Re: inquery about "GPL with commercial exception"

[Florian Weimer]

* Ben Finney:

> As an interesting point, GPLv3 is even better for this: it has a clause
> (GPLv3 §7) that explicitly grants the recipient the freedom to ignore
> the offending additional restriction, and to strip that restriction from
> the terms when they redistribute the work.

It's somewhat doubtful this applies if the original copyright holder
added the restriction, even for works originally released under the
GPL, version 3.  When confronted with such conflicting declarations of
intent, the conflict has to be resolved somehow, and the personal
declaration of the copyright holder likely takes precedence over some
fine print listed somewhere in a run-of-the-mill license text (mainly
because the copyright holder is clearly aware of their personal
statement, but not necessarily of the fine print).

If you have to use a GPL upgrade clause to arrive version 3, and then
remove the additional restriction, things are tilted even more in
favor of the copyright holder's stated restrictions, especially if the
publication of their work predates the GPL, version 3.

In any case, I find this discussion a bit besides the point because
Debian should honor upstream's wishes regarding distribution and use,
even if not legally required to do so.

Re: inquery about "GPL with commercial exception"

[Ben Finney]

Ben Finney  writes:

> That much was already clear. It's still not a coherent license, under
> either of those conditions, and hence grants no valid license to the
> copyright holder.

I wrote that incorrectly: it should end with “… no valid license from the
copyright holder”.

-- 
 \  “The history of Western science confirms the aphorism that the |
  `\ great menace to progress is not ignorance but the illusion of |
_o__)knowledge.” —Daniel J. Boorstin, historian, 1914–2004 |
Ben Finney

Re: inquery about "GPL with commercial exception"

[Debian/GNU]

On 10/09/2015 03:40 AM, Ben Finney wrote:
>> > - they could dual-license the work under "GPL+exceptions" (to spare
>> > their happy audience) and under a "Linux Sampler License" (which would
>> > be the same but under a different name)

just to clarify.
the proposal was to dual-license under
(1) a license termed "GPL + exceptions", which refers to the GPL but
adds a non-commercial clause
(2) a license named "Linux Sampler License" which prohibits commercial
use but *apart from that* grants the same rights as the GPL.

in practical terms, (2) would most likely be a renamed copy of the GPL
that has the non-commercial restriction added and the clauses that
prohibit that addition be removed from the original text.

> The combination, as discussed, is not a valid license the recipient can
> coherently make use of under copyright law. So that's basically a
> misleading way to effectively grant no license.

if by the "combination" you mean the "GPL-exceptions" then yes, this is
true, but should have little practical impact.

esp. i think that if the licensor offers their work simulatenously under
multiple licenses, then those licenses do not affect each other.
e.g. i can dual-license things under the GPL and under some commercial
license, and in no way does the GPL have any effect on the commercial
license.
similarily, i think i can dual-license under the BSD-3 and some totally
bogus and self-contradictory license ("BScL").
even if the self-contradictory license will never make it through any
court, the BSD-3 is a valid license.

every licensee can pick the license they want.

but since the distribution model of the software is open, nobody has to
make their pick explicit, unless being forced to do so (e.g. because
they want to re-distribute the software; or because they are going
through court).

so when it comes to making the pick explicit, the licensee has two choices:
- a valid license ("BSD-3")
- a void license ("BScL")

if they then pick the BScL, they may find that that is a bad idea, but
they might as well pick the BSD-3.

this basically shifts some responsibility (for picking a *valid*
license) from the original authors to their users, but i don't see why
this should be prohibited.


> If they want to grant a set of license terms more restrictive than the
> GNU General Public License, they have no permission from the FSF to use
> that name for the license terms.

hence the suggestion to create another license (based on the GPL, but
not being *the* GPL) under i different name.


gfmdsr
IOhannes



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Re: inquery about "GPL with commercial exception"

[Fabian Greffrath]

Am Donnerstag, den 08.10.2015, 23:39 +0200 schrieb Francesco Poli:
> Just to be clear, my own personal opinion is that
> "GPLv2 + restrictions" is self-contradictory and thus possibly void:
> I would not consider software released under such terms as safely
> distributable.

FWIW, I share this view.

