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  1. <?xml version="1.0" encoding="utf-8" ?>
  2. <html>
  3. <head>
  4. <title>GPLv3 - Transcript of Eben Moglen from the third
  5. international GPLv3 conference, Barcelona; 2006-06-22</title>
  6. </head>
  7. <body>
  8. <div style="float:right;">
  9. <a href="gplv3.html"><img SRC="/graphics/gplv3-logo-red.png"
  10. ALT="GPLv3 logo" BORDER="0"
  11. WIDTH="319" HEIGHT="130" /></a>
  12. </div>
  13. <h1>Transcript of Eben Moglen at the 3nd international GPLv3
  14. conference; 22nd June 2006</h1>
  15. <p>
  16. See our <a href="gplv3.html">GPLv3 project</a> page for information
  17. on <a href="gplv3#participate">how to participate</a>. And you may
  18. be interested in
  19. our <a href="http://wike.fsfe.org/Transcripts#licences">list of
  20. transcripts on GPLv3 and free software licences</a>.
  21. </p>
  22. <p>The following is a transcript of Eben Moglen's presentation
  23. made at
  24. the <a href="/campaigns/gplv3/europe-gplv3-conference.html">third
  25. international GPLv3 conference</a>, organised by FSFE in Barcelona.
  26. The conference page has materials from the other presentations.
  27. </p>
  28. <p>Please support work such as this by
  29. joining <a href="http://fellowship.fsfe.org/">the Fellowship of FSFE</a>,
  30. and by encouraging others to do so. Transcription of this
  31. presentation was undertaken by Giacomo Poderi and Cristian Rigamonti
  32. with checking by Ciaran O'Riordan. The video was made and processed by Sean Daly.</p>
  33. <p>Eben Moglen is General Counsel of the Free Software Foundation (a
  34. sister organisation of FSFE), and is the Chairman of Software
  35. Freedom Law Centre.</p>
  36. <p>Video and audio recordings are available:</p>
  37. <ul>
  38. <li>Audio: <a href="fsfe-gplv3-eben-moglen.vorbis.ogg.torrent">http://fsfeurope.org/campaigns/gplv3/fsfe-gplv3-eben-moglen.vorbis.ogg.torrent</a></li>
  39. <li>Video: <a href="fsfe-gplv3-eben-moglen.theora.ogg.torrent">http://fsfeurope.org/campaigns/gplv3/fsfe-gplv3-eben-moglen.theora.ogg.torrent</a></li>
  40. </ul>
  41. <p>The speech was made in English.</p>
  42. <h2>Presentation sections</h2>
  43. <ol>
  44. <li><a href="#begin">The presentation</a></li>
  45. <li><a href="#gates-surrender">First: Bill Gates has surrendered</a></li>
  46. <li><a href="#where-are-we">Where are we?</a></li>
  47. <li><a href="#the-process">The public process</a></li>
  48. <li><a href="#how-they-talk">How the committees discuss</a></li>
  49. <li><a href="#comments-website">How the public comments</a></li>
  50. <li><a href="#gold-example">An example high-value comment</a></li>
  51. <li><a href="#much-change">A lot has been rewritten</a></li>
  52. <li><a href="#internationalisation">Internationalisation</a></li>
  53. <li><a href="#example-decision">Example of bridging legal system differences</a></li>
  54. <li><a href="#propagation">Propagating and conveying software</a></li>
  55. <li><a href="#derivative">No more reliance on &quot;derivative works&quot;</a></li>
  56. <li><a href="#proliferation">Fixing licence proliferation</a></li>
  57. <li><a href="#lgpl">LGPL, like merging electronic weak</a></li>
  58. <li><a href="#patents">The patents issue</a></li>
  59. <li><a href="#drm">The DRM issue - it's all about software</a></li>
  60. <li><a href="#afterward">What happens after the process</a></li>
  61. </ol>
  62. <h2>Questions and Answers session sections</h2>
  63. <ul>
  64. <li><a href="#q1-permissions-and-restrictions">Differentiating restrictions from permissions</a></li>
  65. <li><a href="#q2-dfsg-compliance">About DFSG compliance</a></li>
  66. <li><a href="#q3-dmca-wordings">Will the DMCA-thwarting wording work?</a></li>
  67. <li><a href="#q4-what-new-dmca-wording">What will the new DMCA/EUCD thwarting words be?</a></li>
  68. <li><a href="#q5-removing-privacy-clause">Will the anti-privacy-invasion clause go?</a></li>
  69. <li><a href="#q6-lgpl-and-others">Can the LGPL technique be used to make other licences?</a></li>
  70. <li><a href="#q7-a-contract">Will the &quot;Not a contract&quot; phrase go?</a></li>
  71. <li><a href="#q8-asp-loophole">Will the &quot;ASP loophole&quot; be addressed?</a></li>
  72. <li><a href="#q9-quasi-official-translation">How about quasi-official translations?</a></li>
  73. <li><a href="#q10-ms-demise-visible">When will Microsoft's demise be palpable?</a></li>
  74. <li><a href="#q11-patent-retaliation-freedom">Do patent retaliation clauses restrict freedom?</a></li>
  75. <li><a href="#q12-contract-theory">Why do so many lawyers call GPL a contract?</a></li>
  76. </ul>
  77. <h2 id="begin">The presentation</h2>
  78. <p>
  79. [0h01m08s]
  80. </p>
  81. <p class="indent">
  82. Eben Moglen: So, I'm Eben Moglen, I'm a lawyer who works on the
  83. production of freedom, mostly with the makers and distributors of Free
  84. Software and mostly at the moment for one client, whom you know.
  85. </p>
  86. <p class="indent">
  87. Because Richard was kind enough to go through the state of substantive affairs
  88. in the drafting of GPL3, I want to take time this afternoon, before answering
  89. your questions, to give some context for the effort that he described in detail.
  90. </p>
  91. <p>
  92. [0h01m58s]
  93. </p>
  94. <p class="indent">
  95. First I think I owe you as citizens of the Free Republic some more precise
  96. information about the process and its state at the present moment, and then I'd like
  97. to talk a little bit about the larger aspects of our life in the Free Republic
  98. into which GPL3 fits.
  99. </p>
  100. <p id="gates-surrender">[Section: First: Bill Gates has surrendered]</p>
  101. <p class="indent">
  102. But the first thing I think I ought to do, is to give you some news: Mr. Gates
  103. has surrendered.
  104. </p>
  105. <p>
  106. [laughter]
  107. </p>
  108. <p class="indent">
  109. And before we get all back to fighting again among ourselves, we ought
  110. at least to recognize the meaning of that step. In the United States
  111. when a major corporate executive resigns or retires there is a
  112. mandatory process of talking calm to the markets. You don't resign
  113. on less than two years notice, so as to give the feeling of orderly
  114. transition and complete control over circumstances. If, for example,
  115. the chief executive officer of the Enron corporation resigns suddenly
  116. on no notice, then that's a sign that immense trouble is immediately
  117. ahead as in that case bankruptcy was by six weeks.
  118. </p>
  119. <p>
  120. [0h03m35s]
  121. </p>
  122. <p class="indent">
  123. So for Mr. Gates to have announced that he is retiring from active service to
  124. Microsoft on two years notice, is the minimum length of time, that could have
  125. been chosen without sending the signal: Microsoft is in an acute short term
  126. trouble.
  127. </p>
  128. <p class="indent">
  129. It isn't &quot;My God! Everything is great, he's giving two years notice&quot;.
  130. It's &quot;That's the least that could have been done&quot;.
  131. </p>
  132. <p class="indent">
  133. However, this particular retirement was announced to occur approximately five
  134. months before <i>the</i> most crucial product release in ten years. So anything that
  135. leads you to believe that this is normal, ordinary, &quot;Mr. Gates promise Mr. Allen
  136. and Mr. Ballmer that he would stay at Microsoft until at least
  137. fifty, which he now is&quot; - all of that talk is irrelevant. Mr Gates last week
  138. announced his retirement on the shortest possible timeline that wouldn't spook
  139. the markets. A resignation announced six months before the shipment of the
  140. most important product in ten years. I am characterising that <i>fairly</i> When I
  141. characterise it as personal surrender.
  142. </p>
  143. <p class="indent">
  144. Even better: Mr. Gates has surrendered and is leaving the company to Mr.
  145. Ballmer. Better news for us could not have been imagined. So, that's where they
  146. are.
  147. </p>
  148. <p>
  149. [0h05m23s]
  150. </p>
  151. <p id="where-are-we">[Section: Where are we?]</p>
  152. <p class="indent">
  153. Where are we?
  154. </p>
  155. <p class="indent">
  156. We are on schedule with the most important work we have done, in fifteen years.
  157. Anybody who thinks that Mr. Stallman's retirement is about to be announced
  158. wasn't here this morning. He's fifty four, Mr. gates is fifty, Mr. Gates has quit
  159. and left the field to younger men, like Mr. Stallman.
  160. So here we are, in the middle of the GPL3 process which, as to timing
  161. at any rate, seems to be going on at the right moment.
  162. </p>
  163. <p class="indent">
  164. As you all know we released a first discussion draft in January at MIT.
  165. We said: &quot;it's a discussion draft, we are listening carefully to
  166. what people may want to say about it&quot; and we convened a large and, admittedly,
  167. somewhat complicated process for listening to what people had to say.
  168. </p>
  169. <p>
  170. [0h06m26s]
  171. </p>
  172. <p class="indent">
  173. The first thing that turned out to be on everybody's mind was that GPL version 2
  174. was perfect. I know that it was perfect, because everything we wanted to change
  175. they told us we shouldn't change at all. And the implication therefore was:
  176. we have been living with an absolutely perfect licence, every single change in
  177. which was a bad idea. I wasn't absolutely surprised about this. Human beings have
  178. a certain resistance to change, and I wasn't surprised that everything we
  179. proposed changing turned out they really loved in the old version.
  180. </p>
  181. <p class="indent">
  182. But it is good to know, at any rate, that GPL2 is perfect. So if anything goes
  183. wrong, and we don't do GPL3, the World will still have a perfect licence with which
  184. to work.
  185. </p>
  186. <p>
  187. [0h07m10s]
  188. </p>
  189. <p class="indent">
  190. I actually think, if I might dare to say so, after fifteen years of working with
  191. it carefully that GPL2 can be improved, and we are improving it, but it's
  192. nice to know that the world at large have come to regard it with such fondness
  193. before we start to change it.
