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<title>GPLv3 - Transcript of Eben Moglen from the third
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international GPLv3 conference, Barcelona; 2006-06-22</title>
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<body>
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<div style="float:right;">
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<a href="gplv3.html"><img SRC="GPLv3-logo-red.png"
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ALT="GPLv3 logo" BORDER="0"
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WIDTH="319" HEIGHT="130" /></a>
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</div>
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<h1>Transcript of Eben Moglen at the 3nd international GPLv3
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conference; 22nd June 2006</h1>
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<p>
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See our <a href="gplv3.html">GPLv3 project</a> page for information
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on <a href="gplv3#participate">how to participate</a>. And you may
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be interested in
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our <a href="http://fsfe.org/transcripts#licences">list of
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transcripts on GPLv3 and free software licences</a>.
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</p>
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<p>The following is a transcript of Eben Moglen's presentation
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made at
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the <a href="/projects/gplv3/europe-gplv3-conference.html">third
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international GPLv3 conference</a>, organised by FSFE in Barcelona.
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The conference page has materials from the other presentations.
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</p>
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<p>Please support work such as this by
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joining <a href="http://fellowship.fsfe.org/">the Fellowship of FSFE</a>,
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and by encouraging others to do so. Transcription of this
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presentation was undertaken by Giacomo Poderi and Cristian Rigamonti
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with checking by <a href="/about/oriordan/oriordan.html">Ciaran
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O'Riordan</a>. The video was made and processed by Sean Daly.</p>
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<p>Eben Moglen is General Counsel of the Free Software Foundation (a
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sister organisation of FSFE), and is the Chairman of Software
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Freedom Law Centre.</p>
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<p>Video and audio recordings are available:</p>
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<ul>
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<li>Audio: <a href="fsfe-gplv3-eben-moglen.vorbis.ogg.torrent">http://fsfeurope.org/projects/gplv3/fsfe-gplv3-eben-moglen.vorbis.ogg.torrent</a></li>
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<li>Video: <a href="fsfe-gplv3-eben-moglen.theora.ogg.torrent">http://fsfeurope.org/projects/gplv3/fsfe-gplv3-eben-moglen.theora.ogg.torrent</a></li>
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</ul>
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<p>The speech was made in English.</p>
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<h2>Presentation sections</h2>
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<ol>
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<li><a href="#begin">The presentation</a></li>
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<li><a href="#gates-surrender">First: Bill Gates has surrendered</a></li>
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<li><a href="#where-are-we">Where are we?</a></li>
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<li><a href="#the-process">The public process</a></li>
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<li><a href="#how-they-talk">How the committees discuss</a></li>
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<li><a href="#comments-website">How the public comments</a></li>
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<li><a href="#gold-example">An example high-value comment</a></li>
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<li><a href="#much-change">A lot has been rewritten</a></li>
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<li><a href="#internationalisation">Internationalisation</a></li>
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<li><a href="#example-decision">Example of bridging legal system differences</a></li>
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<li><a href="#propagation">Propagating and conveying software</a></li>
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<li><a href="#derivative">No more reliance on "derivative works"</a></li>
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<li><a href="#proliferation">Fixing licence proliferation</a></li>
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<li><a href="#lgpl">LGPL, like merging electronic weak</a></li>
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<li><a href="#patents">The patents issue</a></li>
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<li><a href="#drm">The DRM issue - it's all about software</a></li>
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<li><a href="#afterward">What happens after the process</a></li>
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</ol>
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<h2>Questions and Answers session sections</h2>
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<ul>
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<li><a href="#q1-permissions-and-restrictions">Differentiating restrictions from permissions</a></li>
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<li><a href="#q2-dfsg-compliance">About DFSG compliance</a></li>
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<li><a href="#q3-dmca-wordings">Will the DMCA-thwarting wording work?</a></li>
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<li><a href="#q4-what-new-dmca-wording">What will the new DMCA/EUCD thwarting words be?</a></li>
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<li><a href="#q5-removing-privacy-clause">Will the anti-privacy-invasion clause go?</a></li>
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<li><a href="#q6-lgpl-and-others">Can the LGPL technique be used to make other licences?</a></li>
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<li><a href="#q7-a-contract">Will the "Not a contract" phrase go?</a></li>
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<li><a href="#q8-asp-loophole">Will the "ASP loophole" be addressed?</a></li>
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<li><a href="#q9-quasi-official-translation">How about quasi-official translations?</a></li>
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<li><a href="#q10-ms-demise-visible">When will Microsoft's demise be palpable?</a></li>
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<li><a href="#q11-patent-retaliation-freedom">Do patent retaliation clauses restrict freedom?</a></li>
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<li><a href="#q12-contract-theory">Why do so many lawyers call GPL a contract?</a></li>
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</ul>
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<h2 id="begin">The presentation</h2>
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<p>
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[0h01m08s]
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</p>
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<p class="indent">
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Eben Moglen: So, I'm Eben Moglen, I'm a lawyer who works on the
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production of freedom, mostly with the makers and distributors of Free
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Software and mostly at the moment for one client, whom you know.
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</p>
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<p class="indent">
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Because Richard was kind enough to go through the state of substantive affairs
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in the drafting of GPL3, I want to take time this afternoon, before answering
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your questions, to give some context for the effort that he described in detail.
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</p>
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<p>
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[0h01m58s]
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</p>
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<p class="indent">
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First I think I owe you as citizens of the Free Republic some more precise
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information about the process and its state at the present moment, and then I'd like
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to talk a little bit about the larger aspects of our life in the Free Republic
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into which GPL3 fits.
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</p>
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<p id="gates-surrender">[Section: First: Bill Gates has surrendered]</p>
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<p class="indent">
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But the first thing I think I ought to do, is to give you some news: Mr. Gates
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has surrendered.
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</p>
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<p>
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[laughter]
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</p>
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<p class="indent">
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And before we get all back to fighting again among ourselves, we ought
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at least to recognize the meaning of that step. In the United States
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when a major corporate executive resigns or retires there is a
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mandatory process of talking calm to the markets. You don't resign
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on less than two years notice, so as to give the feeling of orderly
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transition and complete control over circumstances. If, for example,
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the chief executive officer of the Enron corporation resigns suddenly
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on no notice, then that's a sign that immense trouble is immediately
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ahead as in that case bankruptcy was by six weeks.
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</p>
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<p>
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[0h03m35s]
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</p>
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<p class="indent">
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So for Mr. Gates to have announced that he is retiring from active service to
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Microsoft on two years notice, is the minimum length of time, that could have
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been chosen without sending the signal: Microsoft is in an acute short term
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trouble.
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</p>
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<p class="indent">
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It isn't "My God! Everything is great, he's giving two years notice".
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It's "That's the least that could have been done".
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</p>
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<p class="indent">
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However, this particular retirement was announced to occur approximately five
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months before <i>the</i> most crucial product release in ten years. So anything that
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leads you to believe that this is normal, ordinary, "Mr. Gates promise Mr. Allen
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and Mr. Ballmer that he would stay at Microsoft until at least
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fifty, which he now is" - all of that talk is irrelevant. Mr Gates last week
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announced his retirement on the shortest possible timeline that wouldn't spook
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the markets. A resignation announced six months before the shipment of the
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most important product in ten years. I am characterising that <i>fairly</i> When I
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characterise it as personal surrender.
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</p>
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<p class="indent">
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Even better: Mr. Gates has surrendered and is leaving the company to Mr.
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Ballmer. Better news for us could not have been imagined. So, that's where they
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are.
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</p>
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<p>
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[0h05m23s]
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</p>
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<p id="where-are-we">[Section: Where are we?]</p>
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<p class="indent">
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Where are we?
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</p>
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<p class="indent">
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We are on schedule with the most important work we have done, in fifteen years.
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Anybody who thinks that Mr. Stallman's retirement is about to be announced
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wasn't here this morning. He's fifty four, Mr. gates is fifty, Mr. Gates has quit
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and left the field to younger men, like Mr. Stallman.
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So here we are, in the middle of the GPL3 process which, as to timing
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at any rate, seems to be going on at the right moment.
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</p>
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<p class="indent">
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As you all know we released a first discussion draft in January at MIT.
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We said: "it's a discussion draft, we are listening carefully to
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what people may want to say about it" and we convened a large and, admittedly,
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somewhat complicated process for listening to what people had to say.
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</p>
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<p>
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[0h06m26s]
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</p>
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<p class="indent">
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The first thing that turned out to be on everybody's mind was that GPL version 2
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was perfect. I know that it was perfect, because everything we wanted to change
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they told us we shouldn't change at all. And the implication therefore was:
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we have been living with an absolutely perfect licence, every single change in
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which was a bad idea. I wasn't absolutely surprised about this. Human beings have
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a certain resistance to change, and I wasn't surprised that everything we
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proposed changing turned out they really loved in the old version.
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</p>
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<p class="indent">
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But it is good to know, at any rate, that GPL2 is perfect. So if anything goes
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wrong, and we don't do GPL3, the World will still have a perfect licence with which
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to work.
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</p>
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<p>
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[0h07m10s]
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</p>
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<p class="indent">
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I actually think, if I might dare to say so, after fifteen years of working with
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it carefully that GPL2 can be improved, and we are improving it, but it's
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nice to know that the world at large have come to regard it with such fondness
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before we start to change it.
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</p>
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<p class="indent">
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Within a couple of weeks, after our announcement of the draft and the process for
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discussing it, I began to hear rumors that we weren't really going to listen to
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anybody.
