Proposal to change the GPL

The intention is pure, but this isn't a good idea at all. Free software is about freedom and inclusiveness, not exclusiveness and denial of freedom to other people.

I'm not sure if the poster thinks that doing this would avoid future lawsuits or if it would decrease the liklihood of other companies bringing suits against free software vendors, or if it's just out of vindictiveness, but the first and second wouldn't work, and the third just doesn't make any sense.

I would agree that the BSD license is the best license out there if it weren't for the fact that scrupulous people are out there, and they don't care about free software. The restrictions that are in the GPL IMHO should be viewed not as evil restrictions that the FSF wants to jam down our throat, but as a minimum amount of protection against the not entirely honest intentions of some of the people out there. And yes, they can break them and not tell anybody about it, but for that matter, any license can be broken in that way. The point is that the GPL needs to have as few restrictions as possible. And while the "you can't make this software any _less_ free in any way" restrictions are needed, these types are not good.

What is a company? If I work for the MPAA and then quit my job, can I use free software? What if I'm a consultant and I'm working on a job for the MPAA? What if I work for the MPAA and I'm goofing off at my job?

The real kicker is this: check out the open source definition which is widely regarded to be much more lax than the requirements of Free Software. If the GPL contained this clause, you'd be violating section 6, you'd be descriminating against particular fields. (Granted not because of their particular field, but you would still be discriminating against them). Do we really want a GPL that doesn't even meet the OSD?

And finally, where does it stop? If we put a restriction on the GPL saying that so-and-so can't use the software, why not also ban people who have been caught violating other licenses before? Why not ban people who are writing or using competing pieces of software? Why not disallow the use of GPLd software on non-free systems?

You may think these sound silly. That's because they ARE silly. Adding restrictions to the GPL is just not a good idea. People carp enough about the restrictions on the GPL. I consider the ones it has now to be the minimum protection needed. If you want to add restrictions to the GPL, check out some of what Bruce Perens has written about the possible need for its modification in the age of component systems where the lines between one package "using" another package (and thus being subject to the terms of the GPL) become more fuzzy. But don't restrict the software based off of lawsuits, something that has absolutely nothing to do with software to begin with.

I don't mean this as a flame, I just have a strong feeling that further restrictions are not what is needed. The freedom of the GPL needs to be stressed, and its inclusivity, not its restrictions and exclusivity.

The intention is pure, but this isn't a good idea at all. Free software is about freedom and inclusiveness, not exclusiveness and denial of freedom to other people.

Like denying people the freedom to embed GPL'd code inside a proprietary application? My proposal sits well with the spirit of the GPL; it removes some freedoms to allow more total freedom.

I'm not sure if the poster thinks that doing this would avoid future lawsuits or if it would decrease the liklihood of other companies bringing suits against free software vendors, or if it's just out of vindictiveness, but the first and second wouldn't work, and the third just doesn't make any sense.

My intention is to disincentivize people from doing things that restrict the amount of free software out there.

What is a company? If I work for the MPAA and then quit my job, can I use free software? What if I'm a consultant and I'm working on a job for the MPAA? What if I work for the MPAA and I'm goofing off at my job?

In the case of the MPAA, all its member companies would be affected by the ban on using GPL3 code, while their ban on DeCSS was in force. In the case of an individual employee, what they did in their own time, or if they moved to a separate employer, would be unaffected.

The real kicker is this: check out the open source definition which in widely regarded to be much more lax than the requirements of Free Software. If the GPL contained this clause, you'd be violating section 6,

Not at all. Companies that launch lawsuits against free software aren't a "Field of Endeavour" (any more than people who embed GPL'd code inside a proprietary application are). I might be violating section 5, but I explain here why I think not.

The point of the current GPL, is to maintain the freedom of software. This is trying to change the whole thing the GPL stands for. Remember this license was created by the GNU to make software as Free as possible.

Also would happen if an Open Source developer has to sue an Open Source software company, would that developer be resticted to never use Open Source tools again.