  194. </p>
  195. <p class="indent">
  196. Within a couple of weeks, after our announcement of the draft and the process for
  197. discussing it, I began to hear rumors that we weren't really going to listen to
  198. anybody.
  199. </p>
  200. <p class="indent">
  201. Apparently we had gone to enormous amounts of works to create a worldwide process
  202. for listening to everybody solely as a sham; actually I've heard: &quot;Mr. Stallman
  203. is going to make the decisions all by himself&quot;, every once in a while I even
  204. heard people saying that I was going to make decision by myself, which if they
  205. knew Mr. Stallman they wouldn't say.
  206. </p>
  207. <p>
  208. [laughter]
  209. </p>
  210. <p class="indent">
  211. So in any event for a little while there, it looked, I suppose, to
  212. some people as though this whole grand effort to get everybody
  213. else's advice and wisdom involved, was somehow just a game we were playing.
  214. Which is, from my point of view, too bad that it's not true. If this were a game we
  215. were playing about taking everybody's opinion seriously I could get a lot more
  216. sleep, but unfortunately it's not that way.
  217. </p>
  218. <p class="indent">
  219. We actually set out to listen to everybody as carefully as we could in a context
  220. in which each kind of commentator would feel comfortable making his and her
  221. kinds of comments and the commenting on behalf of their organisations. And we've
  222. been listening extremely hard for four and half months and there's a great deal
  223. that we have learned in the course of that time.
  224. </p>
  225. <p>
  226. [0h08m46s]
  227. </p>
  228. <p id="the-process">[Section: The public process]</p>
  229. <p class="indent">
  230. I want to talk just a little bit then about that process which the world at
  231. large has seen, but only one side of.
  232. </p>
  233. <p class="indent">
  234. We made discussion committees by asking those people who joined us in
  235. Cambridge for the launch to join into committees, organized around types of
  236. social role in the process:
  237. </p>
  238. <ol>
  239. <li>
  240. vendors of commercial versions of Free Software or hardware that
  241. works with Free Software
  242. </li>
  243. <li>
  244. leadership of Free Software projects that do use GPL, that don't use GPL
  245. </li>
  246. <li>
  247. lawyers on behalf of large users, corporate officials working on
  248. behalf of corporations that are large users, public servants who are
  249. interested in public sector adoption
  250. </li>
  251. <li>
  252. individual hackers with substantial street cred whose views might be
  253. influential in helping other people to consider the licence either
  254. as one to use or as one to approve, and so on.
  255. </li>
  256. </ol>
  257. <p id="how-they-talk">[Section: How the committees discuss]</p>
  258. <p class="indent">
  259. Those committees meet in different ways, one committee consisting entirely of
  260. hackers prefers to work almost exclusively by IRC, one group consisting very
  261. largely of persons employed by major vendors tends to use large conference
  262. calls, parties use the forms of interaction which are
  263. comfortable and convenient for them, and we attempt to provide an environment
  264. in which everybody's comments can be heard and thought about with a sense of
  265. equality among participants.
  266. </p>
  267. <p>
  268. [0h10m23s]
  269. </p>
  270. <p id="comments-website">[Section: How the public comments]</p>
  271. <p class="indent">
  272. As Richard said, we created a little web services code that didn't exist before. We
  273. needed an application for allowing a very large number of people to attach
  274. comments to a single document and for the world at large to be able to see in an
  275. intuitive way, reading the text, where the comments concentrated in what level
  276. of intensity and how to click through there to get to other people's comments
  277. quickly on particular areas of interest or concern.
  278. </p>
  279. <p class="indent">
  280. I actually think that software did a pretty good job. It reduced the
  281. volume of comments, somewhat, at the cost of, or at the benefit of,
  282. greatly increased specificity in comments, because the Stet system
  283. made people go and highlight an area of text and say: &quot;this is what
  284. I'm talking about and this is what I have to say&quot; the quality of
  285. comments was very high. And the number was rendered more manageable
  286. because people didn't file, essentially, comment spam saying, I hate
  287. the whole thing or I love the whole thing, they actually went and
  288. found a place where they had something to say and said it. We had
  289. about a thousand non trivial comments from third parties not involved
  290. in the discussion process in any way, just people who used the system
  291. to register commentary of importance to them.
  292. </p>
  293. <p class="indent">
  294. In that thousand, every one of which was reviewed by somebody working
  295. on the process with me, with Richard, with David Turner, with Richard
  296. Fontana. In that process of looking at every single one of those
  297. comments I will say that at least one, maybe two or three, really
  298. important issues were seen for the first time, by somebody
  299. unaffiliated with our process in formal terms who simply had a damn
  300. good point to make which needed to be taken into account.
  301. </p>
  302. <p>
  303. [0h12m21s]
  304. </p>
  305. <p id="gold-example">[Section: An example high-value comment]</p>
  306. <p class="indent">
  307. Let me give you one example of an important issue unearthed in the
  308. public comment process which will have an effect on the second
  309. discussion draft of the licence.
  310. </p>
  311. <p class="indent">
  312. As you all know, since the beginning of the licence it has concentrated a great
  313. deal of attention on distribution as the moment at which obligations attached
  314. to your role in the free community. The assumption has always
  315. been that distribution is a one way activity. Somebody distributes, and a
  316. user receives. If binaries are being distributed, in particular, the binary
  317. distributor has an obligation to make source code available to a receiving user.
  318. </p>
  319. <p class="indent">
  320. All of this made a great deal of sense in 1991 and it probably still makes great
  321. deal of sense in 2006, but. Consider the situation of an iso image of a CD
  322. containing binaries of Free Software material under GPL being distributed
  323. among persons by BitTorrent. If you think about that scenario for just a
  324. moment you will see that in the torrent are a bunch of people &quot;distributing
  325. binaries&quot; who don't think of themselves as distributors, who think
  326. of themselves as users receiving the binary who have no source code and who
  327. haven't even got all the binary, yet. So that even if source code will later be part
  328. of the same torrent they're not guaranteed to have it and they can't pass it
  329. along.
  330. </p>
  331. <p class="indent">
  332. Under GPL2, an unaffiliated commentator said to us, this would be infringing
  333. activity, why don't you do something about that in GPL3 ?
  334. </p>
  335. <p class="indent">
  336. We looked at it and said, &quot;you know, you're right&quot;. That's a major problem. That
  337. is to say, it's not all that hard to fix, but it's a major problem not to have
  338. seen it, &quot;we are glad you brought it up&quot;.
  339. </p>
  340. <p class="indent">
  341. And we will make a few very narrow changes in the second discussion
  342. draft of GPL3 to allow for the fact that peer-to-peer models of
  343. distribution may involve ancillary transmission by people who would
  344. traditionally have been thought as receivers and they shouldn't
  345. have any obligations under the licence, because they are not actually
  346. engaged, in the sense we used to mean, in 'distribution'.
  347. </p>
  348. <p>
  349. [0h14m55s]
  350. </p>
  351. <p class="indent">
  352. That's an example an important technical issue in the changing, use and context
  353. of the licence, raised by somebody from outside the process and, as I said,
  354. there are probably two or three more of equivalently important scope that I
  355. could point to. That kind of commentary is worth its weight in gold. It is because
  356. of that kind of commentary from unaffiliated individuals that the entire process
  357. is worth maintaining, cost-what-it-will, to maintain it, to read its output, to
  358. think about every word it says, that's exactly what we were hoping for, that's
  359. exactly what we are getting.
  360. </p>
  361. <p class="indent">
  362. I have enormous respect for those people around the world, who've decided to take
  363. the time and trouble to make comments on this licence. They are doing a bang up
  364. job. As somebody who has to think about this all day every day,
  365. right now, I am immensely pleased that smart people would be willing voluntarily
  366. to take some time on it, and the quality of what we have gotten in every way
  367. demonstrates the power of the multiplied hive mind. We are
  368. getting great work out of people.
  369. </p>
  370. <p>
  371. [0h16m02s]
  372. </p>
  373. <p class="indent">
  374. This is true of the committees. [inaudible short sentence] Committee
  375. members have spent dozens of hours, in some cases hundreds of hours,
  376. working on this licence. They have spent a lot of time communicating,
  377. they have spent a lot of time refining ideas, they have spent lot of
  378. time coming up with improvements or suggestions or possible changes in
  379. language. They have been willing to do what in inter-corporate
  380. negotiations is often hard to do, they have come out and said what
  381. they wanted and said what they needed clearly and candidly, and I'm
  382. very grateful to them for doing that.
  383. </p>
  384. <p class="indent">
  385. It has made it possible for us to understand what it would take to
  386. provide a licence whose users - commercial as well as non commercial -
  387. would feel themselves protected in their rights. And that's a powerful
  388. and important task that we set to perform and that we could not
  389. perform without all the effort and time and thinking that has gone
  390. into it on other people's parts.
  391. </p>
  392. <p>
  393. [0h17m01s]
  394. </p>
  395. <p class="indent">
  396. I believe that the first several months of discussion of the first discussion
  397. draft have been beneficial to the quality of the draft in every way.
  398. </p>
  399. <p id="much-change">[Section: A lot has been rewritten]</p>
  400. <p class="indent">
  401. As you will see when it is released there are few articles that have not been
  402. substantially rewritten. I am still puzzled by people's belief that we weren't
  403. going to listen. I know that if I could release right this minute by throwing up
  404. on the screen a strike out and bold copy of the new draft,
  405. showing everything removed and everything inserted, that it would be harder for
  406. people to take seriously this claim that we weren't listening. They would see
  407. their language coming out and language going in that they would recognizes as
  408. directly responsive to public comment and to suggestion. In a few weeks that's
  409. what people will see, and I believe that that will allow us to enter the second
  410. discussion period with much more confidence on the world's part
  411. that the work that they are doing to help us improve the licence is being
  412. gratefully and thoughtfully received.
  413. </p>
  414. <p>
  415. [0h18m15s]
  416. </p>
  417. <p id="internationalisation">[Section: Internationalisation]</p>
  418. <p class="indent">
  419. In the process of revising the licence's second discussion draft, we have done
  420. more work on what I think of as the fundamental challenge in
  421. internationalisation. A question was asked this morning about
  422. translation, and translation is unquestionably one possible way of
  423. internationalising a licence. But translation is, in my judgement, at best, at
  424. best, a second best way of internationalising the licence, and, for the reasons
  425. that Richard offered this morning, a somewhat dangerous way.