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</p>
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<p class="indent">
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Apparently we had gone to enormous amounts of works to create a worldwide process
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for listening to everybody solely as a sham; actually I've heard: "Mr. Stallman
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is going to make the decisions all by himself", every once in a while I even
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heard people saying that I was going to make decision by myself, which if they
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knew Mr. Stallman they wouldn't say.
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</p>
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<p>
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[laughter]
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</p>
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<p class="indent">
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So in any event for a little while there, it looked, I suppose, to
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some people as though this whole grand effort to get everybody
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else's advice and wisdom involved, was somehow just a game we were playing.
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Which is, from my point of view, too bad that it's not true. If this were a game we
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were playing about taking everybody's opinion seriously I could get a lot more
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sleep, but unfortunately it's not that way.
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</p>
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<p class="indent">
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We actually set out to listen to everybody as carefully as we could in a context
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in which each kind of commentator would feel comfortable making his and her
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kinds of comments and the commenting on behalf of their organisations. And we've
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been listening extremely hard for four and half months and there's a great deal
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that we have learned in the course of that time.
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</p>
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<p>
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[0h08m46s]
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</p>
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<p id="the-process">[Section: The public process]</p>
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<p class="indent">
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I want to talk just a little bit then about that process which the world at
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large has seen, but only one side of.
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</p>
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<p class="indent">
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We made discussion committees by asking those people who joined us in
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Cambridge for the launch to join into committees, organized around types of
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social role in the process:
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</p>
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<ol>
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<li>
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vendors of commercial versions of Free Software or hardware that
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works with Free Software
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</li>
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<li>
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leadership of Free Software projects that do use GPL, that don't use GPL
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</li>
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<li>
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lawyers on behalf of large users, corporate officials working on
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behalf of corporations that are large users, public servants who are
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interested in public sector adoption
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</li>
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<li>
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individual hackers with substantial street cred whose views might be
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influential in helping other people to consider the licence either
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as one to use or as one to approve, and so on.
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</li>
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</ol>
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<p id="how-they-talk">[Section: How the committees discuss]</p>
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<p class="indent">
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Those committees meet in different ways, one committee consisting entirely of
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hackers prefers to work almost exclusively by IRC, one group consisting very
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largely of persons employed by major vendors tends to use large conference
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calls, parties use the forms of interaction which are
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comfortable and convenient for them, and we attempt to provide an environment
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in which everybody's comments can be heard and thought about with a sense of
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equality among participants.
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</p>
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<p>
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[0h10m23s]
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</p>
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<p id="comments-website">[Section: How the public comments]</p>
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<p class="indent">
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As Richard said, we created a little web services code that didn't exist before. We
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needed an application for allowing a very large number of people to attach
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comments to a single document and for the world at large to be able to see in an
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intuitive way, reading the text, where the comments concentrated in what level
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of intensity and how to click through there to get to other people's comments
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quickly on particular areas of interest or concern.
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</p>
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<p class="indent">
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I actually think that software did a pretty good job. It reduced the
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volume of comments, somewhat, at the cost of, or at the benefit of,
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greatly increased specificity in comments, because the Stet system
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made people go and highlight an area of text and say: "this is what
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I'm talking about and this is what I have to say" the quality of
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comments was very high. And the number was rendered more manageable
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because people didn't file, essentially, comment spam saying, I hate
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the whole thing or I love the whole thing, they actually went and
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found a place where they had something to say and said it. We had
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about a thousand non trivial comments from third parties not involved
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in the discussion process in any way, just people who used the system
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to register commentary of importance to them.
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</p>
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<p class="indent">
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In that thousand, every one of which was reviewed by somebody working
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on the process with me, with Richard, with David Turner, with Richard
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Fontana. In that process of looking at every single one of those
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comments I will say that at least one, maybe two or three, really
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important issues were seen for the first time, by somebody
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unaffiliated with our process in formal terms who simply had a damn
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good point to make which needed to be taken into account.
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</p>
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<p>
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[0h12m21s]
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</p>
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<p id="gold-example">[Section: An example high-value comment]</p>
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<p class="indent">
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Let me give you one example of an important issue unearthed in the
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public comment process which will have an effect on the second
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discussion draft of the licence.
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</p>
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<p class="indent">
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As you all know, since the beginning of the licence it has concentrated a great
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deal of attention on distribution as the moment at which obligations attached
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to your role in the free community. The assumption has always
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been that distribution is a one way activity. Somebody distributes, and a
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user receives. If binaries are being distributed, in particular, the binary
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distributor has an obligation to make source code available to a receiving user.
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</p>
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<p class="indent">
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All of this made a great deal of sense in 1991 and it probably still makes great
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deal of sense in 2006, but. Consider the situation of an iso image of a CD
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containing binaries of Free Software material under GPL being distributed
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among persons by BitTorrent. If you think about that scenario for just a
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moment you will see that in the torrent are a bunch of people "distributing
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binaries" who don't think of themselves as distributors, who think
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of themselves as users receiving the binary who have no source code and who
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haven't even got all the binary, yet. So that even if source code will later be part
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of the same torrent they're not guaranteed to have it and they can't pass it
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along.
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</p>
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<p class="indent">
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Under GPL2, an unaffiliated commentator said to us, this would be infringing
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activity, why don't you do something about that in GPL3 ?
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</p>
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<p class="indent">
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We looked at it and said, "you know, you're right". That's a major problem. That
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is to say, it's not all that hard to fix, but it's a major problem not to have
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seen it, "we are glad you brought it up".
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</p>
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<p class="indent">
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And we will make a few very narrow changes in the second discussion
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draft of GPL3 to allow for the fact that peer-to-peer models of
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distribution may involve ancillary transmission by people who would
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traditionally have been thought as receivers and they shouldn't
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have any obligations under the licence, because they are not actually
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engaged, in the sense we used to mean, in 'distribution'.
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</p>
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<p>
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[0h14m55s]
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</p>
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<p class="indent">
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That's an example an important technical issue in the changing, use and context
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of the licence, raised by somebody from outside the process and, as I said,
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there are probably two or three more of equivalently important scope that I
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could point to. That kind of commentary is worth its weight in gold. It is because
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of that kind of commentary from unaffiliated individuals that the entire process
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is worth maintaining, cost-what-it-will, to maintain it, to read its output, to
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think about every word it says, that's exactly what we were hoping for, that's
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exactly what we are getting.
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</p>
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<p class="indent">
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I have enormous respect for those people around the world, who've decided to take
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the time and trouble to make comments on this licence. They are doing a bang up
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job. As somebody who has to think about this all day every day,
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right now, I am immensely pleased that smart people would be willing voluntarily
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to take some time on it, and the quality of what we have gotten in every way
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demonstrates the power of the multiplied hive mind. We are
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getting great work out of people.
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</p>
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<p>
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[0h16m02s]
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</p>
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<p class="indent">
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This is true of the committees. [inaudible short sentence] Committee
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members have spent dozens of hours, in some cases hundreds of hours,
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working on this licence. They have spent a lot of time communicating,
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they have spent a lot of time refining ideas, they have spent lot of
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time coming up with improvements or suggestions or possible changes in
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language. They have been willing to do what in inter-corporate
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negotiations is often hard to do, they have come out and said what
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they wanted and said what they needed clearly and candidly, and I'm
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very grateful to them for doing that.
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</p>
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<p class="indent">
|
|
It has made it possible for us to understand what it would take to
|
|
provide a licence whose users - commercial as well as non commercial -
|
|
would feel themselves protected in their rights. And that's a powerful
|
|
and important task that we set to perform and that we could not
|
|
perform without all the effort and time and thinking that has gone
|
|
into it on other people's parts.
|
|
</p>
|
|
|
|
<p>
|
|
[0h17m01s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I believe that the first several months of discussion of the first discussion
|
|
draft have been beneficial to the quality of the draft in every way.
|
|
</p>
|
|
|
|
<p id="much-change">[Section: A lot has been rewritten]</p>
|
|
|
|
<p class="indent">
|
|
As you will see when it is released there are few articles that have not been
|
|
substantially rewritten. I am still puzzled by people's belief that we weren't
|
|
going to listen. I know that if I could release right this minute by throwing up
|
|
on the screen a strike out and bold copy of the new draft,
|
|
showing everything removed and everything inserted, that it would be harder for
|
|
people to take seriously this claim that we weren't listening. They would see
|
|
their language coming out and language going in that they would recognizes as
|
|
directly responsive to public comment and to suggestion. In a few weeks that's
|
|
what people will see, and I believe that that will allow us to enter the second
|
|
discussion period with much more confidence on the world's part
|
|
that the work that they are doing to help us improve the licence is being
|
|
gratefully and thoughtfully received.
|
|
</p>
|
|
|
|
<p>
|
|
[0h18m15s]
|
|
</p>
|
|
|
|
<p id="internationalisation">[Section: Internationalisation]</p>
|
|
|
|
<p class="indent">
|
|
In the process of revising the licence's second discussion draft, we have done
|
|
more work on what I think of as the fundamental challenge in
|
|
internationalisation. A question was asked this morning about
|
|
translation, and translation is unquestionably one possible way of
|
|
internationalising a licence. But translation is, in my judgement, at best, at
|
|
best, a second best way of internationalising the licence, and, for the reasons
|
|
that Richard offered this morning, a somewhat dangerous way.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
The best way of internationalising the licence, in my judgement, is to look as
|
|
firmly as possible to the work done more than a hundred and ten years ago in
|
|
the making of the Berne Convention. An attempt to harmonise global copyright law
|
|
in the World is now more than a hundred and ten years old. The United States was
|
|
late to come to Berne as a full participant in the harmonising of copyright law. That's
|
|
the good part of the thing called The Digital Millenium Copyrights Act, there
|
|
is a good part, trust me, not much but a little.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
And given that we are all now existing in a Berne universe, the right way of
|
|
internationalising is to come as close to Berne Convention mechanisms as
|
|
possible. In order to do that the one step really needed is to get out of the
|
|
licence dependence on any single legal system's vocabulary or unique conceptions.