 - Fabian


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Re: inquery about "GPL with commercial exception"

[Gunnar Wolf]

Francesco Poli dijo [Wed, Oct 07, 2015 at 11:50:53PM +0200]:
> I personally think it is indeed relevant.
> 
> Let me try to explain.
> The term "further restrictions" is meant "with respect to the
> GPL terms", not "with respect to GPL terms + any terms added by the
> copyright holder".
> Hence releasing software under "GPL + further restrictions" creates a
> self-contradictory license, where anyone willing to redistribute has to
> comply with the following conditions:
> 
>  • redistribute under the GPL terms
>  • do not impose any further restriction (with respect to the GPL)
>  • do not drop the restrictions which are already present (copyright
>laws do not allow distributors to drop restrictions)
> 
> One cannot comply with all these conditions at the same time.
> The "GPL + further restrictions" license is therefore
> self-contradictory.

Right. But a content creator (in this case, a software author) is free
to choose whatever terms they see fit for their work. In this case, if
what they come up with that best describes their intent is "something
similar to the GPL, but adding a restriction to it to prevent
appropriation in commercial settings", they are entitled to.

And yes, expressing it as "GPL + restrictions" is unfortunate; perhaps
describing it as a "restricted GPL" is clearer. It legal code were
interpretable as software, the "work" object would be restricted
before being "blessed" (yes, I'm marked with Perl) as GPL, hence the
GPL would not affect its fundamental nature.

Anyway, further discussing the matter won't clarify it much. The clear
result, /methinks, is that we all agree this is DFSG-unfree. Whether
it is distributable in non-free... Is subject to discussion.

Re: inquery about "GPL with commercial exception"

[Debian/GNU]

-BEGIN PGP SIGNED MESSAGE-
Hash: SHA256

On 2015-10-08 16:32, Gunnar Wolf wrote:
> 
> Anyway, further discussing the matter won't clarify it much. The
> clear result, /methinks, is that we all agree this is DFSG-unfree.
> Whether it is distributable in non-free... Is subject to
> discussion.

it's rather obvious that the license in DFSG-unfree, but the exact
purpose of my inquery was to check whether the package would be
distributable in non-free.

in the meantime i was heaving contact with upstream, and here's what
they basically say:

since changing license (even if it is just changing the license name,
without altering the actual terms) requires all authors to accept, and
most project members can only commit little time to the project these
days, they have not tackled the problem so far.
also, they figure that a license "GPL+exceptions" is much easier for
their audience to *understand* (given that they are already familiar
with the GPL, they only have to parse and understand the additional
exceptions) than a new license (even if it is just changing the
license name, without altering the actual terms).
which all in all keeps their motivation small, to even start a
discussion on that topic (again; they've been through that before).

after that i suggested that
- - they could dual-license the work under "GPL+exceptions" (to spare
their happy audience) and under a "Linux Sampler License" (which would
be the same but under a different name)
- - i could contact the remaining authors myself to get their agreement
for this.
- - (but only if they are fine with that).

that was 1 week ago and i haven't received any further answer.
i'm under the impression that i will not receive any more answer on
this topic from their side.

which throws us back to the question whether software under that
license is distributable (in non-free) at or not.


fgmasr
IOhannes

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Re: inquery about "GPL with commercial exception"

[Francesco Poli]

On Thu, 8 Oct 2015 17:06:22 +0200 IOhannes m zmölnig (Debian/GNU) wrote:

[...]
> which throws us back to the question whether software under that
> license is distributable (in non-free) at or not.

Just to be clear, my own personal opinion is that
"GPLv2 + restrictions" is self-contradictory and thus possibly void:
I would not consider software released under such terms as safely
distributable.


-- 
 http://www.inventati.org/frx/
 There's not a second to spare! To the laboratory!
. Francesco Poli .
 GnuPG key fpr == CA01 1147 9CD2 EFDF FB82  3925 3E1C 27E1 1F69 BFFE


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Re: inquery about "GPL with commercial exception"

[Ben Finney]

Gunnar Wolf  writes:

> Francesco Poli dijo [Wed, Oct 07, 2015 at 11:50:53PM +0200]:
> > One cannot comply with all these conditions at the same time. The
> > "GPL + further restrictions" license is therefore
> > self-contradictory.
>
> Right. But a content creator (in this case, a software author) is free
> to choose whatever terms they see fit for their work. In this case, if
> what they come up with that best describes their intent is "something
> similar to the GPL, but adding a restriction to it to prevent
> appropriation in commercial settings", they are entitled to.