  426. </p>
  427. <p class="indent">
  428. The best way of internationalising the licence, in my judgement, is to look as
  429. firmly as possible to the work done more than a hundred and ten years ago in
  430. the making of the Berne Convention. An attempt to harmonise global copyright law
  431. in the World is now more than a hundred and ten years old. The United States was
  432. late to come to Berne as a full participant in the harmonising of copyright law. That's
  433. the good part of the thing called The Digital Millenium Copyrights Act, there
  434. is a good part, trust me, not much but a little.
  435. </p>
  436. <p class="indent">
  437. And given that we are all now existing in a Berne universe, the right way of
  438. internationalising is to come as close to Berne Convention mechanisms as
  439. possible. In order to do that the one step really needed is to get out of the
  440. licence dependence on any single legal system's vocabulary or unique conceptions.
  441. And so our effort has been to genericise the way the licence does its work.
  442. </p>
  443. <p id="example-decision">[Section: Example of bridging legal system differences]</p>
  444. <p class="indent">
  445. I'll give you an example which came up in a conversation I had with
  446. Carlo Piana over lunch. One defect in the licence as seen in some
  447. countries of the world under GPL2 was that GPL2 stated that it was a
  448. perpetual licence. German speaking lawyers, for example, working in
  449. Germany, and that's only one example, said &quot;you know, our legal system
  450. really doesn't like that much in fact, in order to be valid licences
  451. need to state a term&quot;. &quot;Well, alright&quot;, we said, we understand that there
  452. are some legal systems around the world in which stating a term may be
  453. necessary or desirable in order to make a good licence.
  454. </p>
  455. <p class="indent">
  456. There are also legal systems around the world, we work in one in the United States,
  457. where making licences perpetual is the right idea, because having non exclusive
  458. licences good only for a term is an invitation to trouble.
  459. </p>
  460. <p class="indent">
  461. One way you could go at this is to translate the licence so that it says one
  462. thing in German and another thing in English, but as Mr. Stallman pointed out
  463. this morning, that's exactly the danger.
  464. </p>
  465. <p>
  466. [0h21m19s]
  467. </p>
  468. <p class="indent">
  469. Otherwise you appear to be put to a bad choice, choose one or
  470. choose the other and somebody will be unhappy with you. So the goal in modifying
  471. the licence is to do neither and still achieve the result needed by both. As you
  472. noticed, the first discussion draft said: &quot;GPL now is a licence for a term, and
  473. the term is the length of copyright on the underlying program&quot;.
  474. Perpetual so far as the copyright is, and no more perpetual than that, and can be
  475. stated as a fixed term reduceable to a number at any given moment.
  476. </p>
  477. <p class="indent">
  478. Accordingly, I hope and believe, based on the legal advice we've taken from
  479. lawyers around the world, who are helping us with this matter, we have succeeded
  480. in finessing a problem where we might have been thought to face
  481. a choice, between something that would work in system one and something that would
  482. work in in system two, but not both.
  483. </p>
  484. <p>
  485. [0h22m12s]
  486. </p>
  487. <p class="indent">
  488. The second discussion draft of the licence goes still further in that path. As
  489. Richard mentioned this morning, we have once again attempted to take vocabulary
  490. and consolidate it, so that there is a set of terms unique to GPL, all of which
  491. can be defined by relation to underlying copyright law in each individual
  492. copyright system.
  493. </p>
  494. <p id="propagation">[Section: Propagating and conveying software]</p>
  495. <p class="indent">
  496. So &quot;propagation&quot; is doing anything with the program that requires local permission
  497. on the copyright law, except running it or privately modifying it.
  498. </p>
  499. <p class="indent">
  500. &quot;Conveying&quot; it, is propagating the program in a way that makes it possible for
  501. others to make or receive copies. By using language which is not US
  502. copyright language, or anybody else's copyright language, but by stating only
  503. the relationship between licence terms of art and states of fact in the world,
  504. we think we can get rid of a large number of problems arising out of national
  505. law.
  506. </p>
  507. <p id="derivative">[Section: No more reliance on &quot;derivative works&quot;]</p>
  508. <p class="indent">
  509. I will say, therefore, the second discussion draft of GPL3 will not have any
  510. longer any dependency on the American copyright law idea of a &quot;derivative work&quot;.
  511. Accordingly we will be able to avoid another fifteen years of complaining from
  512. lawyers who quite justifiably thought the reliance on a US centric view of
  513. the derivative work was a major source of uncertainty and uneasiness. They may
  514. think that what we have done instead is not a perfect improvement, but I feel
  515. certain that there will at least be the recognition that it's a
  516. useful development.
  517. </p>
  518. <p>
  519. [0h23m54s]
  520. </p>
  521. <p class="indent">
  522. Internationalisation of the licence, as I said at the beginning, in Cambridge,
  523. goes along with the other major structural change that we wanted to make. Which
  524. Richard described this morning as we described it in January as enhanced
  525. compatibility.
  526. </p>
  527. <p id="proliferation">[Section: Fixing licence proliferation]</p>
  528. <p class="indent">
  529. I want to go back over that ground a little bit for you, in order to put the
  530. context a little more deeply around it. After Richard's discussion of enhanced
  531. compatibility this morning, a question was asked in the question
  532. period: &quot;what about licence proliferation?&quot;
  533. </p>
  534. <p class="indent">
  535. Our answer to licence proliferation, I think, I want to expand a little bit on
  536. Richard's remarks, is very straight forward now: use GPL, add the permissions
  537. that you need, if the restrictions you would have put in a different licence are
  538. restrictions compatible with GPL under the section 7, you need not make any new
  539. licence. If you don't like copyleft we can do nothing for you, but if you don't
  540. like copyleft then you should recognise licence proliferation as the necessary
  541. consequence of the non-copyleft licensing you prefer to do. In other words, ask
  542. yourselves: &quot;why has there been licence proliferation?&quot;. There has not been
  543. proliferation of copyleft licences, or rather there has been very limited
  544. proliferation of copyleft licences. There are two or three copyleft licences in
  545. the world with any significant mindshare.
  546. </p>
  547. <p class="indent">
  548. Permissive licences have multiplied all out of keeping. But it is
  549. precisely because permissive licensing has as a necessary consequence the
  550. proliferation of licences, that we are where we are.
  551. </p>
  552. <p class="indent">
  553. Parties who wanted to licence in non proliferating ways had too few choices,
  554. when there were a small number of copyleft licences and they all worked in pretty
  555. much one way only.
  556. </p>
  557. <p>
  558. [0h26m05s]
  559. </p>
  560. <p class="indent">
  561. GPL's new section 7, the enhanced compatibility provision, will allow
  562. copyleft licensing to be used more flexibly while still striking the balance in
  563. the direction of commercial usability for businesses and clarity for individual
  564. developers who want to know what licence to apply to their code. I think it
  565. makes an enormous contribution if people care to use it in that way, that's up
  566. to everybody else.
  567. </p>
  568. <p class="indent">
  569. We will have laid down an infrastructure for licence interoperation which we
  570. believe, if used fully, will have a very substantial effect in reducing
  571. proliferation over the next few years.
  572. </p>
  573. <p id="lgpl">[Section: LGPL, like merging electronic weak]</p>
  574. <p class="indent">
  575. Some comment was made this morning about the LGPL as a section 7 additional
  576. permission on top of GPL. I would have left that subject to be disclosed when we
  577. show you the drafts in a couple of weeks, but as the subject has come up, let me
  578. just say one little thing about it. That move does not change the behaviour of
  579. LGPL at all, as Richard told you this morning. We adopted a &quot;no functional
  580. change&quot; constraint in the reshaping of the licence. What it does is to allow LGPL
  581. to serve as a good example of the additional permissions structure for GPL and
  582. how powerful it is. By expressing LGPL as just an additional permission on top
  583. of GPL we simplify our licensing landscape drastically.
  584. </p>
  585. <p class="indent">
  586. It's like for physics getting rid of a force, right? We just unified
  587. electro-weak, ok? The grand unified field theory still escapes us
  588. until the document licences too are just additional permissions on top
  589. of GPL and I don't know how we ought to get there. That's gravity, it's
  590. really hard. But the physics has gotten simpler and, I think, that
  591. alone is valuable. The other thing is that the new LGPL expressed as
  592. permission will show people how to use permissions to make quite
  593. sophisticated licences very simply, and we think that also is all to
  594. the good because such licences do not proliferate, they reconvert to
  595. GPL at the instance of modifiers which is a valuable and useful
  596. property to have.
  597. </p>
  598. <p>
  599. [0h28m43s]
  600. </p>
  601. <p class="indent">
  602. That's all I want to say about the technical material in the licence, except
  603. to talk about &quot;issues&quot;. As we said at the outset there are two or
  604. three dominant issues that remain to be talked out in order to get to a
  605. consensus about the licence.
  606. </p>
  607. <p class="indent">
  608. One issue, or one group of issues has to do with the handling of patent rights.
  609. The other issue has to do with the control over software in the interest of
  610. entertainment security. I want to talk very briefly about both of those because
  611. Richard talked at length and I don't want to redo anything he said. So
  612. I'm gonna try to add only, and in questions you will take up what you think I
  613. have been too light on.
  614. </p>
  615. <p id="patents">[Section: The patents issue]</p>
  616. <p class="indent">
  617. With respect to patents, the issue has changed radically in the last
  618. couple of years. GPL version 2 is a licence that says: &quot;There's a
  619. terrible patent problem, if you don't do something about it, all hell
  620. is going to break loose sooner or later&quot;. 'Sooner or later' has come
  621. and gone and everybody knows that all hell has broken loose.