|
|
And so our effort has been to genericise the way the licence does its work.
|
|
</p>
|
|
|
|
<p id="example-decision">[Section: Example of bridging legal system differences]</p>
|
|
|
|
<p class="indent">
|
|
I'll give you an example which came up in a conversation I had with
|
|
Carlo Piana over lunch. One defect in the licence as seen in some
|
|
countries of the world under GPL2 was that GPL2 stated that it was a
|
|
perpetual licence. German speaking lawyers, for example, working in
|
|
Germany, and that's only one example, said "you know, our legal system
|
|
really doesn't like that much in fact, in order to be valid licences
|
|
need to state a term". "Well, alright", we said, we understand that there
|
|
are some legal systems around the world in which stating a term may be
|
|
necessary or desirable in order to make a good licence.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
There are also legal systems around the world, we work in one in the United States,
|
|
where making licences perpetual is the right idea, because having non exclusive
|
|
licences good only for a term is an invitation to trouble.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
One way you could go at this is to translate the licence so that it says one
|
|
thing in German and another thing in English, but as Mr. Stallman pointed out
|
|
this morning, that's exactly the danger.
|
|
</p>
|
|
|
|
<p>
|
|
[0h21m19s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Otherwise you appear to be put to a bad choice, choose one or
|
|
choose the other and somebody will be unhappy with you. So the goal in modifying
|
|
the licence is to do neither and still achieve the result needed by both. As you
|
|
noticed, the first discussion draft said: "GPL now is a licence for a term, and
|
|
the term is the length of copyright on the underlying program".
|
|
Perpetual so far as the copyright is, and no more perpetual than that, and can be
|
|
stated as a fixed term reduceable to a number at any given moment.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Accordingly, I hope and believe, based on the legal advice we've taken from
|
|
lawyers around the world, who are helping us with this matter, we have succeeded
|
|
in finessing a problem where we might have been thought to face
|
|
a choice, between something that would work in system one and something that would
|
|
work in in system two, but not both.
|
|
</p>
|
|
|
|
<p>
|
|
[0h22m12s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
The second discussion draft of the licence goes still further in that path. As
|
|
Richard mentioned this morning, we have once again attempted to take vocabulary
|
|
and consolidate it, so that there is a set of terms unique to GPL, all of which
|
|
can be defined by relation to underlying copyright law in each individual
|
|
copyright system.
|
|
</p>
|
|
|
|
<p id="propagation">[Section: Propagating and conveying software]</p>
|
|
|
|
<p class="indent">
|
|
So "propagation" is doing anything with the program that requires local permission
|
|
on the copyright law, except running it or privately modifying it.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
"Conveying" it, is propagating the program in a way that makes it possible for
|
|
others to make or receive copies. By using language which is not US
|
|
copyright language, or anybody else's copyright language, but by stating only
|
|
the relationship between licence terms of art and states of fact in the world,
|
|
we think we can get rid of a large number of problems arising out of national
|
|
law.
|
|
</p>
|
|
|
|
<p id="derivative">[Section: No more reliance on "derivative works"]</p>
|
|
|
|
<p class="indent">
|
|
I will say, therefore, the second discussion draft of GPL3 will not have any
|
|
longer any dependency on the American copyright law idea of a "derivative work".
|
|
Accordingly we will be able to avoid another fifteen years of complaining from
|
|
lawyers who quite justifiably thought the reliance on a US centric view of
|
|
the derivative work was a major source of uncertainty and uneasiness. They may
|
|
think that what we have done instead is not a perfect improvement, but I feel
|
|
certain that there will at least be the recognition that it's a
|
|
useful development.
|
|
</p>
|
|
|
|
<p>
|
|
[0h23m54s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Internationalisation of the licence, as I said at the beginning, in Cambridge,
|
|
goes along with the other major structural change that we wanted to make. Which
|
|
Richard described this morning as we described it in January as enhanced
|
|
compatibility.
|
|
</p>
|
|
|
|
<p id="proliferation">[Section: Fixing licence proliferation]</p>
|
|
|
|
<p class="indent">
|
|
I want to go back over that ground a little bit for you, in order to put the
|
|
context a little more deeply around it. After Richard's discussion of enhanced
|
|
compatibility this morning, a question was asked in the question
|
|
period: "what about licence proliferation?"
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Our answer to licence proliferation, I think, I want to expand a little bit on
|
|
Richard's remarks, is very straight forward now: use GPL, add the permissions
|
|
that you need, if the restrictions you would have put in a different licence are
|
|
restrictions compatible with GPL under the section 7, you need not make any new
|
|
licence. If you don't like copyleft we can do nothing for you, but if you don't
|
|
like copyleft then you should recognise licence proliferation as the necessary
|
|
consequence of the non-copyleft licensing you prefer to do. In other words, ask
|
|
yourselves: "why has there been licence proliferation?". There has not been
|
|
proliferation of copyleft licences, or rather there has been very limited
|
|
proliferation of copyleft licences. There are two or three copyleft licences in
|
|
the world with any significant mindshare.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Permissive licences have multiplied all out of keeping. But it is
|
|
precisely because permissive licensing has as a necessary consequence the
|
|
proliferation of licences, that we are where we are.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Parties who wanted to licence in non proliferating ways had too few choices,
|
|
when there were a small number of copyleft licences and they all worked in pretty
|
|
much one way only.
|
|
</p>
|
|
|
|
<p>
|
|
[0h26m05s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
GPL's new section 7, the enhanced compatibility provision, will allow
|
|
copyleft licensing to be used more flexibly while still striking the balance in
|
|
the direction of commercial usability for businesses and clarity for individual
|
|
developers who want to know what licence to apply to their code. I think it
|
|
makes an enormous contribution if people care to use it in that way, that's up
|
|
to everybody else.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
We will have laid down an infrastructure for licence interoperation which we
|
|
believe, if used fully, will have a very substantial effect in reducing
|
|
proliferation over the next few years.
|
|
</p>
|
|
|
|
<p id="lgpl">[Section: LGPL, like merging electronic weak]</p>
|
|
|
|
<p class="indent">
|
|
Some comment was made this morning about the LGPL as a section 7 additional
|
|
permission on top of GPL. I would have left that subject to be disclosed when we
|
|
show you the drafts in a couple of weeks, but as the subject has come up, let me
|
|
just say one little thing about it. That move does not change the behaviour of
|
|
LGPL at all, as Richard told you this morning. We adopted a "no functional
|
|
change" constraint in the reshaping of the licence. What it does is to allow LGPL
|
|
to serve as a good example of the additional permissions structure for GPL and
|
|
how powerful it is. By expressing LGPL as just an additional permission on top
|
|
of GPL we simplify our licensing landscape drastically.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
It's like for physics getting rid of a force, right? We just unified
|
|
electro-weak, ok? The grand unified field theory still escapes us
|
|
until the document licences too are just additional permissions on top
|
|
of GPL and I don't know how we ought to get there. That's gravity, it's
|
|
really hard. But the physics has gotten simpler and, I think, that
|
|
alone is valuable. The other thing is that the new LGPL expressed as
|
|
permission will show people how to use permissions to make quite
|
|
sophisticated licences very simply, and we think that also is all to
|
|
the good because such licences do not proliferate, they reconvert to
|
|
GPL at the instance of modifiers which is a valuable and useful
|
|
property to have.
|
|
</p>
|
|
|
|
<p>
|
|
[0h28m43s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
That's all I want to say about the technical material in the licence, except
|
|
to talk about "issues". As we said at the outset there are two or
|
|
three dominant issues that remain to be talked out in order to get to a
|
|
consensus about the licence.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
One issue, or one group of issues has to do with the handling of patent rights.
|
|
The other issue has to do with the control over software in the interest of
|
|
entertainment security. I want to talk very briefly about both of those because
|
|
Richard talked at length and I don't want to redo anything he said. So
|
|
I'm gonna try to add only, and in questions you will take up what you think I
|
|
have been too light on.
|
|
</p>
|
|
|
|
<p id="patents">[Section: The patents issue]</p>
|
|
|
|
<p class="indent">
|
|
With respect to patents, the issue has changed radically in the last
|
|
couple of years. GPL version 2 is a licence that says: "There's a
|
|
terrible patent problem, if you don't do something about it, all hell
|
|
is going to break loose sooner or later". 'Sooner or later' has come
|
|
and gone and everybody knows that all hell has broken loose.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
The fundamental question now for everybody is how to invent around
|
|
the patent system, through the licence, so as to achieve optimal goals
|
|
for several different classes of parties. Parties who have large
|
|
patents portfolios and want to contribute to the Free Software world
|
|
and GPL in particular, parties who are afraid of other people's
|
|
patents because they make revenues that could be the source of claims
|
|
for royalties, and parties who want to develop software and are afraid
|
|
of patents, not because they have commercially and significant revenue
|
|
streams, but because they are afraid of the chilling effect of
|
|
announcements of patents or patent licences or patent lawsuits as a
|
|
way of politically inhibiting people from making desirable Free
|
|
Software.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Those are quite distinct groups, some parties, that is parties with large patent
|
|
portfolios also having significant revenue streams, appear more than once in the
|
|
interest group analysis of the patent problems. Each of those
|
|
major industrial parties with large patent portfolios has well developed patent
|
|
policies of its own and well developed positions in negotiations with other
|
|
parties in the industry concerning its patent portfolios. We, although we have a
|
|
certain sophistication in those conversations, having sat in them for years,
|
|
have no patents and no clout in that world, usually.