Sometimes this is the price of freedom, you have people you'd rather not have using your software, using your software, but that in itself is nature of the freedom. Take away someone's freedom and someone will start taking away yours.

I think we should be proud of our free, non restrictive licensing and should not restrict it due to pressures from outside. If they get us to produce an exclusive license, they will have it their way another step towards free software. It is very much similar when a terrorist group forces a government to extreme measures, creating more protest and chaos, terrorists get it their way.

The main problem I see is that this would require the GPL to be a shinkwrapped licence, which, as I understand it, is not valid in many jurisdictions. The GNU GPL currently makes no restrictions on use - it only allows people to do things that would otherwise be illegal.

But, considering the restriction... Surely it would not stop here? We can whine about MPAA actions, but the real blame lies with the legislature of a well-known country between Canada and Mexico - should therefore that legislature be forbidden from using our software? The entire US Government? Everyone who deals with the Government? Other nations' governments who recognise the US Government as the legitimate government of the US? How about anyone who condones it by voting for the side that implemented the DMCA (ie both sides)?

It might be interesting to see if the patent clause could be expanded, to force companies to choose between not creating derivative works or copies of GPLed software, and not pursuing patent violations made by GPL software, but I'm yet to be convinced...

Section 5 is a big grey area that can (and has) been used to refer to anything, but such a change would seem to violate section 6 as well:

The license must not restrict anyone from making use of the program in a specific field of endeavor.

That would include fields of endevor such as pursuing legal action against free software. And,

For example, it may not restrict the program from being used in a business

Full agreement with the comments of gnuchris, strlen, and Uruk btw. A much better form of opposition is just boycotting the wares of the MPAA. I don't use DVD's -- do you?

This is what I was talking about when I referred to restrictions that the GPL has in order to protect you against less reputable people. If it were OK to imbed GPLd code inside of a propreitary application, what's to say somebody couldn't steal your code, put it in MS Word, and then sue you for using code that is under their super restrictive license? IANAL nor do I want to be, but this provision is there so that the GPL which is trying to be used as a tool of freedom cannot be turned around and ironically used against people in a way that doesn't jibe with the idea of freedom in software.

My intention is to disincentivize people from doing things that restrict the amount of free software out there.

How would it do that? Actually it seems that whenever software has legal troubles, it becomes much more popular, and sprouts 10,000 clones. Look at Gnutella and Napster. Suing doesn't restrict the amount of free software out there, it just draws attention to the idiocy of the company in question. Do you know just how many people have a copy of DeCSS now for the exact reason that the MPAA was trying to squelch it? How many people (particularly the slashdot kiddies) downloaded the software and even posted mirrors when they didn't even have a DVD drive? I have never seen a lawsuit destroy free software, I"ve only seen them act as free PR, free advertisements, and act as MASSIVE popularity boosters, all of which work toward freedom.

In the case of the MPAA, all its member companies would be affected by the ban on using GPL3 code, while their ban on DeCSS was in force. In the case of an individual employee, what they did in their own time, or if they moved to a separate employer, would be unaffected.

While the ban on DeCSS was in force...you've changed your requirements a little bit. So they would only be banned from using free software as long as they were actually taking legal action or otherwise thwarting free software. Why single out companies? Why not individuals too? Because they're not a problem now? Should we necessarily take a plug-the-holes approach to the most fundamental piece of the free software community?

Not at all. Companies that launch lawsuits against free software aren't a "Field of Endeavour" (any more than people who embed GPL'd code inside a proprietary application are). I might be violating section 5, but I explain here why I think not.

One of the big differences between your restriction and the ones the GPL already has is collateral damage. As you pointed out in your document, if GPL3 was accepted, 90% of programs would be under that license. That's a huge problem. Because under GPL2 if you break any of the terms, your rights in that license are terminated. If on the other hand under GPL3 you sue Joe Blow's Gnome Hello Foundation, you can no longer use emacs. You can no longer use the GIMP. Forget linux (the kernel, or the system for that matter). Because of this collateral damage, you should think about proposed additions or subtractions to the official GPL as many times as there are software applications that would be licensed under it. The flaw here is that you said it would prevent people from using GPLd software, not from using the program they're suing. I'm guessing you intended this collateral damage.

