interpretation of the GPL, but I believe it has proven to have little
value in the license itself. With this deletion, note that all the
patent-related provisions of GPLv3 are now gone except for the
Licensor's patent license grant (which has been restructured but, at
least as I conceive it currently, is not different in scope from the
patent license grant of GPLv3).
Sadly, vanilla copyleft-next is still over 100 lines longer than the
Apache License 2.0, but great progress has been made. :-)
Today I had a telephone conversation with Bradley Kuhn in which I
noted that copyleft-next (vanilla version) was nearly ready for its
0.01 release, the main obstacle being that the definition of "System
Library" remains undone. I suggested (though I wasn't quite this
specific) that an explicit GPL-style system library carveout from
"Corresponding Source" (or from "Derived Work") might not even be
Here's an update of what's been going on with the copyleft-next draft
during the past week:
While Bradley Kuhn's attempted resurrection of the anti-lockdown
provisions has failed, I incorporated some of his suggestions for
improvements in the definition of Corresponding Source (including a
recent change that addresses the 'know-how' issue).
I have put a "FIXME" for the System Libraries definition, as, to be
frank, all definitions of this exception in all versions of the GNU
GPL are suboptimal and if we wish to preserve this concept at all we
need to start over. (Query whether it's actually needed anyway.)
I deleted the 'rule of construction' in response to some criticism
from Luis Villa, but I might restore it in response to some of his
further comments on said deletion.
I deleted the "inbound=outbound" provision adapted from the Apache
License 2.0. I think this is difficult to draft *well* and may not be
worth the effort. In many cases, contributions to a hypothetical
copyleft-next project will be themselves 'Derived Works', and I have
argued publicly in various talks and writings that FLOSS legal culture
features the inbound=outbound custom anyway.
The patent license grant is arguably broadened from GPLv3 by referring
to 'Covered Works', although perhaps this is best seen as a
clarification. In this I was influenced by the patent license grant in
the Microsoft Public License.
I considered and discussed on the mailing list a provision that would
attempt to achieve compatibility with EPL. I ended up not including
this, though I am still open to the idea.
The anti-anti-circumvention waiver/disclaimer is clarified as
something that the initial licensor and all 'Distributors' make. At
least with the deletion of the first part of what was GPLv3 section 3,
it was not clear that the initial licensor was making the same
waiver/disclaimer as downstream parties.
I applied Luis Villa's proposal to delete the written offer option
from the object code distribution section. No one came to its defense
on the mailing list. It is gone!
In the past few days I've been experimenting, probably too much, with
rearranging sections and subsections and typographical presentation
I deleted the anti-patent-litigation condition descended from the end
of GPLv3 section 10 and replaced it with a provision closely modeled
on the patent peace provision in MPL 2.0 (and put it in the
termination section). I did so despite having some concerns about the
breadth of the MPL provision.
The old liberty-or-death provision is now reduced to one sentence in
the no-further-restrictions section.
I removed the ancient clarification that you can charge for
distribution or services, as hopefully obvious by now.
Apart from the draft, I made some modifications to the Harvey Birdman
Rule (as it is again known).
copyleft-next (ignoring ws-supp) continues to shrink: it is now at 270
lines and 1620 words. Of course, that's with the placeholder System
Libraries definition.For comparison, the Apache License 2.0 is 202
lines and 1581 words.
The Object Code Distribution section makes up about one quarter of
The following is a Harvey Birdman Rule conversation disclosure.
At LinuxCon, Fontana and I were discussing his change in:
Author: Richard Fontana <fontana2012(a)gmail.com>
Date: 2012-07-05 18:44:45 -0400
Wherein he removes the acceptance clause entirely from copyleft-next. I
argued briefly that perhaps the acceptance clause was useful, because it
allowed a contract claim to more easily be brought when copyright
infringement has occurred (basically as a secondary cause of action
and/or legal claim, which could be argued in the alternative of
Ultimately, I agreed with Fontana that perhaps the acceptance provision
isn't terribly useful from an enforcement perspective, because copyright
law gives us all the tools we need, and we don't get specifically an
additional enforcement claim simply because the entity engaged in
activities governed by copyright law is reminded of their obligations
and that they have no other license.
However, this question probably deserves more study, as if there is some
additional benefit that GPLv2 and GPLv3 families of licenses are getting
from having an acceptance clause, then one should also be present in
In particular, Fontana notes that it might be possible that the
acceptance clause is doing something different entirely unrelated to
bringing forth a contract claim.