The copyright holder can claim that, and can still distribute the work
legally, because copyright law does not restrict them to comply with
those license terms.

Any recipient of the work, though, has no license in the work except
what the copyright holder grants. If the copyright holder's granted
terms are incoherent (“GPLv2 plus these restrictions” is not a coherent
license grant), then the terms are misleading because the recipient has
no valid license under copyright law.

> And yes, expressing it as "GPL + restrictions" is unfortunate

It's more than unfortunate, it is actively misleading (though whether
that is intentional or not is still unknown). It gives the strong
impression the recipient has some license to exercise some freedoms from
copyright restriction, when in fact they have none.

-- 
 \   “Come on, if your religion is so vulnerable that a little bit |
  `\   of disrespect is going to bring it down, it's not worth |
_o__)   believing in, frankly.” —Terry Gilliam, 2005-01-18 |
Ben Finney

Re: inquery about "GPL with commercial exception"

[Francesco Poli]

On Wed, 30 Sep 2015 09:45:26 +0200 IOhannes m zmölnig (Debian/GNU)
wrote:

> On 2015-09-30 02:18, Ben Finney wrote:
> > Yes, that is clearly what the GPL calls an “additional restriction”
> > on the recipient's exercise of their freedoms guaranteed by the
> > GPL.
> > 
> > GPLv2 §6:
> > 
> > Each time you redistribute the Program (or any work based on the 
> > Program), the recipient automatically receives a license from the 
> > original licensor to copy, distribute or modify the Program
> > subject to these terms and conditions. You may not impose any
> > further restrictions on the recipients' exercise of the rights
> > granted herein. You are not responsible for enforcing compliance by
> > third parties to this License.
> 
> hmm, frankly i don't see how this is very relevant here.
> the original licensor (the linuxsampler devs) grants a license to all
> recipients. this license includes the "restriction".
> the "YOU" in the license only refers to the recipients who would like
> to pass on the software to other recipients. they may not add any
> "additional" restriction to the license as given by the original licenso
> r.
> so if "we" (Debian) don't add further restrictions, that should be fine.

I personally think it is indeed relevant.

Let me try to explain.
The term "further restrictions" is meant "with respect to the
GPL terms", not "with respect to GPL terms + any terms added by the
copyright holder".
Hence releasing software under "GPL + further restrictions" creates a
self-contradictory license, where anyone willing to redistribute has to
comply with the following conditions:

 • redistribute under the GPL terms
 • do not impose any further restriction (with respect to the GPL)
 • do not drop the restrictions which are already present (copyright
   laws do not allow distributors to drop restrictions)

One cannot comply with all these conditions at the same time.
The "GPL + further restrictions" license is therefore
self-contradictory.

Please also see this old reply by RMS:
https://lists.debian.org/debian-legal/2006/05/msg00303.html


I hope this clarifies.

-- 
 http://www.inventati.org/frx/
 There's not a second to spare! To the laboratory!
. Francesco Poli .
 GnuPG key fpr == CA01 1147 9CD2 EFDF FB82  3925 3E1C 27E1 1F69 BFFE


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Re: inquery about "GPL with commercial exception"

[forum : : für : : umläute]

On 2015-09-30 04:38, Jeff Epler wrote:
> I was unaware of this detail of the GPLv3 license.
> 
> The first source file that I looked at in linuxsampler's svn trunk,
> src/linuxsampler.cpp, has the "any later version" clause enabled.

a quick check shows that of the 303 sourcefiles ("*.cpp" and "*.h") in
src/, 231 have a license boilerplate that enables the "any later
version" clause.

i haven't found a single source file (yet), that explicitely contains
the non-commercial clause, but another 40 files refer to the "same
license as LinuxSampler" resp. "see README"
(most other files are either trivial or contain only a single
"copyright" line without license grant).