  622. </p>
  623. <p class="indent">
  624. The fundamental question now for everybody is how to invent around
  625. the patent system, through the licence, so as to achieve optimal goals
  626. for several different classes of parties. Parties who have large
  627. patents portfolios and want to contribute to the Free Software world
  628. and GPL in particular, parties who are afraid of other people's
  629. patents because they make revenues that could be the source of claims
  630. for royalties, and parties who want to develop software and are afraid
  631. of patents, not because they have commercially and significant revenue
  632. streams, but because they are afraid of the chilling effect of
  633. announcements of patents or patent licences or patent lawsuits as a
  634. way of politically inhibiting people from making desirable Free
  635. Software.
  636. </p>
  637. <p class="indent">
  638. Those are quite distinct groups, some parties, that is parties with large patent
  639. portfolios also having significant revenue streams, appear more than once in the
  640. interest group analysis of the patent problems. Each of those
  641. major industrial parties with large patent portfolios has well developed patent
  642. policies of its own and well developed positions in negotiations with other
  643. parties in the industry concerning its patent portfolios. We, although we have a
  644. certain sophistication in those conversations, having sat in them for years,
  645. have no patents and no clout in that world, usually.
  646. </p>
  647. <p>
  648. [0h31m39s]
  649. </p>
  650. <p class="indent">
  651. Right now we have some clout, because we make a licence people need. But we
  652. cannot overuse that clout, we must make a licence that people need as much as they
  653. need the one we are changing.
  654. </p>
  655. <p class="indent">
  656. The discussion about patents has been very complicated, very thick, sometimes
  657. rather heated, though those parties who have tried to apply fire
  658. to the soles of my feet have been kind enough to do it privately instead of
  659. publicly, still there has been a great deal of attempted torture.
  660. I have responded as gently as I possibly could but sometimes I have
  661. said harsh words back, too, for which I am now publicly stating that I don't
  662. regret it at all. Bargaining is bargaining; we will be done soon.
  663. </p>
  664. <p>
  665. [0h32m29s]
  666. </p>
  667. <p class="indent">
  668. I believe that great progress has been made among the patent holders
  669. in understanding what they need, what they need collectively, as well
  670. as individually and what represents good outcomes from the Free
  671. Software Foundation position in this matter. We have considered a
  672. number of changes to the statements contained in the first discussion
  673. draft about patents, we have listened exceedingly carefully to
  674. everybody who had anything to say on that subject, whether they were
  675. patent holders or not, and we think we have proposals to make, in the
  676. near future, that will be very helpful in resolving these issues. Once
  677. those issues are resolved we need movement on other questions too.
  678. </p>
  679. <p>
  680. [0h33m13s]
  681. </p>
  682. <p id="drm">[Section: The DRM issue - it's all about software]</p>
  683. <p class="indent">
  684. Which brings us to the subject of Richard's major address this
  685. morning, the problem of Digital Restrictions over code.
  686. </p>
  687. <p class="indent">
  688. People have tended to think of this as though Richard was trying to
  689. cram down their throat a replacement word for what they were doing. Companies
  690. that make entertainment content, think they have digital rights, and that they
  691. should be allowed to manage their digital rights.
  692. </p>
  693. <p class="indent">
  694. I have no stake in that, in one way or another, as private citizen I have real
  695. strong feelings about that. But my role right now is to be a lawyer for the Free
  696. Software movement, and as a lawyer for the Free Software movement I have nothing
  697. to do with music and nothing to do with movies. I don't represent the Free Music
  698. Foundation, I don't represent the Free Movie Foundation. I represent people
  699. care about making Free Software, and for them Mr. Stallman is quite right. What
  700. are Digital Rights Management issues to the entertainment
  701. companies are simply Restrictions Management to us.
  702. </p>
  703. <p class="indent">
  704. Because what is restricted is the right to make our software the way we make
  705. our software. That restriction is set to follow from somebody's use of
  706. his own rights over his own copyrighted works, music and movies, but
  707. that means nothing to us. Not because we think there shouldn't be copyright on
  708. music or movies or because we think sharing should be free, whatever it is.
  709. That's all irrelevant.
  710. </p>
  711. <p class="indent">
  712. You will hear a lot of talk about DRM in which it is suggested that we are
  713. somehow trying to use a software licence to address non software issues. Nothing
  714. could be further from the truth: we are addressing a software issue.
  715. </p>
  716. <p class="indent">
  717. Is GPL'd software being distributed in a way which would be illegal, if
  718. the licence were being evaded, and which is solely regarded as legal
  719. because the licence evasion is technically implemented.
  720. </p>
  721. <p>
  722. [0h35m20s]
  723. </p>
  724. <p class="indent">
  725. If I sell you a computer containing software under GPL, let's say I make a
  726. digital video recorder, let's say I call it TiVo. And I sell it to you and I
  727. say: &quot;there's GPL'd software in here, here is the source code. The only thing
  728. is, if you modify this software inside my box I will cut your service off&quot;. That
  729. would be a straightforward violation of GPL. You would be adding a
  730. condition to the licence and you couldn't do it.
  731. </p>
  732. <p class="indent">
  733. Now why it's such a big deal, that everybody should jump up and down and yell
  734. and scream and carry on if we say: &quot;oh! and by the way, what you are not allowed
  735. to do by illegally modifying the licence, you are not allowed to do by modifying
  736. the hardware so that the licence can be evaded safely!&quot;. It's a straightforward
  737. proposition: you can't do it this way and you can't do it that way either, why
  738. are you trying to evade the licence?
  739. </p>
  740. <p class="indent">
  741. &quot;Well we are very concerned about copyright on music and movies&quot; -
  742. Don't give me that. That's like any other reason for evading the
  743. licence. &quot;Well, we're very interested in making money Mr. Stallman, and
  744. if we break your licence we can make more money!&quot; - Sorry that's not a
  745. reason.
  746. </p>
  747. <p class="indent">
  748. So what we are talking about is not something about why we are mad at Hollywood
  749. or why we are mad at the music factories, that's another discussion.
  750. </p>
  751. <p class="indent">
  752. We are saying that the licence should prohibit technical means of evasion of its
  753. rules, with the same clarity that it prohibits legal evasion of its rules,
  754. that's all.
  755. </p>
  756. <p>
  757. [0h36m56s]
  758. </p>
  759. <p class="indent">
  760. On that subject we do not believe that there is a lot of room for
  761. principled argument going the other way, but such room as there is we
  762. are open to listening to.
  763. </p>
  764. <p class="indent">
  765. Richard emphasised today that if this attempt to inhibit evasion of the licence
  766. came in the form of a refusal to permit use, it would be wrong to do. Some of
  767. the language we published in January lead people to conclude we were imposing
  768. use restrictions in order to deal with a mode of evasion of the licence by
  769. people seeking security for entertainment.
  770. </p>
  771. <p class="indent">
  772. To the extent that that language caused to people to feel that that's what we
  773. were doing, it was plainly badly chosen language and it will
  774. be replaced in GPL3's second discussion draft.
  775. </p>
  776. <p>
  777. [0h37m59s]
  778. </p>
  779. <p class="indent">
  780. Richard also said this morning that we have been working against the
  781. background of a moving target in Europe. As European domestic
  782. implementations of EUCD threw up new legal restrictions that we might
  783. have to confront and deal with.
  784. </p>
  785. <p class="indent">
  786. At the present moment we believe that the next draft will contain
  787. language successfully repelling the force of both of US DMCA and the
  788. EUCD, without employing use restrictions or other inappropriate
  789. technology within the context of the licence. We are continuing to
  790. work with lawyers around the world to see to it that the final draft
  791. will also act to get in the way of anti-circumvention law written
  792. elsewhere in the world using other legal concepts.
  793. </p>
  794. <p class="indent">
  795. The goal is to make it possible for people who get GPL'd software to
  796. exercise the rights promised to them by the licence.
  797. </p>
  798. <p>
  799. [0h39m04s]
  800. </p>
  801. <p>
  802. Audience member: Excuse me Mr. Moglen would you like speaking a mite slower
  803. so we can...
  804. </p>
  805. <p class="indent">
  806. Moglen: Sure, I apologize. I also apologize for using English. I
  807. appreciate that that may be difficult for some people.
  808. </p>
  809. <p class="indent">
  810. To go back over that point, I wanted to say that we will use, as best
  811. we can, other legal advice we have taken to ensure that the final
  812. version of the licence, works against other anti-circumvention law
  813. around the world not merely EUCD and US DMCA statutes but other legal
  814. regulations elsewhere in the world as well.
  815. </p>
  816. <p>
  817. [0h39m54s]
  818. </p>
  819. <p id="afterward">[Section: What happens after the process]</p>
  820. <p class="indent">
  821. I want to wrap up and take questions for the rest of the time, I suspect there are a
  822. lot of questions. Let me just say something, because for me this is the half way
  823. point in a long process, let me say something about what will happen when it's
  824. over. You may be less concerned about that than I am, half way through this process
  825. I am very eager to think about the day when it will be over.
  826. </p>
  827. <p class="indent">
  828. When it will be over, I believe, probably some time next January, we will have
  829. made, by international collaboration, the rules that govern a system of
  830. intellectual creativity, also the rules that govern a multi billion dollar
  831. industry, also the constitution of a social and political movement called the
  832. Free Software movement. We will have adjusted the language of all three
  833. documents inside one piece of paper. The rules that allow individuals and
  834. students and classes and schools around the world to experiment freely with all
  835. forms of computer knowledge. The rules which allow multi billion dollar
  836. businesses to operate in stable and unified ways. At a time when the leading
  837. alternate model of how to make and distribute software is visibly bankrupt and
  838. incapable of performing.
  839. </p>
  840. <p class="indent">
  841. And we will have made clear what the constitution of the Free Software movement
  842. is, for the next little while, by stating what its goals are and how it
  843. proposes to achieve them.
  844. </p>
  845. <p>
  846. [0h42m01s]
  847. </p>
  848. <p class="indent">
  849. We will all have done all these things, tens of thousands of people around the
  850. world will have collaborated to do those three things, this year.
  851. </p>
  852. <p class="indent">
  853. The largest, most deeply funded monopoly in the history of the world,
  854. will have lost its CEO, fired a bunch of its subordinate executives,
  855. and produced, instead of the best release in ten years, a total
  856. commercial and technical failure.
  857. </p>
  858. <p class="indent">
  859. Proprietary software will have visibly collapsed, cut off at the knees by its
  860. own inefficiency.
  861. </p>
  862. <p class="indent">
  863. We, you and I and everybody else doing this, will have succeeded in negotiating
  864. the rules of the industry for the next decade by open collaboration.