So I propose a new version of the GPL that would rectify this omission, by preventing anyone from using GPL'd software if they had taken any legal action against any free software program.

You can't sue software, only people (either natural persons, or corporations). So, the question is: if I sue a freesoftware author X, does that mean I can't use any GPL'd software, or I just can't use X's software.

The first case is obviously ridiculous: aside from the contractual difficulties of tying to "all other software released under this license" it would mean that some random person I was suing over (say) noise abatement could release a GPL'd Hello World and terminate my rights to use Debian.

The second case is also difficult: the IBM Public License had something similar in a draft, but I think the opensource people rejected it. It becomes too difficult if (say) $randomcompany has to stop using Postfix because of a minor disagreement with IBM about some PC deliveries.

This is exactly the main problem that RMS had with the Plan 9 licence. As he said:

This seemed reasonable to me at first glance, but later I realized that it goes too far. A retaliation clause like this would be legitimate if it were limited to patents, but this one is not. It would mean that if Lucent or some other contributor violates the license of your GPL-covered free software package, and you try to enforce that license, you would lose the right to use the Plan 9 code.

The key flaw in this proposal, as I see it, is attempting to use the GPL as a tool for furthering aims other than making the particular tool it licenses more free.

For example, there are no provisions in any major license against repressive governments (say, Myanmar) using that software. This is not because the authors of these licenses don't care (RMS, for instance, cares very deeply about many political causes), but b/c licenses are neither terribly effective at furthering other causes, nor are they the place to get into such disputes. Imagine if someone suggested that the US government could not use given-piece-of-software (say, any GNU software?) b/c the US executes people. These disputes are beyond the narrow scope of software licensing; the FSF doesn't pretend to control the private politics of all users of free software.</a>

With all the talk of the ``Open Software Community'' etc., it is tempting to try to use any tool to protect the community, but licenses are not appropriate. Instead, consider donating to the EFF, boycott the RIAA, MPAA, Amazon, etc. Or get involved in politics, if that's your bent.

That being said, the problem the author seems to be trying to attack is abuse of the legal system to restrict the rights of software authors and users. His proposal does this by restricting the rights of software users. This is a slippery slope.

It appears quite likely that one of the effects of the Cold War waged on the Soviet Union and its allies, with the US at the forefront, was to hasten the demise of the Soviet Union. This was justified with the argument that the Soviet Union was a large, bureaucratic, highly centralized state which meddled in the affairs of other states and kept tight control over its citizens. There were, however, some notable costs. The McCarthy Era was a byproduct, as was the restriction on exporting strong cryptography, which came to be considered a "munition." And mechanisms were created for a variety of sanctions against countries perceived as opposed to US interests, including quite a bit of meddling in the internal affairs of other countries. And it's not an accident that the budget and bureaucracy of the central US government increased measurably during this period.

When you fight fire with fire, you end up looking more like your enemy at the end of the fight than you did when you started. It's not a good idea.

You understand it is possible to generate really illegal software, ie. software with no purposes other than commiting crimes (don't ask me for examples - it is not impossible). As a practical joke the author releases it under your GPLv3. You guess the rest.

The point of the current GPL, is to maintain the freedom of software. This is trying to change the whole thing the GPL stands for. Remember this license was created by the GNU to make software as Free as possible.

No. The GPL forbids some practises, in order to increase the amount of free software available to everyone. People in the USA aren't allowed to use DeCSS. This is wrong, and if modifications to the GPL prevent situations like this, and lead to an overall increase in free software, that's good.

I think we should be proud of our free, non restrictive licensing and should not restrict it due to pressures from outside.

If you think like that (which is a prefectly reasonable point of view, IMO), you shouldn't be using the GPL anyway, you should use a BSD-like license.

