Hi Russ, At 2025-05-06T08:48:13-0700, Russ Allbery wrote: > Andrey Rakhmatullin <w...@debian.org> writes: > > Simon Josefsson wrote: > > >> I don't think Debian is perfectly consistent in applying that > >> principle: for example, the text of the Developer Certificate of > >> Origin (DCO) is included in Debian packages (in 'main') and has a > >> clearly non-free license, and IIRC sometimes not even in > >> debian/copyright. > > > Same for the text of GPL. > > License texts have always been a special exception, and I kind of wish > we would amend the DFSG to make that clear. Not because I think the > status of license texts is somehow in question, but because having one > undeclared exception makes people think we should have other > undeclared exceptions. I would much prefer to take the time to > enumerate all of our major exceptions.
The principle I remember articulating back in my debian-legal days was,
if a package carried some information whose retention was necessary due
to the regime of copyright law itself--contrast with the desires of
individual copyright holders--for us and our users to intelligently deal
with the package's copyright-applicable contents, then it didn't matter
if said materials were "non-free".
A significant reason for that stance is that effacing or altering an
applicable copyright notice is itself a criminal offense in some
jurisdictions, including the United States. See, e.g., USC Title 17,
Sections 506(c) and (d).[1] There are of course civil liability
concerns as well.
But such materials have to be squarely on point with respect to (1)
identifying the copyright holders and (2) establishing the permissions,
if any, granted to copy, modify, and distribute the work in question.
So, is it a problem if the GNU GPL says that "changing [the text of the
license] is not allowed"? Not really, because (a) changing the text of
a license _as applied to a specific work_ could constitute an act of
infringement with respect to that work, because it could be a form of
fraudulent copyright notice, and (b) it turns out that this exception or
loophole is not even necessary in the GPL's case, because the FSF
appears to tolerate people re-using the text of the numbered sections of
the GPL; that is, the stuff between
TERMS AND CONDITIONS
and
END OF TERMS AND CONDITIONS
inclusive. The FSF regards the GPL's "Preamble" and "How to Apply These
Terms to Your New Programs" sections as copyrightable and constitutive
of original expression, a defensible claim. I've been out of the
license compliance business for a while but I recall that at least one
software project adopted the aforementioned abridged version of the GNU
GPL, gave it another name, and carried on with its activities for years.
We can't be sure if promulgators of other lengthy license texts have a
similarly tolerant attitude. Anyone want to try it with, say, the CDDL?
Whether contractual or license-provisional language can itself be
subject to copyright is an open question in the United States. Back
during the Bush Administration we saw lobbying efforts by industry
consortia to to incorporate copyrighted regulations--drafted by the
sector thus regulated, naturally--by reference into statutory law. I
seem to remember something similar happening in one state with building
codes, in an effort to bring about a Golden Age where no one could
undertake a construction project at any scale without paying a license
fee to read the legal requirements one had to follow to keep one's
project from being condemned/seized/bulldozed by the government. I'm
sure it looked to its backers like a wonderful racket; laboring for a
wage is detestable, but laboring for a windfall is genius.
Fortunately, such efforts have seen only limited success.[2]
These brilliant strokes of rentierism lead to something of a federalism
debacle, since copyright is a power explicitly reserved to the _federal_
legislature (Congress) under the Constitution, and neither delegated to
the states nor, it seems, susceptible to a 9th or 10th Amendment attack.
Getting back to practical considerations, we can apply a test.
If the work in question were to fall into the public domain, would we
still have to retain the non-modifiable materials in question?
The answer to that is almost always no. License texts can go.
Copyright notices can go. Certificates of origin can go. Once
something is in the public domain, it can be quoted, adapted, and
repurposed as freely as the works of Shakespeare or Milton.
There _is_ a gray area, where a copyright holder can attempt through the
monopoly rights granted to them by copyright law to compel the
"bundling" of some materials with others. As above, where these
materials are necessary to understand and accurately disseminate the
copyright-related permissions and restrictions attaching to a work, and
to identify and potentially locate the parties holding copyright, such
compulsions are generally thought unobjectionable.
Where such material advertises its nature as auxiliary to the purpose of
the work in question (see GNU FDL §1[3]), Debian has historically
rejected such bundling efforts.[4] So have other distributors,
especially commercial ones, often by omitting the work(s) entirely.
> This is probably the rules lawyer in me who likes having everything
> pinned down as well as we can.
>
> I do still want us to remain flexible around edge cases and interpret
> the DFSG as humans and not like a computer program, but licenses are a
> sufficiently obvious exception that I think we should ideally spell
> that out, along with anything else that's similarly substantial and
> common.
I agree. We should articulate and hew to policies that reflect our
ethical values, and if litigation or legislation should arise in
conflict with our policy, we must then adapt. But not before then.
For now, we should do the right thing.
What the right thing is, is for GR balloting to determine, I reckon.
Regards,
Branden
[1]
https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section506&num=0&edition=prelim#:~:text=(d)%20Fraudulent%20Removal%20of%20Copyright%20Notice%20.,shall%20be%20fined%20not%20more%20than%20$2%2C500.
[2] https://crln.acrl.org/index.php/crlnews/article/view/17438/19245%20Any
[3] 'A "Secondary Section" is a named appendix or a front-matter section
of the Document that deals exclusively with the relationship of the
publishers or authors of the Document to the Document's overall
subject (or to related matters) and contains nothing that could fall
directly within that overall subject.'
There were some notorious cases in the first decade of the 2000s of
people even in GNU projects hyper-aggressively applying Invariant
Sections, which under the FDL's own terms have to be "Secondary
Sections". As far as I know GNU projects all got pulled into line,
but some others may remain, such as one real-world case (not from
GNU, I think) identifying "THE WHOLE DOCUMENT" as an Invariant
Section. Jörg Schilling may have passed, but his approach to
license interpretation[5] doubtless lingers among others. On the
bright side, some GNU projects eschew the exercise of the GNU FDL's
Cover Text and Invariant Section provisions; some even dual-license
their Texinfo manuals (which are the typical GNU vehicle for
FDL-related policy decrees) under both the GPL and FDL.
[4] https://www.debian.org/vote/2006/vote_001
[5] https://lwn.net/Articles/346540/
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