  865. </p>
  866. <p class="indent">
  867. At the end of that process, politics and government and society and economics
  868. will notice that discrepancy. They will notice that discrepancy because the
  869. sound of the failure of Microsoft will be much quieter than you think, the sound
  870. of the failure of Microsoft will concentrate a lot of other people's attention
  871. because Microsoft won't be speaking so loudly anymore.
  872. </p>
  873. <p class="indent">
  874. On the contrary, people will be saying to themselves: &quot;They used to have a
  875. billion dollars a month in profit! And they used to spend that billion dollars a
  876. month making propaganda about how their way was the only right way. Funny how
  877. they don't have that profit anymore. Funny how they can't spend all that dough
  878. on propaganda anymore. Funny how much simpler it seems now, when they're not
  879. yammering so loudly. By God! Now we can hear ourselves think.&quot; And in the middle
  880. of this quiet we notice that theirs was a bad way of doing business.
  881. </p>
  882. <p class="indent">
  883. That's where we are going to be when this is over. We are going to have renewed
  884. our fundamental infrastructure and made it much stronger and much more flexible.
  885. The world's leading alternative approach will have died on the field of battle
  886. chosen by itself, having failed to make its own products well enough to convince
  887. the users, it had already trapped, to use them.
  888. </p>
  889. <p class="indent">
  890. That's going to be quite a shocking comparison to those who didn't know what we
  891. were up to as clearly as we did.
  892. </p>
  893. <p>
  894. [0h44m58s]
  895. </p>
  896. <p class="indent">
  897. That's all I have to say.
  898. Let me take your questions, thanks very much.
  899. </p>
  900. <p>
  901. [applause]
  902. </p>
  903. <p>
  904. [45m 00s]
  905. </p>
  906. <p id="q1-permissions-and-restrictions">
  907. Q1: I'd like to ask you to explain further about the difference between added
  908. restrictions and added permissions, which, at least to me, has been a bit
  909. unclear in the explanation of Mr. Stallman, and yours was a bit cursory,
  910. especially as it amounts to patents. Added permissions, as &quot;you can use patents
  911. in our portfolio&quot;, and added restrictions, as &quot;you can't use, or 'disseminate' is
  912. the word, our software if you initiate a lawsuit&quot;.
  913. </p>
  914. <p>
  915. The second question is: if you've talked to people like the Debian
  916. project, who are seemingly even stricter than the Free Software
  917. Foundation in some of the requisites for what they call freedom in
  918. licences.
  919. </p>
  920. <p>
  921. It's a bit of a long question, with three parts, I realise.
  922. </p>
  923. <p>
  924. [45m 50s]
  925. </p>
  926. <p class="indent">
  927. A: Yeah, they're actually quite different, let me try and take them as different
  928. questions, I'll speak to them differently as quickly as I can.
  929. </p>
  930. <p class="indent">
  931. First, I thought that one of the disadvantages of the way section 7 was released
  932. in the first discussion draft, was that it attempted to treat permissions and
  933. requirements together, in one unified set of drafting. I had an alternate
  934. drafting proposal, which treated permissions as one sub-subject, and
  935. requirements as another; and in the second discussion draft we adopt that
  936. drafting instead. The consequence is to make the differences among permissions
  937. and requirements easier to understand and to follow.
  938. </p>
  939. <p>
  940. [46:40]
  941. </p>
  942. <p class="indent">
  943. Rather than talk my way through language that we'll have out on the
  944. street in a little bit, let me just put it in the narrowest way. Permissions
  945. are an essentially open set, you can permit pretty much anything you
  946. want in addition to the GPL, but permissions are removable. Additional
  947. requirements must be one of a specific set of possible additional
  948. requirements; the set is closed, not open. Those requirements are not
  949. removable from the code which bears those requirements, instead you
  950. have to point each recipient of the code clearly to which additional
  951. requirements apply to which portions of the code. So if you adopt
  952. something out an Apache licensed program, there is a patent
  953. retaliation clause in the Apache licence, therefore you have some code
  954. in your GPL'd program which has a patent retaliation provision applying
  955. to it, and you have to indicate clearly to the user what code that is.
  956. </p>
  957. <p class="indent">
  958. That's the nature of the difference between permissions and requirements. You
  959. asked specifically about the use of the additional permissions section to deal
  960. with patents: we don't rely upon the additional permissions section to deal with
  961. patent rights. Whatever is going to be said about how patent rights are
  962. allocated between people making, people distributing, and people using the code,
  963. will be set in the base GPL, in section 11; and how it is set will be carefully
  964. determined after discussion with all those people in the world who care about
  965. that, but there we're looking for a unique consensus solution.
  966. </p>
  967. <p>
  968. [48m 30s]
  969. </p>
  970. <p class="indent">
  971. [interruption from the audience]
  972. </p>
  973. <p class="indent">
  974. With respect to permissions, grants of patent allocations, non
  975. assertion of patents, whatever it is that is the technical material,
  976. the way you know that you get what you need to practice the freedoms
  977. in the licence, will not be as a result of additional terms. That
  978. will be in the base terms.
  979. </p>
  980. <p class="indent">
  981. Patent retaliation clauses, however, go in that category of additional
  982. requirements sometimes permitted, and there the principle was stated in the
  983. first discussion draft of the licence: patent retaliation clauses are OK if they
  984. are fully defensive in character; if their purpose is solely to repel patent
  985. lawsuits, and not to take other kinds of advantages using patents. The GPL will
  986. not contain any such clause; it will merely say it's compatible with licences
  987. containing such clause.
  988. </p>
  989. <p class="indent">
  990. So, to pick up your last question, there will be no issue with Debian:
  991. if a licence out there in the world is also a free licence under the
  992. Debian Free Software Guidelines, then that licence, to the extent GPL
  993. permits, may be compatible with GPL, but the freedom or unfreedom of
  994. that licence can be judged by looking at that licence standing alone
  995. under DFSG; no licence becomes GPL-compatible, which isn't also
  996. capable of being compatible with the Debian Free Software Guidelines, and
  997. we won't be saying &quot;Licence X is compatible with GPL&quot;, we'll be
  998. saying &quot;Here's a term; GPL can use that term; if GPL accepts code
  999. under that term, that term stays on that code, not under GPL, but
  1000. under the other requirements set applicable to that code. Use all the
  1001. code under the GPL, if you take that piece out, remember to
  1002. pass it along with the patent retaliation clause on it&quot;. That's all.
  1003. </p>
  1004. <p class="indent">
  1005. [50m 35s]
  1006. </p>
  1007. <p id="q2-dfsg-compliance">
  1008. Q2: Do you expect that GPLv3 with be compliant with the Debian Free Software
  1009. Guidelines? And is it a goal for the next...
  1010. </p>
  1011. <p>
  1012. [50m 50s]
  1013. </p>
  1014. <p class="indent">
  1015. Well, I haven't any reason to suspect that there will be an incompatibility; I
  1016. haven't any reason to believe that there is a chance of an incompatibility; it
  1017. hasn't been my primary concern, because it hasn't seemed to me to be even the
  1018. beginning of an issue; if it were suggested somewhere along the way by our own
  1019. evaluation, or by somebody else's, that there was a real problem with the Debian
  1020. Free Software Guidelines we would address it.
  1021. </p>
  1022. <p class="indent">
  1023. [51m 20s]
  1024. </p>
  1025. <p id="q3-dmca-wordings">
  1026. Q3: I have another question concerning the DRM clause. There is one wording that
  1027. says that covered software cannot be an effective measure against... er in the
  1028. sense of the DCMA. Do you expect this clause to be effective?
  1029. </p>
  1030. <p>
  1031. [51m 45s]
  1032. </p>
  1033. <p class="indent">
  1034. I expect that US courts will be instructed on the intention of the licensor
  1035. to reject the features of DMCA as it applies to GPL software. I expect the
  1036. United States courts to listen closely to statements of the licensor's intent,
  1037. because under US copyright law it is the licensor's intent which normatively
  1038. determines the content of licence.
  1039. </p>
  1040. <p class="indent">
  1041. That language was not meant to deal with EUCD arrangements, which are different;
  1042. we will employ a different strategy for dealing with the EUCD, which is not
  1043. present in discussion draft 1, and which will see its first public exposure in
  1044. discussion draft 2, at which point we will then begin discussing with European
  1045. lawyers, businesses and parties, what they think of that proposal.
  1046. </p>
  1047. <p>
  1048. [53m 00s]
  1049. </p>
  1050. <p id="q4-what-new-dmca-wording">
  1051. Q4: [question asked without microphone]
  1052. </p>
  1053. <p>
  1054. [53m 05s]
  1055. </p>
  1056. <p class="indent">
  1057. Yeah, the question was asked offline whether I would now disclose what
  1058. that's going to be; I have a 95% certainty that I know what the language is, but
  1059. might I point out that there are two countries presently implementing EUCD right
  1060. under our noses, and I reserve the right to make further changes in light of
  1061. those legal changes if I need to in the next several weeks. The reasons for not
  1062. pre-disclosing things is that I have an obligation of professional caution, and
  1063. my client as you know has a very deep belief in the importance of avoiding
  1064. mistakes that could permanently harmful to freedom. If this were the right date
  1065. to disclose those terms, we'd disclose those terms today.
  1066. </p>
  1067. <p>
  1068. [53m 50s]
  1069. </p>
  1070. <p id="q5-removing-privacy-clause">
  1071. Q5: On the DRM front, is the invasion of privacy wording one of the one wordings
  1072. that's going to be removed from this draft?
  1073. </p>
  1074. <p>
  1075. [53m 55s]
  1076. </p>
  1077. <p class="indent">
  1078. Yeah, I expect that language to be gone; I've said that in public on several
  1079. locations. I thought myself as one lawyer that there was a useful role to play in
  1080. the licence for principles that would have given private copyright holders
  1081. around the world a legal weapon with which to deal with spyware problems.
  1082. </p>
  1083. <p class="indent">
  1084. I think those problems are terribly severe. I expect most governments to get it
  1085. wrong and keep it wrong, because their incentives are misaligned: the victims of
  1086. spyware are individual citizens; the beneficiaries of spyware are wealthy public
  1087. and private parties with enormous benefits to gain from the continuance of low
  1088. security; as Microsoft fails, and the primary provider of low network security
  1089. around the world begins to fail; the parties which have benefitted from ten
  1090. years of low network security, and boy have they benefitted!, will begin to look
  1091. for other ways to insure low network security.