|
|
</p>
|
|
|
|
<p>
|
|
[0h31m39s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Right now we have some clout, because we make a licence people need. But we
|
|
cannot overuse that clout, we must make a licence that people need as much as they
|
|
need the one we are changing.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
The discussion about patents has been very complicated, very thick, sometimes
|
|
rather heated, though those parties who have tried to apply fire
|
|
to the soles of my feet have been kind enough to do it privately instead of
|
|
publicly, still there has been a great deal of attempted torture.
|
|
I have responded as gently as I possibly could but sometimes I have
|
|
said harsh words back, too, for which I am now publicly stating that I don't
|
|
regret it at all. Bargaining is bargaining; we will be done soon.
|
|
</p>
|
|
|
|
<p>
|
|
[0h32m29s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I believe that great progress has been made among the patent holders
|
|
in understanding what they need, what they need collectively, as well
|
|
as individually and what represents good outcomes from the Free
|
|
Software Foundation position in this matter. We have considered a
|
|
number of changes to the statements contained in the first discussion
|
|
draft about patents, we have listened exceedingly carefully to
|
|
everybody who had anything to say on that subject, whether they were
|
|
patent holders or not, and we think we have proposals to make, in the
|
|
near future, that will be very helpful in resolving these issues. Once
|
|
those issues are resolved we need movement on other questions too.
|
|
</p>
|
|
|
|
<p>
|
|
[0h33m13s]
|
|
</p>
|
|
|
|
<p id="drm">[Section: The DRM issue - it's all about software]</p>
|
|
|
|
<p class="indent">
|
|
Which brings us to the subject of Richard's major address this
|
|
morning, the problem of Digital Restrictions over code.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
People have tended to think of this as though Richard was trying to
|
|
cram down their throat a replacement word for what they were doing. Companies
|
|
that make entertainment content, think they have digital rights, and that they
|
|
should be allowed to manage their digital rights.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I have no stake in that, in one way or another, as private citizen I have real
|
|
strong feelings about that. But my role right now is to be a lawyer for the Free
|
|
Software movement, and as a lawyer for the Free Software movement I have nothing
|
|
to do with music and nothing to do with movies. I don't represent the Free Music
|
|
Foundation, I don't represent the Free Movie Foundation. I represent people
|
|
care about making Free Software, and for them Mr. Stallman is quite right. What
|
|
are Digital Rights Management issues to the entertainment
|
|
companies are simply Restrictions Management to us.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Because what is restricted is the right to make our software the way we make
|
|
our software. That restriction is set to follow from somebody's use of
|
|
his own rights over his own copyrighted works, music and movies, but
|
|
that means nothing to us. Not because we think there shouldn't be copyright on
|
|
music or movies or because we think sharing should be free, whatever it is.
|
|
That's all irrelevant.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
You will hear a lot of talk about DRM in which it is suggested that we are
|
|
somehow trying to use a software licence to address non software issues. Nothing
|
|
could be further from the truth: we are addressing a software issue.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Is GPL'd software being distributed in a way which would be illegal, if
|
|
the licence were being evaded, and which is solely regarded as legal
|
|
because the licence evasion is technically implemented.
|
|
</p>
|
|
|
|
<p>
|
|
[0h35m20s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
If I sell you a computer containing software under GPL, let's say I make a
|
|
digital video recorder, let's say I call it TiVo. And I sell it to you and I
|
|
say: "there's GPL'd software in here, here is the source code. The only thing
|
|
is, if you modify this software inside my box I will cut your service off". That
|
|
would be a straightforward violation of GPL. You would be adding a
|
|
condition to the licence and you couldn't do it.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Now why it's such a big deal, that everybody should jump up and down and yell
|
|
and scream and carry on if we say: "oh! and by the way, what you are not allowed
|
|
to do by illegally modifying the licence, you are not allowed to do by modifying
|
|
the hardware so that the licence can be evaded safely!". It's a straightforward
|
|
proposition: you can't do it this way and you can't do it that way either, why
|
|
are you trying to evade the licence?
|
|
</p>
|
|
|
|
<p class="indent">
|
|
"Well we are very concerned about copyright on music and movies" -
|
|
Don't give me that. That's like any other reason for evading the
|
|
licence. "Well, we're very interested in making money Mr. Stallman, and
|
|
if we break your licence we can make more money!" - Sorry that's not a
|
|
reason.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
So what we are talking about is not something about why we are mad at Hollywood
|
|
or why we are mad at the music factories, that's another discussion.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
We are saying that the licence should prohibit technical means of evasion of its
|
|
rules, with the same clarity that it prohibits legal evasion of its rules,
|
|
that's all.
|
|
</p>
|
|
|
|
<p>
|
|
[0h36m56s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
On that subject we do not believe that there is a lot of room for
|
|
principled argument going the other way, but such room as there is we
|
|
are open to listening to.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Richard emphasised today that if this attempt to inhibit evasion of the licence
|
|
came in the form of a refusal to permit use, it would be wrong to do. Some of
|
|
the language we published in January lead people to conclude we were imposing
|
|
use restrictions in order to deal with a mode of evasion of the licence by
|
|
people seeking security for entertainment.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
To the extent that that language caused to people to feel that that's what we
|
|
were doing, it was plainly badly chosen language and it will
|
|
be replaced in GPL3's second discussion draft.
|
|
</p>
|
|
|
|
<p>
|
|
[0h37m59s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Richard also said this morning that we have been working against the
|
|
background of a moving target in Europe. As European domestic
|
|
implementations of EUCD threw up new legal restrictions that we might
|
|
have to confront and deal with.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
At the present moment we believe that the next draft will contain
|
|
language successfully repelling the force of both of US DMCA and the
|
|
EUCD, without employing use restrictions or other inappropriate
|
|
technology within the context of the licence. We are continuing to
|
|
work with lawyers around the world to see to it that the final draft
|
|
will also act to get in the way of anti-circumvention law written
|
|
elsewhere in the world using other legal concepts.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
The goal is to make it possible for people who get GPL'd software to
|
|
exercise the rights promised to them by the licence.
|
|
</p>
|
|
|
|
<p>
|
|
[0h39m04s]
|
|
</p>
|
|
|
|
<p>
|
|
Audience member: Excuse me Mr. Moglen would you like speaking a mite slower
|
|
so we can...
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Moglen: Sure, I apologize. I also apologize for using English. I
|
|
appreciate that that may be difficult for some people.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
To go back over that point, I wanted to say that we will use, as best
|
|
we can, other legal advice we have taken to ensure that the final
|
|
version of the licence, works against other anti-circumvention law
|
|
around the world not merely EUCD and US DMCA statutes but other legal
|
|
regulations elsewhere in the world as well.
|
|
</p>
|
|
|
|
<p>
|
|
[0h39m54s]
|
|
</p>
|
|
|
|
<p id="afterward">[Section: What happens after the process]</p>
|
|
|
|
<p class="indent">
|
|
I want to wrap up and take questions for the rest of the time, I suspect there are a
|
|
lot of questions. Let me just say something, because for me this is the half way
|
|
point in a long process, let me say something about what will happen when it's
|
|
over. You may be less concerned about that than I am, half way through this process
|
|
I am very eager to think about the day when it will be over.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
When it will be over, I believe, probably some time next January, we will have
|
|
made, by international collaboration, the rules that govern a system of
|
|
intellectual creativity, also the rules that govern a multi billion dollar
|
|
industry, also the constitution of a social and political movement called the
|
|
Free Software movement. We will have adjusted the language of all three
|
|
documents inside one piece of paper. The rules that allow individuals and
|
|
students and classes and schools around the world to experiment freely with all
|
|
forms of computer knowledge. The rules which allow multi billion dollar
|
|
businesses to operate in stable and unified ways. At a time when the leading
|
|
alternate model of how to make and distribute software is visibly bankrupt and
|
|
incapable of performing.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
And we will have made clear what the constitution of the Free Software movement
|
|
is, for the next little while, by stating what its goals are and how it
|
|
proposes to achieve them.