README contains the non-commercial clause.
in fact, README is the *only* file that mentions the restriction in the
entire tarball.

fgmasdr
IOhannes

Re: inquery about "GPL with commercial exception"

[Debian/GNU]

-BEGIN PGP SIGNED MESSAGE-
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On 2015-09-30 02:18, Ben Finney wrote:
> Yes, that is clearly what the GPL calls an “additional restriction”
> on the recipient's exercise of their freedoms guaranteed by the
> GPL.
> 
> GPLv2 §6:
> 
> Each time you redistribute the Program (or any work based on the 
> Program), the recipient automatically receives a license from the 
> original licensor to copy, distribute or modify the Program
> subject to these terms and conditions. You may not impose any
> further restrictions on the recipients' exercise of the rights
> granted herein. You are not responsible for enforcing compliance by
> third parties to this License.

hmm, frankly i don't see how this is very relevant here.
the original licensor (the linuxsampler devs) grants a license to all
recipients. this license includes the "restriction".
the "YOU" in the license only refers to the recipients who would like
to pass on the software to other recipients. they may not add any
"additional" restriction to the license as given by the original licenso
r.
so if "we" (Debian) don't add further restrictions, that should be fine.

> 
>> The page also says that a mandatory dependency of LinuxSampler,
>> libgig, is licensed under GPL without prohibition.
> 
> If LinuxSampler is deemed (hypothetically in the future by a ruling
> in a copyright suit) to be a derived work of libgig, then
> distribution of LinuxSampler is subject to the GPL on libgig.

indeed. this makes the LinuxSampler undistributable.

i've asked upstream (last night, before you brought this to my
attention), whether they are *actually interested* in having
LinuxSampler distributed by 3rd parties.

> 
> In that case — which I believe is the case here — then
> distributing LinuxSampler with additional restrictions in the
> license terms is a violation of the license they have to distribute
> the work at all.
> 
>> In my opinion: - GPL with additional use prohibition is not
>> DFSG-compatible - GPL with additional use prohibition is not
>> GPL-compatible
> 
> As an interesting point, GPLv3 is even better for this: it has a
> clause (GPLv3 §7) that explicitly grants the recipient the freedom
> to ignore the offending additional restriction, and to strip that
> restriction from the terms when they redistribute the work.
> 
> So one possible way to improve this situation is to correspond with
> the copyright holders in each of the works on which LinuxSampler
> depends, and encourage them to release new versions under
> GPLv3-or-later.

people already asked to release LinuxSampler itself under the GPLv3,
which was declined upstream.


as i understand your proposal, we should try to persuade developers of
LinuxSampler's mandatory libraries to solely license new versions
under GPLv3; as soon as LinuxSampler would then have a mandatory
dependency on that *new* version of the library, we would have
brute-forced their license.
i think this is:
- - unfair
while  I would personally perfer LInuxSampler to be DFSG-compliant,
upstream prefers to keep thir software non-free. which is OK (for
certain values of "OK"); i don't think that forcing them into freedom
will do any good.
now any of their dependencies could just decide today to move on to
GPLv3+, which i think is OK (after all, it's the dependency's authors'
decisision). but specifically asking them to do so, just so we can
brute-force 3rd party licensing issues, doesn't sound especially
appealing.

- - unlikely to have any effect
LinuxSampler could just stick with the original version of their
dependency (e.g. not use any features solely available under GPLv3),
and nothing would be gained at all.
or replace that dependency by something else.
or just drop the entire project ("hooray, another license bastard
eliminated" anyone?)

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Re: inquery about "GPL with commercial exception"

[Ben Finney]

Jeff Epler  writes:

> For discussion, the text in question from the linuxsampler website reads:
>
>  [*] LinuxSampler is licensed under the GNU GPL with the exception that
>  USAGE of the source code, libraries and applications FOR COMMERCIAL
>  HARDWARE OR SOFTWARE PRODUCTS IS NOT ALLOWED without prior written
>  permission by the LinuxSampler authors. If you have questions on the
>  subject, that are not yet covered by the FAQ, please contact us. 
>
> I think this is more a *prohibition* (something permitted by the GPL,
> use for any purposes, is prohibited) than an *exception*.

Yes, that is clearly what the GPL calls an “additional restriction” on
the recipient's exercise of their freedoms guaranteed by the GPL.

GPLv2 §6:

Each time you redistribute the Program (or any work based on the
Program), the recipient automatically receives a license from the
original licensor to copy, distribute or modify the Program subject
to these terms and conditions. You may not impose any further
restrictions on the recipients' exercise of the rights granted
herein. You are not responsible for enforcing compliance by third
parties to this License.