  1092. </p>
  1093. <p class="indent">
  1094. The monopoly was an extraordinarily good way to achieve low network security,
  1095. because the only party who had to take the blame, was the party to whom there
  1096. was no alternative, and which was perfectly happy to have its non-existent
  1097. reputation for integrity blacken still further. Once that is no longer true, the
  1098. problem of how to achieve high network security given many commercial parties'
  1099. desire for weak network security will grow more intense.
  1100. </p>
  1101. <p class="indent">
  1102. I thought it was desireable to afford individual developers the
  1103. opportunity as private attorneys general around the world to use
  1104. copyright law to inhibit bad practices built into their code by
  1105. subsequent modifiers. I now conclude that that's a provision for
  1106. which, by large, the community does not see it in that way, and it is
  1107. not hard to remove it, given the absence of people's interest in
  1108. it. Later I believe they will wish we had done that, probably in the
  1109. same intensity that they would wish that we had solved the patent more
  1110. coercively in 1991, and may very well be glad that we have solved the
  1111. DRM problems for them to the extent that we are going to solve them
  1112. this year. But we will leave that problem to be dealt with by the
  1113. future, because it's clear that the readers of the licence in the
  1114. present don't see its value, and do see significant drawbacks, so I
  1115. believe that it will come out.
  1116. </p>
  1117. <p>
  1118. [56m 40s]
  1119. </p>
  1120. <p id="q6-lgpl-and-others">
  1121. Q6: Will we be able to use the same methods used to make the LGPL to make the new
  1122. GPL compatible with the currently incompatible licences like the MPL, the
  1123. Mozilla Public License, or the...
  1124. </p>
  1125. <p>
  1126. [57m 00s]
  1127. </p>
  1128. <p class="indent">
  1129. You can always use an additional permission, to combine GPL'd code with any
  1130. other licence that you want. So in that sense, yes, you can use additional
  1131. permissions to make trivial compatibility between GPL and other licences. Please
  1132. remember that permissions are removable: downstream from you, parties may
  1133. decide to remove your trivial compatibility provision, thus returning the code
  1134. under the licence to a pure GPL state. Remember that existing LGPL contains a
  1135. provision that says all code licensed under LGPL can always be relicensed under
  1136. GPL. So in turning LGPL into an additional permission, we are not changing any
  1137. behaviour by making it a removable permission on top of GPL. If you used a
  1138. similar approach to make compatibility with another licence, and admitted the
  1139. removability, you would be fine.
  1140. </p>
  1141. <p>
  1142. [58m 05s]
  1143. </p>
  1144. <p id="q7-a-contract">
  1145. Q7: How are you thinking about changing something in the title of the
  1146. section, I think it's 9, &quot;not a contract&quot;, because that
  1147. that's a bit incompatible with the laws in some place, like in Brazil
  1148. - I'm from Brazil.
  1149. </p>
  1150. <p>
  1151. [58m 23s]
  1152. </p>
  1153. <p class="indent">
  1154. I firmly disagree with that position, but nonetheless we will do something to
  1155. meet these needs. I ultimately regard these believes as narrow-minded and
  1156. foolish, it belongs to half a dozen law professors around the world, each of
  1157. whom should check his cards again, and it's all &quot;he&quot;. They are people with gray
  1158. hair and old minds. They're not very old minds, because if in each of their
  1159. legal systems they went to their old legal dictionaries and looked at what the
  1160. word licence means, or if they got real Roman about it and went and looked in the
  1161. Institutes of Justinian to find out what licence means, they would discover that
  1162. a licence is a unilateral permission, not an obligation, and so what happens is
  1163. that these minds that say these thing, they're stuck in a little space, a
  1164. thousand years after Justinian and before the Second World War.
  1165. </p>
  1166. <p class="indent">
  1167. Nonetheless, there's a view, OK? And so that view, which has been hardly
  1168. repeated, deservers to be regarded with respect, though I haven't given it any
  1169. respect in my personal comments, because I'm entitled to a personal opinion.
  1170. As a working drafting lawyer, I expect that section 9 will bear, when it is
  1171. released, a title something like &quot;acceptance not required to receive and run
  1172. copies&quot;, which is a statement of fact, accurate and clear, and which reduces the
  1173. reliance upon a legal characterisation, increasing reliance on a factual
  1174. consideration, which is in general the course we have taken with respect to
  1175. de-nationalising the licence.
  1176. </p>
  1177. <p class="indent">
  1178. So much as I believe as one working lawyer that it is a foolish legal position,
  1179. I recognise that it is a straightforward request that can be served and that
  1180. should be dealt with, and we will deal with it.
  1181. </p>
  1182. <p>
  1183. [60m 40s]
  1184. </p>
  1185. <p id="q8-asp-loophole">
  1186. Q8: I have two questions. First, do you have anything to say about the
  1187. so called &quot;ASP loophole&quot;, or &quot;web loophole&quot;
  1188. because in the morning RIchard said that he saw the possibility to
  1189. adopt some clauses from the Affero GPL to fix this problem, but it may
  1190. be too drastic for GPLv3, but I think this loophole can be very
  1191. dangerous. Some day, our friend Microsoft will be gone, but we might
  1192. have the next enemy, because now we have the so called &quot;Web 2.0
  1193. companies&quot; whose business model is basically built on web
  1194. services. Would you answer this question first?
  1195. </p>
  1196. <p>
  1197. [61m 40s]
  1198. </p>
  1199. <p class="indent">
  1200. Knowing, as I do, that you may very well wind up not getting your second question in,
  1201. but that's all right. Look, here's the situation as I think we know see it:
  1202. there are two ethical points of view about what should happen when you take
  1203. somebody else's code which they wrote to interact with users over a network,
  1204. modify it yourself, and go into business competing with them to serve the same
  1205. people using your modified version of their code: one ethical position is &quot;you
  1206. should be required to give your changes back to the world: you're competing with
  1207. others in the public provision of services based on that code, and you should
  1208. return to commons your modifications, the same as if you were selling or
  1209. distributing that code&quot;, that's one ethical point of view.
  1210. </p>
  1211. <p class="indent">
  1212. The other ethical point of view is that this is a uniquely distinctive situation
  1213. in which any attempt to interfere with the right to keep those subsequent
  1214. modifications private, interferes with the right of private execution and private
  1215. modification, rights that are not to be tampered with. Those ethical points of
  1216. view are both very strong. THere is no benefit whatever to the licence maker,
  1217. or to the free software world in general, in choosing between those ethical
  1218. theories for everybody else.
  1219. </p>
  1220. <p class="indent">
  1221. If we came to you and we said &quot;we thought about these hard ethical issue; there
  1222. are absolutely good and absolutely clear arguments on both sides, they are of
  1223. equal weight and importance, this decision will have billions of dollars effect
  1224. in the world, we've decided it this way, A way or B&quot; people would rightly say
  1225. &quot;what had you in your world, that justified you with making that
  1226. decision for everybody else&quot;.
  1227. </p>
  1228. <p>
  1229. [63m 50s]
  1230. </p>
  1231. <p class="indent">
  1232. We will not make that decision for everybody. Nor will we make parties who want
  1233. to adopt either ethical theory forego all use of existing GPL code. Imagine for
  1234. a moment that we took out of section 7 the portion that relates to the so called
  1235. Affero GPL clause, we dropped it from the licence: now anybody who wanted to,
  1236. could make a new licence containing that provision, but it would be
  1237. GPL-incompatible, and they could not use any of the world's existing GPL'd
  1238. programs as a basis for building on.
  1239. </p>
  1240. <p class="indent">
  1241. That would inevitably harm innovation, because it would deprive people of all
  1242. this shareable software. On the other hand, if we decided that every GPL
  1243. included the Affero clause, there would, as you point out, be an awful lot of
  1244. businesses in the world that would lose their right to use GPL'd code, because
  1245. for reasons that they consider good and sufficient for themselves, they do not
  1246. wish to make their private modifications, which convey business advantages to
  1247. them in public facing systems, open to everybody else; they want to keep some
  1248. source code that they have modified, even though they are using that source code
  1249. to relate to the public.
  1250. </p>
  1251. <p class="indent">
  1252. Very well, we say; we would simply allow an additional requirement to be placed
  1253. on some code; if you build an Affero GPL model system, that is one which
  1254. implements services over a network, deals with the public over that network, and
  1255. in which any competitor who wants to use your code to build similar services
  1256. must release their modifications, the best way of doing that is to build your
  1257. whole application under GPL, take the part which does remote network services,
  1258. which may be just one among many modes or models of interaction for that
  1259. program, put that piece under Affero GPL, or add the requirement, is how we
  1260. would say it, and add to that program a feature which allows the user to
  1261. download the server side source.
  1262. </p>
  1263. <p class="indent">
  1264. Once you've taken all those steps, your application can be made of any GPL'd
  1265. parts yours or other people's; the particular part that you wrote to communicate
  1266. with the user over the network bears some additional requirements. Anybody who
  1267. wants to take the whole rest of your application can do so and use it in any way
  1268. they want, including private modifications and public uses.
  1269. </p>
  1270. <p class="indent">
  1271. And, if they don't like the part that you wrote being under Affero GPL, they can
  1272. rewrite it from scratch, thus minimising the amount of re-implementation
  1273. necessary, in order to take your application, which was Affero-lised, and
  1274. de-Affero-lise it so it can be used for private services. After lengthy analysis
  1275. we have concluded that this results in the optimum level of overall innovation
  1276. and the minimum level of required re-implementation, so that every developer can
  1277. get the result that every developer, or that developer's business, wants to get.
  1278. I do not think that there is another solution available which reduces the amount
  1279. of required re-implementation or which increases the net total of innovation,
  1280. therefore I think this is the right system to apply.
  1281. </p>
  1282. <p>
  1283. [67m 30s]
  1284. </p>
  1285. <p>
  1286. Q8b: But we take a very firm attitude toward DRM, right? And I think,
  1287. from a user's view, if we can use the software, I mean the service,
  1288. and we can get the results, but we can't see the source code, it
  1289. should be called proprietary, and it may infringe our the third
  1290. freedom, to help the community. So, maybe I'm too dogmatic but...