The main problem I see is that this would require the GPL to be a shinkwrapped licence, which, as I understand it, is not valid in many jurisdictions.

Shrinkwarpped licenses are valid in the USA, as I understand it; and the USA is the main arena where people like the MPAA are trying to forbid free software.

But, considering the restriction... Surely it would not stop here? We can whine about MPAA actions, but the real blame lies with the legislature of a well-known country between Canada and Mexico - should therefore that legislature be forbidden from using our software? The entire US Government?

No, because that would be counter-productive. The test of a change to the GPL should be: will it lead to the availability of more free software? If not, don't make the change.

Section 5 is a big grey area that can (and has) been used to refer to anything, but such a change would seem to violate section 6 as well:
``The license must not restrict anyone from making use of the program in a specific field of endeavor.''
That would include fields of endevor such as pursuing legal action against free software. And,

Why? It doesn't include fields of endeavour such as liking proprietary code with GPL'd code, does it?

Suing doesn't restrict the amount of free software out there, it just draws attention to the idiocy of the company in question. Do you know just how many people have a copy of DeCSS now for the exact reason that the MPAA was trying to squelch it?

Good point. I'm one of those people.

While the ban on DeCSS was in force... you've changed your requirements a little bit. So they would only be banned from using free software as long as they were actually taking legal action or otherwise thwarting free software. Why single out companies? Why not individuals too?

If people repent and stop forbidding free software, they should be forgiven; this gives them an incentive to do the right thing. Companies and individuals would be treated the same way by the new license conditions.

This is exactly the main problem that RMS had with the Plan 9 licence. As he said:
``This seemed reasonable to me at first glance, but later I realized that it goes too far. A retaliation clause like this would be legitimate if it were limited to patents, but this one is not. It would mean that if Lucent or some other contributor violates the license of your GPL-covered free software package, and you try to enforce that license, you would lose the right to use the Plan 9 code.''

But this isn't quite what I'm proposing. I'm proposing that someone be forbidden to use GPL3'd code only if they sue someone where their case, if they won it, would prevent use of free software. So if I tried to ban anyone from possessing/distributing DeCSS, or if I tried to forbid an open source e-commerce package because it used my patented techniques, then I'd be covered by the ban. But if I sued my next door neighbour because he broke my window, and he happened to be an open-source author, the ban wouldn't apply to me.

With all the talk of the ``Open Software Community'' etc., it is tempting to try to use any tool to protect the community, but licenses are not appropriate. Instead, consider donating to the EFF, boycott the RIAA, MPAA, Amazon, etc.

I do all these things already. Do you really think the MPAA etc give a shit if a few thousand programmers boycott their goods?

You understand it is possible to generate really illegal software, ie. software with no purposes other than commiting crimes (don't ask me for examples - it is not impossible). As a practical joke the author releases it under your GPLv3. You guess the rest.

This is a very good point. I think perhaps my proposed modification should be changed to:

any person or organisation shall be forbidden to copy, execute or 
use this program if they launch a civil suit that:
  (i) seeks to forbid the use of any open source program, and the
      suit is one for patent infringement,
  (ii) seeks to forbid any possession or distribution of any open
      source program, or
  (iii) seeks to forbid any hyperlinking to any open source
      program

philhunt: in the comments to your proposal to change the GPL, we've already had two slight modifications/additions to your proposal. The first was that people should eventually be forgiven of the ban on their use of free software, and the second was the three item list you proposed in reference to the poster who talked about illegal software under GPL3.

The GPL was conceived by GNU not just by RMS but by lawyers who are actually much more fit to discuss any of these points than either you or I. There was a lot of consideration that went into the GPL, including even issues of what to do if any portion of the GPL was found to be unenforceable under the laws of some other nation. The GPL as we currently have it is something that is very, very rare - it is something that a majority of free software hackers agree on. So what we've got with the current GPL is a well though-out license that many people agree on, (because if they don't, they're free to use something else) and something that has thus far stood the test of time. Sure, you can say that the GPL has never been tested in court, but that very fact could be used as a testament to its strength. (As in it might not have ever been tested because nobody thought they could win against it, which would be a good thing).

