[copyleft-next] Comments on 0.1.1

Richard Fontana fontana at sharpeleven.org
Sat Feb 16 02:36:44 UTC 2013


On Thu, Feb 14, 2013 at 08:51:02AM -0800, Luis Villa wrote:
> On Thu, Feb 14, 2013 at 8:44 AM, Pamela Chestek <pchestek at gmail.com> wrote:
> > On Thu, Feb 14, 2013 at 11:38 AM, Luis Villa <luis at tieguy.org> wrote:
> >> On Mon, Feb 11, 2013 at 9:42 AM, Mike Linksvayer <ml at gondwanaland.com> wrote:
> >>>
> >>> I see
> >>>
> >>>    This License does not exclude or limit any rights You have under
> >>>    applicable copyright [-doctrines of fair use, fair dealing or other-]
> >>> [-   equivalents.-] {+law.+}
> >>
> >>
> >> I have not had time to review the entire license (have been on
> >> vacation, and CC 4.0 beta 3 is also in need of my eyeballs) but I
> >> would say that, while this change is correct in some sense, it makes
> >> the license less readable for non-lawyers, who would have no idea what
> >> this section refers to, and so might be unable to take advantage of
> >> it. I might suggest:
> >>
> >> "applicable law, such as fair use, fair dealing, or other equivalents."
> >
> > The purpose was to be more inclusive than just fair use and the
> > equivalents, because there are so many statutory defenses - libraries,
> > churches, first sale, etc., etc. That's why the reference to fair use
> > was removed.  I believe a later suggestion, that Richard agreed with,
> > was to even talk out the word "copyright," which would leave room for
> > contract-based defenses, etc.

I was actually thinking specifically of patent-based ones there. For a
long time I was preserving in this paragraph a sentence at the end of
GPLv3 section 11:

  Nothing in this License shall be construed as excluding or limiting
  any implied license or other defenses to infringement that may
  otherwise be available to you under applicable patent law.

> >  I liked "This License does not exclude
> > or limit any rights You have under applicable law" because it
> > expresses that we're not trying to take away anything with the
> > license, just grant some rights.
> 
> Sure, I completely see and agree with all of that, which is why my
> suggestion also dropped "copyright" and makes the specifically
> enumerated rights (from CC and MPL) into merely a list of examples of
> "applicable law." I'm just saying that without some "such as" examples
> the language would be completely opaque and useless to a non-lawyer.

The problem with the earlier version (which I think I took directly
from MPL 2.0 but there's a similar clause in GPLv3) is that it
suggests to me that it only covers "fair use or whatever the local law
counterpart to it is". Referencing both 'fair use' and 'fair dealing'
but nothing else specifically, and the use of "equivalents", compels
this interpretation, to me.

That might not be the intent of the MPL 2.0 clause. However, it *is*
the intent of the corresponding GPLv3 clause:

  This License acknowledges your rights of fair use or other
  equivalent, as provided by copyright law.

I think it was Axel Metzger who proposed to FSF counsel that this
sentence should be expanded to cover one or more additional
limitations on copyright, particularly first sale.  FSF counsel
resisted this suggestion. I think the inclusion of this clause in
GPLv3 at all is accurately described as 'begrudging'.

My sense is that during some time that preceded my joining SFLC,
questions had been raised by some (I'm vaguely thinking of this as
some set including anti-maximalist copyright academics and EFF
supporters as well as, perhaps, some debian-legal types) about whether
GPLv2 was suboptimal in failing to explicitly address fair use. It was
apparently argued that the failure to mention fair use was dangerous
because it could be taken to mean that GPL licensees lost their fair
use defenses.

Looking back on it now, with several years of real-world experience in
this area, I will only say that this seems odd to me. 

The question, anyway, is who is the audience of this clause. I don't
really know. If it's the same interest groups who complained to the
FSF in the past about the dangers of failing to mention fair use
(despite the fact that most other free software licenses fail to
mention fair use -- this is a good example of how the GPL is or was
held to a higher standard than other free software licenses), I
*think* those groups would understand that this clause is a useful
generalization of the fair use clause of GPLv3.

- RF





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