  1291. </p>
  1292. <p>
  1293. [68m 10s]
  1294. </p>
  1295. <p class="indent">
  1296. I don't understand how you are loosing any rights. If you write the thing
  1297. yourself, nobody else's code is involved and you can make all the rules that you
  1298. want. If you use other people's GPL'd code to make an application with, how does
  1299. it harm your rights to say you have to respect your users at the same level that
  1300. they respected you as a user when they gave you the code.
  1301. </p>
  1302. <p class="indent">
  1303. We're not in the business of preventing anybody from doing anything that he
  1304. wants with something he writes himself. The question is: if you get stuff from
  1305. somebody else which constitutes an entire application for public facing
  1306. services, and if he has written his application so that he wants mods released
  1307. back into commons, why should you think that you have a right to deprive him of
  1308. that, and still use his code?
  1309. </p>
  1310. <p class="indent">
  1311. My notion would be: if you want to re-implement the part of his code which uses
  1312. network services and leave the whole rest of it in place, you get a great deal
  1313. of benefit, you get to use 90% of his code; he gets a benefit: you are required
  1314. to respect the user's rights for that 90% to the same extent that he respects
  1315. the user's rights. If he respects the user's rights a little more in the
  1316. remaining 10% than you wanted to respect them, you have a choice: swallow hard
  1317. and take his approach to your users, or throw away that piece of his code and
  1318. re-implement. That's the minimum size re-implementation for you to have the same
  1319. absolute freedom that you want to have; I don't think you're disadvantaged, I
  1320. think you are advantaged to the extent of the continued shareability of the code
  1321. between two fundamentally ethical positions.
  1322. </p>
  1323. <p>
  1324. [70m 00s]
  1325. </p>
  1326. <p id="q9-quasi-official-translation">
  1327. Q9: If it's OK, I'd like to ask a second question, about the
  1328. translation. You said that translation are second best, and I think I
  1329. agree, more or less, but I'm from Japan, where most people, even those
  1330. who can speak English prefer to read the Japanese translation of the
  1331. licences. I understand the idea of official translations may be very
  1332. dangerous, but I think that it would be a good idea to make
  1333. quasi-official translation, which means, it's reviewed by several
  1334. local lawyers, Japanese translations by Japanese lawyers, Spanish
  1335. translations by Spanish lawyers, and at least FSF acknowledge that
  1336. this review has happened.
  1337. </p>
  1338. <p>
  1339. [71m 00s]
  1340. </p>
  1341. <p class="indent">
  1342. I've two things to say about that. The first is that, as Mr. Stallman
  1343. indicated today, the question of translation is open for discussion, and I am
  1344. listening to everybody about it. The second thing I want to say is that I made a
  1345. trip to Tokyo before the beginning of the GPLv3 process, to meet with members of
  1346. &quot;Meek&quot; and &quot;Makey&quot;, and to meet with lawyers from all the major industrial
  1347. organisations using GPL in Japan, they were all very gracious with their time.
  1348. </p>
  1349. <p class="indent">
  1350. I said: we're going to make GPLv3, we badly need Japanese lawyers who understand
  1351. this business and its concerns to help us think about every single word in the
  1352. GPL from a Japanese legal perspective; I want to work with the best Japanese
  1353. lawyers you all identify to make this a better licence; they all said &quot;Thank you
  1354. very much, we'd be delighted to do that&quot;, and they did nothing. And the reason
  1355. they did nothing was they did not want to expose their lawyers for
  1356. non-privileged conversation on these questions.
  1357. </p>
  1358. <p class="indent">
  1359. The result is that 12 months after that meeting, which occurred in
  1360. June of 2005 in Japan, I have so far had zero meaningful legal
  1361. assistance from the lawyers working for large Japanese industry. If
  1362. it's important, it's important. If it's important later, it's
  1363. important now. If it would be good to have them make an official
  1364. translation later, then it would be good to have the same lawyers
  1365. involved right now helping us to make a better licence.
  1366. </p>
  1367. <p>
  1368. [72m 30s]
  1369. </p>
  1370. <p class="indent">
  1371. Every single large industrial organisation in Japan has highly talented lawyers
  1372. thinking hard about these questions, and they speak English quite well, as I
  1373. know from having done business with them for years. The problem we are having
  1374. is not a language problem, the problem we are having is not a willingness to
  1375. listen problem, the problem we are having is not a &quot;we don't care about Japan&quot;
  1376. problem, the problem we are having is the parties have decided to wait and keep
  1377. silent too long.
  1378. </p>
  1379. <p class="indent">
  1380. I wish they wouldn't. I think the most useful contribution you could make would
  1381. be to put heat on the organisations to bring their people in and start
  1382. negotiating. It's now more than ready to start happening, we're halfway through
  1383. the process; if my good friends in Japan wait until the eleventh hour plus
  1384. thirty minutes to come and tell us what they think and what they want, they're
  1385. going to be disappointed; not because I'm not going to listen, but because the
  1386. train will have left the station. Please help them to get on board.
  1387. </p>
  1388. <p>
  1389. Q9b: That's what I'm doing now, I actually agree.
  1390. </p>
  1391. <p class="indent">
  1392. I'm responding to the suggestion that the way we should let them
  1393. participate now is by letting them translate it when it's over. And I
  1394. have said &quot;Gee, that's too bad. That's not a good way. Let's do it
  1395. now!&quot;.
  1396. </p>
  1397. <p>
  1398. [74m 20s]
  1399. </p>
  1400. <p id="q10-ms-demise-visible">
  1401. Q10: You opened and closed your talk, talking about Microsoft
  1402. capitulation. As someone who has constantly to deal with Microsoft
  1403. meddling with governments and blocking initiatives by sheer amounts of
  1404. money power, and stuff like that, I'm more than keen to believe that
  1405. it is such, and it would be really, a great help for us not have to
  1406. constantly fight that; however, from being exposed to that kind of
  1407. thing too often, I'm not very inclined to be so optimistic as to it
  1408. going to stop anytime soon. What should we be looking for in the near
  1409. future as further indications of this capitulation actually being a
  1410. fact?
  1411. </p>
  1412. <p>
  1413. [75m 25s]
  1414. </p>
  1415. <p class="indent">
  1416. Well, there used to be a Microsoft executive, who was the
  1417. executive vice president for platform technology, whose primary task
  1418. was to &quot;beat Linux&quot;, as they described it. His name is Martin Taylor
  1419. and everywhere he went, Martin Taylor was a very important part of the
  1420. landscape of pressure and interaction that you have described.
  1421. </p>
  1422. <p class="indent">
  1423. After the second great [inaudible] when Windows would only be a little
  1424. late, Mr Taylor was moved to work on Windows Live,
  1425. of which he became the dominant executive.
  1426. </p>
  1427. <p class="indent">
  1428. Earlier this week, suddenly, without any pre-announcement of any kind
  1429. Microsoft fired him. Mr. Taylor has worked at Microsoft since the age
  1430. of 23, he's now 36; he was personally a pet of Mr. Ballmer's; he has a
  1431. great deal of Microsoft stock and no job; I don't know whether you
  1432. would consider that a straw in the wind or not.
  1433. </p>
  1434. <p class="indent">
  1435. I would say this: among the reasons I wanted to do this work now, one of the
  1436. reasons we identified when we started to pick this year to do GPLv3 was that I
  1437. believed that Microsoft would be busy doing something else. Their position in
  1438. our process, their power to disrupt, was a significant concern to me from the
  1439. beginning, when a company is trying to ship a major product of its own, of a
  1440. kind that demands months and months of careful marketing and preparation, PRs as
  1441. well as merchandising, it is not likely that they will spend a lot of money
  1442. saying aggressive bad things about a third party.
  1443. </p>
  1444. <p class="indent">
  1445. It's not known to be a good way to get your own product to market, to spend a
  1446. lot of time bad-mouthing other people. So I thought this would be the best possible
  1447. year to do this work, simply because Longhorn, now Vista, had to be released
  1448. this year.
  1449. </p>
  1450. <p>
  1451. [77m 25s]
  1452. </p>
  1453. <p class="indent">
  1454. I now believe that it runs a little deeper than that; the charm offensive
  1455. Microsoft is currently conducting, which is palpable to any of us who work in
  1456. this part of the world, the charm offensive Microsoft is conducting is now
  1457. edgier than it used to be for them, there are fewer alternate options.
  1458. </p>
  1459. <p class="indent">
  1460. Of course I don't want anybody to come off alert; I'm a lawyer around here, my
  1461. job is anticipating war and being ready to fight it whenever it turns up. We
  1462. have by no means stopped worrying about aggression. When Samba 4 is released,
  1463. Microsoft will have the best reason for aggression it has had in a long time,
  1464. because it will be competing against something that doesn't just ruin the server
  1465. business for them, it eliminates the server business from them.
  1466. </p>
  1467. <p class="indent">
  1468. The consequences are not going to be small for a company which already has
  1469. nothing to offer on the server side, and which has never successfully sold the
  1470. client side of anything to global enterprise without a server side to go
  1471. along. That's why the current situation is so dire in business terms for
  1472. Microsoft; that means that they will be, when they act aggressively, if they act
  1473. aggressively, acting aggressively from much greater weakness that they had in
  1474. the past.
  1475. </p>
  1476. <p class="indent">
  1477. Moreover, thanks to Carlo and others in this room and around this room,
  1478. Microsoft is far more constrained by the European Commission anti-trust
  1479. proceedings than Microsoft was ever restrained by any anti-trust proceedings
  1480. anywhere else in the World. For the first time, the company faces the
  1481. possibility of significant alterations to its behaviour mandated within the
  1482. lifetime of one of its products.
  1483. </p>
  1484. <p class="indent">
  1485. And Vista, a product they are not going to be able to sell to knowledgeable
  1486. consumers, is also in the pipeline at just the moment when it can be decisively
  1487. affected by regulatory orders from the European Commission, and Carlo and our
  1488. colleagues in that litigation have already shown that they know exactly how to
  1489. testify, and exactly what to ask for, and exactly to hold on to the ankle
  1490. without letting go.