The proposal that you've put forward has met a fair amount of resistance from other Advogato posters, and has been amended twice in less than a day only by listening to the issues brought up by casual posters. Who knows what a professional lawyer could do to it in several months of review? In short, I'm not totally against additions to the GPL, but this addition IMHO seems to break down consensus on free software (in that we would no longer have a license that everybody agrees on, and it would foster people moving to other licenses and their own derivatives of the GPL). I'm also not convinced that it would do what it claims to do. And if casual IANAL posters can cause the need for two additions in 2 days to cover things that were missing (whether they were originally intended or not is irrelevant, they weren't in the formal proposal) then I have to say that I don't think it's very well thought out.

Oh, and by the way, the argument that descriminating against people in the license is OK because the GPL descriminates against those who link free software and it's still open source is not valid. Mainly because "He's doing it, so why can't we do it too?" isn't a good reason by itself, but also because the restrictions in the GPL govern interaction with software. Your restriction deals with lawsuits, which have nothing to do with software. I agree with one of the previous posters in that social goals unrelated to the use of software (such as whether or not a company sues an individual over matters of IP) are best pursued in other places other than licenses.

I agree that my proposals haven't been fully thought out yet, and that they need more consideration, especially by lawyers.

I would expect that if the FSF decide after careful consideration to make changes in this direction, they will get their lawyers to word it in a way that is legally watertight.

;-)

While my bitter and cruel side agree that these changes should be made, I don't think it is such a good idea. Can it really be done? Can certain parties really be banned from using "free" software"? Isn't this discrimination? If this can be done, how does one oversee that they do not use GPL'd software? What actions would be taken if they use GPL'd software? Would there be a lawsuit against the MPAA? To me, this whole idea sounds like a childish plan for revenge. "Since you don't like my new toy car, you can't play with any of my toys at all!" heh.

I think the GPL works just fine, and noone should mess with it. If you want this new liscence, then give it a new name. There are very philosphical things about using the GPL, and to change it would be to change a whole philosophy of computing.

My current thought is that the only addition necessary to the GPL is:

Any person or organisation shall be forbidden to copy, execute or 
use this program if they launch a civil suit that:

    (i) seeks to forbid the use of any open source program, and the
   suit is one for patent infringement,

    or (ii) seeks to forbid any hyperlinking to any open source
   program

How does this stop a company setting up a subsiduary called "Open Source Suing Ltd", and have that due the suing instead?

If that is prohibited, wouldn't that also prohibit investors in public companies from GPLed software?

That's why I think it should be worded as an affirmative license. The licensee should grant to the licensor a sublicensable right to use any patents (and possibly other rights such as the right to build access devices under DMCA) held by the licensee.

That makes this "improved GPL" look more like a cross license.

I'd say this variation ought to be tried, but rather than risk GPL's integrity, it ought to be tried on a new licence. Call it Legal Reciprocity Licence (LRL) for the purpose of this discussion...

There will be people who will want to use LRL. If LRL is successful over time and stands up both in court and in the community, then its features will likely make their way into other licences, possibly including future GPL versions.

The open-source community is a genetic algorithm -- good code and good licences mutate their way to the top of the food chain.

In the meantime, adding LRL features to GPL without prior testing would likely make quite a few people bail out of GPL.

I say "stands up in court", because LRL will likely make its way there very quickly -- its very nature ensures that. Someone would have to file those suits, pay the expenses, and hang in there long enough to see it through. This added "market friction" of an LRL-based community might make it too energy-inefficient compared to GPL.

It's like patents -- at least in the U.S., all a patent gives you is the right to sue someone. You have to do your own enforcement. LRL would give you the same "benefit".

My own guesstimate is that, as good as it would feel to have an LRL "mine" planted under potential litigators, the gentle, persistent pressure of GPL will beat LRL over time. But the only way to find out for sure is to run the test.