|
|
</p>
|
|
|
|
<p>
|
|
[0h42m01s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
We will all have done all these things, tens of thousands of people around the
|
|
world will have collaborated to do those three things, this year.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
The largest, most deeply funded monopoly in the history of the world,
|
|
will have lost its CEO, fired a bunch of its subordinate executives,
|
|
and produced, instead of the best release in ten years, a total
|
|
commercial and technical failure.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Proprietary software will have visibly collapsed, cut off at the knees by its
|
|
own inefficiency.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
We, you and I and everybody else doing this, will have succeeded in negotiating
|
|
the rules of the industry for the next decade by open collaboration.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
At the end of that process, politics and government and society and economics
|
|
will notice that discrepancy. They will notice that discrepancy because the
|
|
sound of the failure of Microsoft will be much quieter than you think, the sound
|
|
of the failure of Microsoft will concentrate a lot of other people's attention
|
|
because Microsoft won't be speaking so loudly anymore.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
On the contrary, people will be saying to themselves: "They used to have a
|
|
billion dollars a month in profit! And they used to spend that billion dollars a
|
|
month making propaganda about how their way was the only right way. Funny how
|
|
they don't have that profit anymore. Funny how they can't spend all that dough
|
|
on propaganda anymore. Funny how much simpler it seems now, when they're not
|
|
yammering so loudly. By God! Now we can hear ourselves think." And in the middle
|
|
of this quiet we notice that theirs was a bad way of doing business.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
That's where we are going to be when this is over. We are going to have renewed
|
|
our fundamental infrastructure and made it much stronger and much more flexible.
|
|
The world's leading alternative approach will have died on the field of battle
|
|
chosen by itself, having failed to make its own products well enough to convince
|
|
the users, it had already trapped, to use them.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
That's going to be quite a shocking comparison to those who didn't know what we
|
|
were up to as clearly as we did.
|
|
</p>
|
|
|
|
<p>
|
|
[0h44m58s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
That's all I have to say.
|
|
Let me take your questions, thanks very much.
|
|
</p>
|
|
|
|
<p>
|
|
[applause]
|
|
</p>
|
|
|
|
<p>
|
|
[45m 00s]
|
|
</p>
|
|
|
|
<p id="q1-permissions-and-restrictions">
|
|
Q1: I'd like to ask you to explain further about the difference between added
|
|
restrictions and added permissions, which, at least to me, has been a bit
|
|
unclear in the explanation of Mr. Stallman, and yours was a bit cursory,
|
|
especially as it amounts to patents. Added permissions, as "you can use patents
|
|
in our portfolio", and added restrictions, as "you can't use, or 'disseminate' is
|
|
the word, our software if you initiate a lawsuit".
|
|
</p>
|
|
|
|
<p>
|
|
The second question is: if you've talked to people like the Debian
|
|
project, who are seemingly even stricter than the Free Software
|
|
Foundation in some of the requisites for what they call freedom in
|
|
licences.
|
|
</p>
|
|
|
|
<p>
|
|
It's a bit of a long question, with three parts, I realise.
|
|
</p>
|
|
|
|
<p>
|
|
[45m 50s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
A: Yeah, they're actually quite different, let me try and take them as different
|
|
questions, I'll speak to them differently as quickly as I can.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
First, I thought that one of the disadvantages of the way section 7 was released
|
|
in the first discussion draft, was that it attempted to treat permissions and
|
|
requirements together, in one unified set of drafting. I had an alternate
|
|
drafting proposal, which treated permissions as one sub-subject, and
|
|
requirements as another; and in the second discussion draft we adopt that
|
|
drafting instead. The consequence is to make the differences among permissions
|
|
and requirements easier to understand and to follow.
|
|
</p>
|
|
|
|
<p>
|
|
[46:40]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Rather than talk my way through language that we'll have out on the
|
|
street in a little bit, let me just put it in the narrowest way. Permissions
|
|
are an essentially open set, you can permit pretty much anything you
|
|
want in addition to the GPL, but permissions are removable. Additional
|
|
requirements must be one of a specific set of possible additional
|
|
requirements; the set is closed, not open. Those requirements are not
|
|
removable from the code which bears those requirements, instead you
|
|
have to point each recipient of the code clearly to which additional
|
|
requirements apply to which portions of the code. So if you adopt
|
|
something out an Apache licensed program, there is a patent
|
|
retaliation clause in the Apache licence, therefore you have some code
|
|
in your GPL'd program which has a patent retaliation provision applying
|
|
to it, and you have to indicate clearly to the user what code that is.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
That's the nature of the difference between permissions and requirements. You
|
|
asked specifically about the use of the additional permissions section to deal
|
|
with patents: we don't rely upon the additional permissions section to deal with
|
|
patent rights. Whatever is going to be said about how patent rights are
|
|
allocated between people making, people distributing, and people using the code,
|
|
will be set in the base GPL, in section 11; and how it is set will be carefully
|
|
determined after discussion with all those people in the world who care about
|
|
that, but there we're looking for a unique consensus solution.
|
|
</p>
|
|
|
|
<p>
|
|
[48m 30s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
[interruption from the audience]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
With respect to permissions, grants of patent allocations, non
|
|
assertion of patents, whatever it is that is the technical material,
|
|
the way you know that you get what you need to practice the freedoms
|
|
in the licence, will not be as a result of additional terms. That
|
|
will be in the base terms.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Patent retaliation clauses, however, go in that category of additional
|
|
requirements sometimes permitted, and there the principle was stated in the
|
|
first discussion draft of the licence: patent retaliation clauses are OK if they
|
|
are fully defensive in character; if their purpose is solely to repel patent
|
|
lawsuits, and not to take other kinds of advantages using patents. The GPL will
|
|
not contain any such clause; it will merely say it's compatible with licences
|
|
containing such clause.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
So, to pick up your last question, there will be no issue with Debian:
|
|
if a licence out there in the world is also a free licence under the
|
|
Debian Free Software Guidelines, then that licence, to the extent GPL
|
|
permits, may be compatible with GPL, but the freedom or unfreedom of
|
|
that licence can be judged by looking at that licence standing alone
|
|
under DFSG; no licence becomes GPL-compatible, which isn't also
|
|
capable of being compatible with the Debian Free Software Guidelines, and
|
|
we won't be saying "Licence X is compatible with GPL", we'll be
|
|
saying "Here's a term; GPL can use that term; if GPL accepts code
|
|
under that term, that term stays on that code, not under GPL, but
|
|
under the other requirements set applicable to that code. Use all the
|
|
code under the GPL, if you take that piece out, remember to
|
|
pass it along with the patent retaliation clause on it". That's all.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
[50m 35s]
|
|
</p>
|
|
|
|
<p id="q2-dfsg-compliance">
|
|
Q2: Do you expect that GPLv3 with be compliant with the Debian Free Software
|
|
Guidelines? And is it a goal for the next...
|
|
</p>
|
|
|
|
<p>
|
|
[50m 50s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Well, I haven't any reason to suspect that there will be an incompatibility; I
|
|
haven't any reason to believe that there is a chance of an incompatibility; it
|
|
hasn't been my primary concern, because it hasn't seemed to me to be even the
|
|
beginning of an issue; if it were suggested somewhere along the way by our own
|
|
evaluation, or by somebody else's, that there was a real problem with the Debian
|
|
Free Software Guidelines we would address it.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
[51m 20s]
|
|
</p>
|
|
|
|
<p id="q3-dmca-wordings">
|
|
Q3: I have another question concerning the DRM clause. There is one wording that
|
|
says that covered software cannot be an effective measure against... er in the
|
|
sense of the DCMA. Do you expect this clause to be effective?
|
|
</p>
|
|
|
|
<p>
|
|
[51m 45s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I expect that US courts will be instructed on the intention of the licensor
|
|
to reject the features of DMCA as it applies to GPL software. I expect the
|
|
United States courts to listen closely to statements of the licensor's intent,
|
|
because under US copyright law it is the licensor's intent which normatively
|
|
determines the content of licence.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
That language was not meant to deal with EUCD arrangements, which are different;
|
|
we will employ a different strategy for dealing with the EUCD, which is not
|
|
present in discussion draft 1, and which will see its first public exposure in
|
|
discussion draft 2, at which point we will then begin discussing with European
|
|
lawyers, businesses and parties, what they think of that proposal.
|
|
</p>
|
|
|
|
<p>
|
|
[53m 00s]
|
|
</p>
|
|
|
|
<p id="q4-what-new-dmca-wording">
|
|
Q4: [question asked without microphone]
|
|
</p>
|
|
|
|
<p>
|
|
[53m 05s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Yeah, the question was asked offline whether I would now disclose what
|
|
that's going to be; I have a 95% certainty that I know what the language is, but
|
|
might I point out that there are two countries presently implementing EUCD right
|
|
under our noses, and I reserve the right to make further changes in light of
|
|
those legal changes if I need to in the next several weeks. The reasons for not
|
|
pre-disclosing things is that I have an obligation of professional caution, and
|
|
my client as you know has a very deep belief in the importance of avoiding
|
|
mistakes that could permanently harmful to freedom. If this were the right date
|
|
to disclose those terms, we'd disclose those terms today.
|
|
</p>
|
|
|
|
<p>
|
|
[53m 50s]
|
|
</p>
|
|
|
|
<p id="q5-removing-privacy-clause">
|
|
Q5: On the DRM front, is the invasion of privacy wording one of the one wordings
|
|
that's going to be removed from this draft?