  1491. </p>
  1492. <p>
  1493. [79m 35s]
  1494. </p>
  1495. <p class="indent">
  1496. I'm not here to tell you that this is going to be easy or simple, or that the US
  1497. embassy is never going to be asked again to do a favour for Microsoft in some
  1498. country in the World where the US embassy's word is terribly important. All of
  1499. those things may very well happen. Our general ability to return fire is
  1500. superior to at anytime in the past; our ability to do real strategic damage to
  1501. their earning capacity is stronger than at anytime in the past; our allies more
  1502. firmly believe in the possibility of beating them than at anytime in the past,
  1503. and in Google they face an adversary of whom they are terrified.
  1504. </p>
  1505. <p class="indent">
  1506. Google is from our point of view just a large user of our stuff, but from their
  1507. point of view Google is the business that terrifies them; and therefore, they
  1508. are now dividing their anxiety again for the first time in years. After Mr Gates
  1509. figured out that we were the problem, we were for a long period of time his
  1510. primary anxiety; now, it doesn't matter what makes him anxious in the middle of
  1511. the night, he's just a philanthropist. As for Mr. Ballmer, what makes him anxious in
  1512. the middle of the night? Lots of things make Mr. Ballmer anxious in the middle
  1513. of the night; we're going to keep pumping up his blood pressure until maximum is
  1514. reached, very soon.
  1515. </p>
  1516. <p>
  1517. [81m 10s]
  1518. </p>
  1519. <p id="q11-patent-retaliation-freedom">
  1520. Q11: This is a very basic legal question, I am not a lawyer...
  1521. </p>
  1522. <p class="indent">
  1523. In this country I'm not a lawyer either...
  1524. </p>
  1525. <p>
  1526. [laughter]
  1527. </p>
  1528. <p>
  1529. Q11b: I'm an eager reader of Debian Legal, which may be a bad thing, but I'd like
  1530. you to comment, as regards to the GPLv3, on what's called in Debian &quot;the
  1531. dictator test&quot;, or the tests that regard something that is not distribution or
  1532. dissemination, as would be for instance the patent retaliation clauses. I don't
  1533. completely understand about how these things can be free, which are really
  1534. restrictions of freedoms that the person would normally have and do not affect
  1535. pure redistribution; one is patent retaliation, the freedom to sue is one that
  1536. one has, supposedly, and the other one is the Affero type of thing; Affero
  1537. affects use, or liberty/freedom 0, not distribution or dissemination which would
  1538. be freedom 1, as far as I understand. Maybe you could comment on that and why
  1539. the GPLv3 takes the view that it takes on those two issues.
  1540. </p>
  1541. <p>
  1542. [82m 20s]
  1543. </p>
  1544. <p class="indent">
  1545. Look, there are two aspects of that question, one of which i think is, as you
  1546. say, the Debian Legal way of life. I try not to interact with the Debian Legal
  1547. way of life, but having just said I'm not a lawyer in this country, I suppose
  1548. there is a reason that in this country I might interact with the Debian Legal
  1549. way of being a little more; I'll try and pretend that I don't know anything
  1550. about law anywhere in the World and then I'll try and think Debian Legal's way
  1551. about the stuff.
  1552. </p>
  1553. <p class="indent">
  1554. It generally turns out, as I know from having spent almost a quarter of a
  1555. century now as a lawyer for hackers, that when hackers pretend to be lawyers,
  1556. there are certain predictable formulations that they come to; they assume a
  1557. degree of consistence in legal rules that is not achievable; this is a primary
  1558. problem which occurs particularly in US focused conversation, such is that in
  1559. Debian Legal, where the libertarian demand for intellectual consistency, and the
  1560. hacker belief that laws are form of code that are executed without errors or
  1561. ambiguities, joins together to create a particular frame of analysis for legal
  1562. questions.
  1563. </p>
  1564. <p class="indent">
  1565. It doesn't work very well for me as a lawyer, I think it doesn't work very well
  1566. for lawyers elsewhere in the World, because the one thing which lawyers around
  1567. the world all share is an awareness of the squishiness of law, it is by no means
  1568. the hard arthropod carapace for internal soft organs that non-lawyers have a
  1569. tendency to assume it is.
  1570. </p>
  1571. <p>
  1572. [84:00]
  1573. </p>
  1574. <p class="indent">
  1575. With that in mind, the problem of the patent retaliation clauses is not a
  1576. problem in the GPL, for Debian or anybody else. If the Debian legal group had
  1577. decided that the Apache Software License was a non-free licence because it had a
  1578. defensive patent retaliation clause in it some years ago, maybe the Apache tribe
  1579. would have decided not to put such a clause in its licence. We are merely saying
  1580. we are prepared to coexist with it, and since the Apache licence is already a
  1581. free licence, from Debian's point of you, I fail to see how coexisting with
  1582. what's already free could be a freedom problem.
  1583. </p>
  1584. <p>
  1585. [84m 35s]
  1586. </p>
  1587. <p class="indent">
  1588. So far as the Affero GPL clause is concerned, remember that what it says is: &quot;if
  1589. you get a GPL'd program, that has a facility in it, giving server side source
  1590. code to the user, that's not a removable facility&quot;. That's the same statement
  1591. that the GPL makes about interactive display of copyright notices; lots of
  1592. licences in the world graded free say &quot;if the program displays copyright notice
  1593. when it starts running in the form you get it, then you have to leave that
  1594. there&quot;, and the reason is for security of attribution, right?
  1595. </p>
  1596. <p class="indent">
  1597. So here is another non removable element in a free program, placed there out of
  1598. the desire to protect people's freedom. I don't know how the Debian Legal World
  1599. will think about that, I know how the Free Software Foundation will think about
  1600. that; the Free Software Foundation would say: the very fundament of copyleft is
  1601. the desire to limit freedom minimally in order to protect freedom in the long
  1602. run.
  1603. </p>
  1604. <p class="indent">
  1605. The question to be asked within the Free Software Foundation's ethics
  1606. of law is not &quot;Is this a restriction on freedom?&quot;, which is what I
  1607. think I heard the Debian Legal analysis is doing, the question is: &quot;If
  1608. this is a restriction of freedom, is this the narrowest possible
  1609. restriction to protect freedom in the long run, or is there a narrower
  1610. way to accomplish the same protection of freedom, or is it better to
  1611. allow freedom to be defeated in the long run than to impose this
  1612. restriction now?&quot;.
  1613. </p>
  1614. <p class="indent">
  1615. But it is always, I think, in Free Software Foundation thought, it is
  1616. certainly characteristic of Mr. Stallman's thought throughout his
  1617. career, it is characteristic, I think, to be minimalist about
  1618. restriction, not negative about restriction.
  1619. </p>
  1620. <p class="indent">
  1621. The position being taken is &quot;to have a community requires some minimal
  1622. restrictions to preserve community&quot;. We tend to see the other side's
  1623. view of that question &quot;there ought to be no restrictions except those
  1624. which are inevitable&quot; as too libertarian to be firmly communal. If
  1625. you want to keep a community in being you may have to say &quot;clean up
  1626. after your dog on the sidewalk&quot;. Yeah, it's a restriction on use, but
  1627. it's an alternative to having a lot of dog shit on the sidewalk.
  1628. </p>
  1629. <p>
  1630. [87m 10s]
  1631. </p>
  1632. <p id="q12-contract-theory">
  1633. Q12: Just a small speculation. You said that the licence is a unilateral
  1634. permission. Why is that so hard for most law professors to understand? I agree
  1635. with it, but I just don't understand why very few would like to argue
  1636. in that direction.
  1637. </p>
  1638. <p>
  1639. [87m 25s]
  1640. </p>
  1641. <p class="indent">
  1642. Because in the course of the 20th century, post Edison, the copyright licence
  1643. became a device for getting more out of the customer than copyright allowed.
  1644. Once the Edisonian model of culture and distribution had come to be second
  1645. nature, very few publishing parties wanted only what copyright gave them, for
  1646. multimedia or technically sophisticated works, they wanted more than copyright
  1647. could give them, so they entered into contracts with their customers, one part
  1648. of which was the licence, and another part of which was additional obligations
  1649. that they wanted users and customers to have
  1650. </p>
  1651. <p class="indent">
  1652. So over the course of decades, a copyright licence ceased to be only a licence,
  1653. and became very largely a contract for customers' obligations, because the
  1654. customer's obligations were a big part of what the party writing the licence,
  1655. which wasn't the customer, wanted to see in there.
  1656. </p>
  1657. <p class="indent">
  1658. We came along and said &quot;We don't even want all of what copyright gives us, let
  1659. alone do we want anything else&quot;, so we can use a pure licence, because most of
  1660. what we want to do is to give away copyright law, and no part of what we want to
  1661. do is to take additional obligations from people that aren't within the scope of
  1662. copyright law.
  1663. </p>
  1664. <p class="indent">
  1665. Therefore, for the first time in decades, somebody was building a business model
  1666. around a pure licence, and a whole bunch of lawyers who grew up in the world
  1667. after Edison and before Stallman said &quot;we've never seen one of those! Every
  1668. licence must be a contract, because every licence involves obligations by the
  1669. licensee&quot;, and we said &quot;That's new! That's novel! That's crap!&quot;.
  1670. </p>
  1671. <p class="indent">
  1672. Users have rights: you shouldn't take people's rights
  1673. away from them using contracts, where what you're giving them is just
  1674. a program to run. It's in the nature of the criticism we were making
  1675. of the legal institutions being used by others, that we were calling
  1676. attention to a thing which had happened barely consciously, and which
  1677. is still a kind of unreleased restriction in some people's minds.
  1678. </p>
  1679. <p class="indent">
  1680. Alright, thank you very much, I appreciate it.
  1681. </p>
  1682. <p>
  1683. [Q&amp;A ends, applause]
  1684. </p>
  1685. <h2>Further information</h2>
  1686. <ul>
  1687. <li>For general information, links, and a timeline, see
  1688. our <a href="gplv3.html">GPLv3 project</a> page</li>
  1689. <li>See
  1690. the <a
  1691. href="/campaigns/gplv3/europe-gplv3-conference.html">conference
  1692. webpage</a> for recordings, transcripts, and summaries of the other
  1693. presentations</li>
  1694. <li>You can support FSFE's work, such as our GPLv3 awareness work,
  1695. by joining <a href="http://fellowship.fsfe.org/">the Fellowship of
  1696. FSFE</a>, and also by encouraging others to do so</li>
  1697. </ul>
  1698. </body>
  1699. </html>