|
|
</p>
|
|
|
|
<p>
|
|
[53m 55s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Yeah, I expect that language to be gone; I've said that in public on several
|
|
locations. I thought myself as one lawyer that there was a useful role to play in
|
|
the licence for principles that would have given private copyright holders
|
|
around the world a legal weapon with which to deal with spyware problems.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I think those problems are terribly severe. I expect most governments to get it
|
|
wrong and keep it wrong, because their incentives are misaligned: the victims of
|
|
spyware are individual citizens; the beneficiaries of spyware are wealthy public
|
|
and private parties with enormous benefits to gain from the continuance of low
|
|
security; as Microsoft fails, and the primary provider of low network security
|
|
around the world begins to fail; the parties which have benefitted from ten
|
|
years of low network security, and boy have they benefitted!, will begin to look
|
|
for other ways to insure low network security.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
The monopoly was an extraordinarily good way to achieve low network security,
|
|
because the only party who had to take the blame, was the party to whom there
|
|
was no alternative, and which was perfectly happy to have its non-existent
|
|
reputation for integrity blacken still further. Once that is no longer true, the
|
|
problem of how to achieve high network security given many commercial parties'
|
|
desire for weak network security will grow more intense.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I thought it was desireable to afford individual developers the
|
|
opportunity as private attorneys general around the world to use
|
|
copyright law to inhibit bad practices built into their code by
|
|
subsequent modifiers. I now conclude that that's a provision for
|
|
which, by large, the community does not see it in that way, and it is
|
|
not hard to remove it, given the absence of people's interest in
|
|
it. Later I believe they will wish we had done that, probably in the
|
|
same intensity that they would wish that we had solved the patent more
|
|
coercively in 1991, and may very well be glad that we have solved the
|
|
DRM problems for them to the extent that we are going to solve them
|
|
this year. But we will leave that problem to be dealt with by the
|
|
future, because it's clear that the readers of the licence in the
|
|
present don't see its value, and do see significant drawbacks, so I
|
|
believe that it will come out.
|
|
</p>
|
|
|
|
<p>
|
|
[56m 40s]
|
|
</p>
|
|
|
|
<p id="q6-lgpl-and-others">
|
|
Q6: Will we be able to use the same methods used to make the LGPL to make the new
|
|
GPL compatible with the currently incompatible licences like the MPL, the
|
|
Mozilla Public License, or the...
|
|
</p>
|
|
|
|
<p>
|
|
[57m 00s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
You can always use an additional permission, to combine GPL'd code with any
|
|
other licence that you want. So in that sense, yes, you can use additional
|
|
permissions to make trivial compatibility between GPL and other licences. Please
|
|
remember that permissions are removable: downstream from you, parties may
|
|
decide to remove your trivial compatibility provision, thus returning the code
|
|
under the licence to a pure GPL state. Remember that existing LGPL contains a
|
|
provision that says all code licensed under LGPL can always be relicensed under
|
|
GPL. So in turning LGPL into an additional permission, we are not changing any
|
|
behaviour by making it a removable permission on top of GPL. If you used a
|
|
similar approach to make compatibility with another licence, and admitted the
|
|
removability, you would be fine.
|
|
</p>
|
|
|
|
<p>
|
|
[58m 05s]
|
|
</p>
|
|
|
|
<p id="q7-a-contract">
|
|
Q7: How are you thinking about changing something in the title of the
|
|
section, I think it's 9, "not a contract", because that
|
|
that's a bit incompatible with the laws in some place, like in Brazil
|
|
- I'm from Brazil.
|
|
</p>
|
|
|
|
<p>
|
|
[58m 23s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I firmly disagree with that position, but nonetheless we will do something to
|
|
meet these needs. I ultimately regard these believes as narrow-minded and
|
|
foolish, it belongs to half a dozen law professors around the world, each of
|
|
whom should check his cards again, and it's all "he". They are people with gray
|
|
hair and old minds. They're not very old minds, because if in each of their
|
|
legal systems they went to their old legal dictionaries and looked at what the
|
|
word licence means, or if they got real Roman about it and went and looked in the
|
|
Institutes of Justinian to find out what licence means, they would discover that
|
|
a licence is a unilateral permission, not an obligation, and so what happens is
|
|
that these minds that say these thing, they're stuck in a little space, a
|
|
thousand years after Justinian and before the Second World War.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Nonetheless, there's a view, OK? And so that view, which has been hardly
|
|
repeated, deservers to be regarded with respect, though I haven't given it any
|
|
respect in my personal comments, because I'm entitled to a personal opinion.
|
|
As a working drafting lawyer, I expect that section 9 will bear, when it is
|
|
released, a title something like "acceptance not required to receive and run
|
|
copies", which is a statement of fact, accurate and clear, and which reduces the
|
|
reliance upon a legal characterisation, increasing reliance on a factual
|
|
consideration, which is in general the course we have taken with respect to
|
|
de-nationalising the licence.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
So much as I believe as one working lawyer that it is a foolish legal position,
|
|
I recognise that it is a straightforward request that can be served and that
|
|
should be dealt with, and we will deal with it.
|
|
</p>
|
|
|
|
<p>
|
|
[60m 40s]
|
|
</p>
|
|
|
|
<p id="q8-asp-loophole">
|
|
Q8: I have two questions. First, do you have anything to say about the
|
|
so called "ASP loophole", or "web loophole"
|
|
because in the morning RIchard said that he saw the possibility to
|
|
adopt some clauses from the Affero GPL to fix this problem, but it may
|
|
be too drastic for GPLv3, but I think this loophole can be very
|
|
dangerous. Some day, our friend Microsoft will be gone, but we might
|
|
have the next enemy, because now we have the so called "Web 2.0
|
|
companies" whose business model is basically built on web
|
|
services. Would you answer this question first?
|
|
</p>
|
|
|
|
<p>
|
|
[61m 40s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Knowing, as I do, that you may very well wind up not getting your second question in,
|
|
but that's all right. Look, here's the situation as I think we know see it:
|
|
there are two ethical points of view about what should happen when you take
|
|
somebody else's code which they wrote to interact with users over a network,
|
|
modify it yourself, and go into business competing with them to serve the same
|
|
people using your modified version of their code: one ethical position is "you
|
|
should be required to give your changes back to the world: you're competing with
|
|
others in the public provision of services based on that code, and you should
|
|
return to commons your modifications, the same as if you were selling or
|
|
distributing that code", that's one ethical point of view.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
The other ethical point of view is that this is a uniquely distinctive situation
|
|
in which any attempt to interfere with the right to keep those subsequent
|
|
modifications private, interferes with the right of private execution and private
|
|
modification, rights that are not to be tampered with. Those ethical points of
|
|
view are both very strong. THere is no benefit whatever to the licence maker,
|
|
or to the free software world in general, in choosing between those ethical
|
|
theories for everybody else.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
If we came to you and we said "we thought about these hard ethical issue; there
|
|
are absolutely good and absolutely clear arguments on both sides, they are of
|
|
equal weight and importance, this decision will have billions of dollars effect
|
|
in the world, we've decided it this way, A way or B" people would rightly say
|
|
"what had you in your world, that justified you with making that
|
|
decision for everybody else".
|
|
</p>
|
|
|
|
<p>
|
|
[63m 50s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
We will not make that decision for everybody. Nor will we make parties who want
|
|
to adopt either ethical theory forego all use of existing GPL code. Imagine for
|
|
a moment that we took out of section 7 the portion that relates to the so called
|
|
Affero GPL clause, we dropped it from the licence: now anybody who wanted to,
|
|
could make a new licence containing that provision, but it would be
|
|
GPL-incompatible, and they could not use any of the world's existing GPL'd
|
|
programs as a basis for building on.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
That would inevitably harm innovation, because it would deprive people of all
|
|
this shareable software. On the other hand, if we decided that every GPL
|
|
included the Affero clause, there would, as you point out, be an awful lot of
|
|
businesses in the world that would lose their right to use GPL'd code, because
|
|
for reasons that they consider good and sufficient for themselves, they do not
|
|
wish to make their private modifications, which convey business advantages to
|
|
them in public facing systems, open to everybody else; they want to keep some
|
|
source code that they have modified, even though they are using that source code
|
|
to relate to the public.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Very well, we say; we would simply allow an additional requirement to be placed
|
|
on some code; if you build an Affero GPL model system, that is one which
|
|
implements services over a network, deals with the public over that network, and
|
|
in which any competitor who wants to use your code to build similar services
|
|
must release their modifications, the best way of doing that is to build your
|
|
whole application under GPL, take the part which does remote network services,
|
|
which may be just one among many modes or models of interaction for that
|
|
program, put that piece under Affero GPL, or add the requirement, is how we
|
|
would say it, and add to that program a feature which allows the user to
|
|
download the server side source.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Once you've taken all those steps, your application can be made of any GPL'd
|
|
parts yours or other people's; the particular part that you wrote to communicate
|
|
with the user over the network bears some additional requirements. Anybody who
|
|
wants to take the whole rest of your application can do so and use it in any way
|
|
they want, including private modifications and public uses.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
And, if they don't like the part that you wrote being under Affero GPL, they can
|
|
rewrite it from scratch, thus minimising the amount of re-implementation
|
|
necessary, in order to take your application, which was Affero-lised, and
|
|
de-Affero-lise it so it can be used for private services. After lengthy analysis
|
|
we have concluded that this results in the optimum level of overall innovation
|
|
and the minimum level of required re-implementation, so that every developer can
|
|
get the result that every developer, or that developer's business, wants to get.
|
|
I do not think that there is another solution available which reduces the amount
|
|
of required re-implementation or which increases the net total of innovation,
|
|
therefore I think this is the right system to apply.
|
|
</p>
|
|
|
|
<p>
|
|
[67m 30s]
|
|
</p>
|
|
|
|
<p>
|
|
Q8b: But we take a very firm attitude toward DRM, right? And I think,
|
|
from a user's view, if we can use the software, I mean the service,
|
|
and we can get the results, but we can't see the source code, it
|
|
should be called proprietary, and it may infringe our the third
|
|
freedom, to help the community. So, maybe I'm too dogmatic but...
|
|
</p>
|
|
|
|
<p>
|
|
[68m 10s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I don't understand how you are loosing any rights. If you write the thing
|
|
yourself, nobody else's code is involved and you can make all the rules that you
|
|
want. If you use other people's GPL'd code to make an application with, how does
|
|
it harm your rights to say you have to respect your users at the same level that
|
|
they respected you as a user when they gave you the code.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
We're not in the business of preventing anybody from doing anything that he
|
|
wants with something he writes himself. The question is: if you get stuff from
|
|
somebody else which constitutes an entire application for public facing
|
|
services, and if he has written his application so that he wants mods released
|
|
back into commons, why should you think that you have a right to deprive him of
|
|
that, and still use his code?
|
|
</p>
|
|
|
|
<p class="indent">
|
|
My notion would be: if you want to re-implement the part of his code which uses
|
|
network services and leave the whole rest of it in place, you get a great deal
|
|
of benefit, you get to use 90% of his code; he gets a benefit: you are required
|
|
to respect the user's rights for that 90% to the same extent that he respects
|
|
the user's rights. If he respects the user's rights a little more in the
|
|
remaining 10% than you wanted to respect them, you have a choice: swallow hard
|
|
and take his approach to your users, or throw away that piece of his code and
|
|
re-implement. That's the minimum size re-implementation for you to have the same
|
|
absolute freedom that you want to have; I don't think you're disadvantaged, I
|
|
think you are advantaged to the extent of the continued shareability of the code
|
|
between two fundamentally ethical positions.
|
|
</p>
|
|
|
|
<p>
|
|
[70m 00s]
|
|
</p>
|
|
|
|
<p id="q9-quasi-official-translation">
|
|
Q9: If it's OK, I'd like to ask a second question, about the
|
|
translation. You said that translation are second best, and I think I
|
|
agree, more or less, but I'm from Japan, where most people, even those
|
|
who can speak English prefer to read the Japanese translation of the
|
|
licences. I understand the idea of official translations may be very
|
|
dangerous, but I think that it would be a good idea to make
|
|
quasi-official translation, which means, it's reviewed by several
|
|
local lawyers, Japanese translations by Japanese lawyers, Spanish
|
|
translations by Spanish lawyers, and at least FSF acknowledge that
|
|
this review has happened.
|
|
</p>
|
|
|
|
<p>
|
|
[71m 00s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I've two things to say about that. The first is that, as Mr. Stallman
|
|
indicated today, the question of translation is open for discussion, and I am
|
|
listening to everybody about it. The second thing I want to say is that I made a
|
|
trip to Tokyo before the beginning of the GPLv3 process, to meet with members of
|
|
"Meek" and "Makey", and to meet with lawyers from all the major industrial
|
|
organisations using GPL in Japan, they were all very gracious with their time.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I said: we're going to make GPLv3, we badly need Japanese lawyers who understand
|
|
this business and its concerns to help us think about every single word in the
|
|
GPL from a Japanese legal perspective; I want to work with the best Japanese
|
|
lawyers you all identify to make this a better licence; they all said "Thank you
|
|
very much, we'd be delighted to do that", and they did nothing. And the reason
|
|
they did nothing was they did not want to expose their lawyers for
|
|
non-privileged conversation on these questions.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
The result is that 12 months after that meeting, which occurred in
|
|
June of 2005 in Japan, I have so far had zero meaningful legal
|
|
assistance from the lawyers working for large Japanese industry. If
|
|
it's important, it's important. If it's important later, it's
|
|
important now. If it would be good to have them make an official
|
|
translation later, then it would be good to have the same lawyers
|
|
involved right now helping us to make a better licence.
|
|
</p>
|
|
|
|
<p>
|
|
[72m 30s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Every single large industrial organisation in Japan has highly talented lawyers
|
|
thinking hard about these questions, and they speak English quite well, as I
|
|
know from having done business with them for years. The problem we are having
|
|
is not a language problem, the problem we are having is not a willingness to
|
|
listen problem, the problem we are having is not a "we don't care about Japan"
|
|
problem, the problem we are having is the parties have decided to wait and keep
|
|
silent too long.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I wish they wouldn't. I think the most useful contribution you could make would
|
|
be to put heat on the organisations to bring their people in and start
|
|
negotiating. It's now more than ready to start happening, we're halfway through
|
|
the process; if my good friends in Japan wait until the eleventh hour plus
|
|
thirty minutes to come and tell us what they think and what they want, they're
|
|
going to be disappointed; not because I'm not going to listen, but because the
|
|
train will have left the station. Please help them to get on board.
|
|
</p>
|
|
|
|
<p>
|
|
Q9b: That's what I'm doing now, I actually agree.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I'm responding to the suggestion that the way we should let them
|
|
participate now is by letting them translate it when it's over. And I
|
|
have said "Gee, that's too bad. That's not a good way. Let's do it
|
|
now!".
|
|
</p>
|
|
|
|
<p>
|
|
[74m 20s]
|
|
</p>
|
|
|
|
<p id="q10-ms-demise-visible">
|
|
Q10: You opened and closed your talk, talking about Microsoft
|
|
capitulation. As someone who has constantly to deal with Microsoft
|
|
meddling with governments and blocking initiatives by sheer amounts of
|
|
money power, and stuff like that, I'm more than keen to believe that
|
|
it is such, and it would be really, a great help for us not have to
|
|
constantly fight that; however, from being exposed to that kind of
|
|
thing too often, I'm not very inclined to be so optimistic as to it
|
|
going to stop anytime soon. What should we be looking for in the near
|
|
future as further indications of this capitulation actually being a
|
|
fact?
|
|
</p>
|
|
|
|
<p>
|
|
[75m 25s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Well, there used to be a Microsoft executive, who was the
|
|
executive vice president for platform technology, whose primary task
|
|
was to "beat Linux", as they described it. His name is Martin Taylor
|
|
and everywhere he went, Martin Taylor was a very important part of the
|
|
landscape of pressure and interaction that you have described.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
After the second great [inaudible] when Windows would only be a little
|
|
late, Mr Taylor was moved to work on Windows Live,
|
|
of which he became the dominant executive.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Earlier this week, suddenly, without any pre-announcement of any kind
|
|
Microsoft fired him. Mr. Taylor has worked at Microsoft since the age
|
|
of 23, he's now 36; he was personally a pet of Mr. Ballmer's; he has a
|
|
great deal of Microsoft stock and no job; I don't know whether you
|
|
would consider that a straw in the wind or not.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I would say this: among the reasons I wanted to do this work now, one of the
|
|
reasons we identified when we started to pick this year to do GPLv3 was that I
|
|
believed that Microsoft would be busy doing something else. Their position in
|
|
our process, their power to disrupt, was a significant concern to me from the
|
|
beginning, when a company is trying to ship a major product of its own, of a
|
|
kind that demands months and months of careful marketing and preparation, PRs as
|
|
well as merchandising, it is not likely that they will spend a lot of money
|
|
saying aggressive bad things about a third party.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
It's not known to be a good way to get your own product to market, to spend a
|
|
lot of time bad-mouthing other people. So I thought this would be the best possible
|
|
year to do this work, simply because Longhorn, now Vista, had to be released
|
|
this year.
|
|
</p>
|
|
|
|
<p>
|
|
[77m 25s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I now believe that it runs a little deeper than that; the charm offensive
|
|
Microsoft is currently conducting, which is palpable to any of us who work in
|
|
this part of the world, the charm offensive Microsoft is conducting is now
|
|
edgier than it used to be for them, there are fewer alternate options.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Of course I don't want anybody to come off alert; I'm a lawyer around here, my
|
|
job is anticipating war and being ready to fight it whenever it turns up. We
|
|
have by no means stopped worrying about aggression. When Samba 4 is released,
|
|
Microsoft will have the best reason for aggression it has had in a long time,
|
|
because it will be competing against something that doesn't just ruin the server
|
|
business for them, it eliminates the server business from them.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
The consequences are not going to be small for a company which already has
|
|
nothing to offer on the server side, and which has never successfully sold the
|
|
client side of anything to global enterprise without a server side to go
|
|
along. That's why the current situation is so dire in business terms for
|
|
Microsoft; that means that they will be, when they act aggressively, if they act
|
|
aggressively, acting aggressively from much greater weakness that they had in
|
|
the past.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Moreover, thanks to Carlo and others in this room and around this room,
|
|
Microsoft is far more constrained by the European Commission anti-trust
|
|
proceedings than Microsoft was ever restrained by any anti-trust proceedings
|
|
anywhere else in the World. For the first time, the company faces the
|
|
possibility of significant alterations to its behaviour mandated within the
|
|
lifetime of one of its products.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
And Vista, a product they are not going to be able to sell to knowledgeable
|
|
consumers, is also in the pipeline at just the moment when it can be decisively
|
|
affected by regulatory orders from the European Commission, and Carlo and our
|
|
colleagues in that litigation have already shown that they know exactly how to
|
|
testify, and exactly what to ask for, and exactly to hold on to the ankle
|
|
without letting go.
|
|
</p>
|
|
|
|
<p>
|
|
[79m 35s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
I'm not here to tell you that this is going to be easy or simple, or that the US
|
|
embassy is never going to be asked again to do a favour for Microsoft in some
|
|
country in the World where the US embassy's word is terribly important. All of
|
|
those things may very well happen. Our general ability to return fire is
|
|
superior to at anytime in the past; our ability to do real strategic damage to
|
|
their earning capacity is stronger than at anytime in the past; our allies more
|
|
firmly believe in the possibility of beating them than at anytime in the past,
|
|
and in Google they face an adversary of whom they are terrified.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Google is from our point of view just a large user of our stuff, but from their
|
|
point of view Google is the business that terrifies them; and therefore, they
|
|
are now dividing their anxiety again for the first time in years. After Mr Gates
|
|
figured out that we were the problem, we were for a long period of time his
|
|
primary anxiety; now, it doesn't matter what makes him anxious in the middle of
|
|
the night, he's just a philanthropist. As for Mr. Ballmer, what makes him anxious in
|
|
the middle of the night? Lots of things make Mr. Ballmer anxious in the middle
|
|
of the night; we're going to keep pumping up his blood pressure until maximum is
|
|
reached, very soon.
|
|
</p>
|
|
|
|
<p>
|
|
[81m 10s]
|
|
</p>
|
|
|
|
<p id="q11-patent-retaliation-freedom">
|
|
Q11: This is a very basic legal question, I am not a lawyer...
|
|
</p>
|
|
|
|
<p class="indent">
|
|
In this country I'm not a lawyer either...
|
|
</p>
|
|
|
|
<p>
|
|
[laughter]
|
|
</p>
|
|
|
|
<p>
|
|
Q11b: I'm an eager reader of Debian Legal, which may be a bad thing, but I'd like
|
|
you to comment, as regards to the GPLv3, on what's called in Debian "the
|
|
dictator test", or the tests that regard something that is not distribution or
|
|
dissemination, as would be for instance the patent retaliation clauses. I don't
|
|
completely understand about how these things can be free, which are really
|
|
restrictions of freedoms that the person would normally have and do not affect
|
|
pure redistribution; one is patent retaliation, the freedom to sue is one that
|
|
one has, supposedly, and the other one is the Affero type of thing; Affero
|
|
affects use, or liberty/freedom 0, not distribution or dissemination which would
|
|
be freedom 1, as far as I understand. Maybe you could comment on that and why
|
|
the GPLv3 takes the view that it takes on those two issues.
|
|
</p>
|
|
|
|
<p>
|
|
[82m 20s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Look, there are two aspects of that question, one of which i think is, as you
|
|
say, the Debian Legal way of life. I try not to interact with the Debian Legal
|
|
way of life, but having just said I'm not a lawyer in this country, I suppose
|
|
there is a reason that in this country I might interact with the Debian Legal
|
|
way of being a little more; I'll try and pretend that I don't know anything
|
|
about law anywhere in the World and then I'll try and think Debian Legal's way
|
|
about the stuff.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
It generally turns out, as I know from having spent almost a quarter of a
|
|
century now as a lawyer for hackers, that when hackers pretend to be lawyers,
|
|
there are certain predictable formulations that they come to; they assume a
|
|
degree of consistence in legal rules that is not achievable; this is a primary
|
|
problem which occurs particularly in US focused conversation, such is that in
|
|
Debian Legal, where the libertarian demand for intellectual consistency, and the
|
|
hacker belief that laws are form of code that are executed without errors or
|
|
ambiguities, joins together to create a particular frame of analysis for legal
|
|
questions.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
It doesn't work very well for me as a lawyer, I think it doesn't work very well
|
|
for lawyers elsewhere in the World, because the one thing which lawyers around
|
|
the world all share is an awareness of the squishiness of law, it is by no means
|
|
the hard arthropod carapace for internal soft organs that non-lawyers have a
|
|
tendency to assume it is.
|
|
</p>
|
|
|
|
<p>
|
|
[84:00]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
With that in mind, the problem of the patent retaliation clauses is not a
|
|
problem in the GPL, for Debian or anybody else. If the Debian legal group had
|
|
decided that the Apache Software License was a non-free licence because it had a
|
|
defensive patent retaliation clause in it some years ago, maybe the Apache tribe
|
|
would have decided not to put such a clause in its licence. We are merely saying
|
|
we are prepared to coexist with it, and since the Apache licence is already a
|
|
free licence, from Debian's point of you, I fail to see how coexisting with
|
|
what's already free could be a freedom problem.
|
|
</p>
|
|
|
|
<p>
|
|
[84m 35s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
So far as the Affero GPL clause is concerned, remember that what it says is: "if
|
|
you get a GPL'd program, that has a facility in it, giving server side source
|
|
code to the user, that's not a removable facility". That's the same statement
|
|
that the GPL makes about interactive display of copyright notices; lots of
|
|
licences in the world graded free say "if the program displays copyright notice
|
|
when it starts running in the form you get it, then you have to leave that
|
|
there", and the reason is for security of attribution, right?
|
|
</p>
|
|
|
|
<p class="indent">
|
|
So here is another non removable element in a free program, placed there out of
|
|
the desire to protect people's freedom. I don't know how the Debian Legal World
|
|
will think about that, I know how the Free Software Foundation will think about
|
|
that; the Free Software Foundation would say: the very fundament of copyleft is
|
|
the desire to limit freedom minimally in order to protect freedom in the long
|
|
run.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
The question to be asked within the Free Software Foundation's ethics
|
|
of law is not "Is this a restriction on freedom?", which is what I
|
|
think I heard the Debian Legal analysis is doing, the question is: "If
|
|
this is a restriction of freedom, is this the narrowest possible
|
|
restriction to protect freedom in the long run, or is there a narrower
|
|
way to accomplish the same protection of freedom, or is it better to
|
|
allow freedom to be defeated in the long run than to impose this
|
|
restriction now?".
|
|
</p>
|
|
|
|
<p class="indent">
|
|
But it is always, I think, in Free Software Foundation thought, it is
|
|
certainly characteristic of Mr. Stallman's thought throughout his
|
|
career, it is characteristic, I think, to be minimalist about
|
|
restriction, not negative about restriction.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
The position being taken is "to have a community requires some minimal
|
|
restrictions to preserve community". We tend to see the other side's
|
|
view of that question "there ought to be no restrictions except those
|
|
which are inevitable" as too libertarian to be firmly communal. If
|
|
you want to keep a community in being you may have to say "clean up
|
|
after your dog on the sidewalk". Yeah, it's a restriction on use, but
|
|
it's an alternative to having a lot of dog shit on the sidewalk.
|
|
</p>
|
|
|
|
<p>
|
|
[87m 10s]
|
|
</p>
|
|
|
|
<p id="q12-contract-theory">
|
|
Q12: Just a small speculation. You said that the licence is a unilateral
|
|
permission. Why is that so hard for most law professors to understand? I agree
|
|
with it, but I just don't understand why very few would like to argue
|
|
in that direction.
|
|
</p>
|
|
|
|
<p>
|
|
[87m 25s]
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Because in the course of the 20th century, post Edison, the copyright licence
|
|
became a device for getting more out of the customer than copyright allowed.
|
|
Once the Edisonian model of culture and distribution had come to be second
|
|
nature, very few publishing parties wanted only what copyright gave them, for
|
|
multimedia or technically sophisticated works, they wanted more than copyright
|
|
could give them, so they entered into contracts with their customers, one part
|
|
of which was the licence, and another part of which was additional obligations
|
|
that they wanted users and customers to have
|
|
</p>
|
|
|
|
<p class="indent">
|
|
So over the course of decades, a copyright licence ceased to be only a licence,
|
|
and became very largely a contract for customers' obligations, because the
|
|
customer's obligations were a big part of what the party writing the licence,
|
|
which wasn't the customer, wanted to see in there.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
We came along and said "We don't even want all of what copyright gives us, let
|
|
alone do we want anything else", so we can use a pure licence, because most of
|
|
what we want to do is to give away copyright law, and no part of what we want to
|
|
do is to take additional obligations from people that aren't within the scope of
|
|
copyright law.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Therefore, for the first time in decades, somebody was building a business model
|
|
around a pure licence, and a whole bunch of lawyers who grew up in the world
|
|
after Edison and before Stallman said "we've never seen one of those! Every
|
|
licence must be a contract, because every licence involves obligations by the
|
|
licensee", and we said "That's new! That's novel! That's crap!".
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Users have rights: you shouldn't take people's rights
|
|
away from them using contracts, where what you're giving them is just
|
|
a program to run. It's in the nature of the criticism we were making
|
|
of the legal institutions being used by others, that we were calling
|
|
attention to a thing which had happened barely consciously, and which
|
|
is still a kind of unreleased restriction in some people's minds.
|
|
</p>
|
|
|
|
<p class="indent">
|
|
Alright, thank you very much, I appreciate it.
|
|
</p>
|
|
|
|
|
|
<p>
|
|
[Q&A ends, applause]
|
|
</p>
|
|
|
|
<h2>Further information</h2>
|
|
|
|
<ul>
|
|
<li>For general information, links, and a timeline, see
|
|
our <a href="gplv3.html">GPLv3 project</a> page</li>
|
|
|
|
<li>See
|
|
the <a
|
|
href="/projects/gplv3/europe-gplv3-conference.html">conference
|
|
webpage</a> for recordings, transcripts, and summaries of the other
|
|
presentations</li>
|
|
|
|
<li>You can support FSFE's work, such as our GPLv3 awareness work,
|
|
by joining <a href="http://fellowship.fsfe.org/">the Fellowship of
|
|
FSFE</a>, and also by encouraging others to do so</li>
|
|
|
|
</ul>
|
|
|
|
</body>
|
|
|
|
</html>
|