> The page also says that a mandatory dependency of LinuxSampler, libgig,
> is licensed under GPL without prohibition.

If LinuxSampler is deemed (hypothetically in the future by a ruling in a
copyright suit) to be a derived work of libgig, then distribution of
LinuxSampler is subject to the GPL on libgig.

The same is true of any other GPL-licensed work from which LinuxSampler
is derived: if it is distributed, that distribution must conform to the
terms of the GPL.

In that case — which I believe is the case here — then distributing
LinuxSampler with additional restrictions in the license terms is a
violation of the license they have to distribute the work at all.

> In my opinion:
>  - GPL with additional use prohibition is not DFSG-compatible
>  - GPL with additional use prohibition is not GPL-compatible

As an interesting point, GPLv3 is even better for this: it has a clause
(GPLv3 §7) that explicitly grants the recipient the freedom to ignore
the offending additional restriction, and to strip that restriction from
the terms when they redistribute the work.

So one possible way to improve this situation is to correspond with the
copyright holders in each of the works on which LinuxSampler depends,
and encourage them to release new versions under GPLv3-or-later.

Then LinuxSampler's copyright holders would be faced with the choice to
have their imposition of additional restrictions neutered, or never gain
the benefits of upgrading the dependency.

-- 
 \   “Come on Milhouse, there’s no such thing as a soul! It’s just |
  `\  something they made up to scare kids, like the Boogie Man or |
_o__)  Michael Jackson.” —Bart, _The Simpsons_ |
Ben Finney

Re: inquery about "GPL with commercial exception"

[Jeff Epler]

On Wed, Sep 30, 2015 at 10:18:41AM +1000, Ben Finney wrote:
> As an interesting point, GPLv3 is even better for this: it has a clause
> (GPLv3 §7) that explicitly grants the recipient the freedom to ignore
> the offending additional restriction, and to strip that restriction from
> the terms when they redistribute the work.
> 
> So one possible way to improve this situation is to correspond with the
> copyright holders in each of the works on which LinuxSampler depends,
> and encourage them to release new versions under GPLv3-or-later.
> 
> Then LinuxSampler's copyright holders would be faced with the choice to
> have their imposition of additional restrictions neutered, or never gain
> the benefits of upgrading the dependency.

I was unaware of this detail of the GPLv3 license.

The first source file that I looked at in linuxsampler's svn trunk,
src/linuxsampler.cpp, has the "any later version" clause enabled.

Jeff

Re: inquery about "GPL with commercial exception"

[Jeff Epler]

On Tue, Sep 29, 2015 at 05:14:11PM +0200, IOhannes m zmölnig (Debian/GNU) wrote:
> i'm currently thinking about packaging "linuxsampler", which has a
> somewhat abominable license, which they call "GPL with commercial
> exception" [1].
> 
> [1] https://www.linuxsampler.org/downloads.html#exception

For discussion, the text in question from the linuxsampler website reads:

 [*] LinuxSampler is licensed under the GNU GPL with the exception that
 USAGE of the source code, libraries and applications FOR COMMERCIAL
 HARDWARE OR SOFTWARE PRODUCTS IS NOT ALLOWED without prior written
 permission by the LinuxSampler authors. If you have questions on the
 subject, that are not yet covered by the FAQ, please contact us. 

I think this is more a *prohibition* (something permitted by the GPL,
use for any purposes, is prohibited) than an *exception*.

The page also says that a mandatory dependency of LinuxSampler, libgig,
is licensed under GPL without prohibition.

In my opinion:
 - GPL with additional use prohibition is not DFSG-compatible
 - GPL with additional use prohibition is not GPL-compatible

As a consequence of the second item, I believe LinuxSampler is not
distributable at all, since it works only by linking GPL-compatible and
GPL-incompatible code together into a single work, so I don't believe
that LinuxSampler can be distributed even in the non-free archive.

Jeff

Re: inquery about "GPL with commercial exception"

[Debian/GNU]

On 09/29/2015 06:58 PM, Jeff Epler wrote:
> As a consequence of the second item, I believe LinuxSampler is not
> distributable at all

alessio brought to my attention that the license of LinuxSampler was
already discussed on debian-legal 10 years ago, and it seems that they
came to a similar conclusion:
  https://lists.debian.org/debian-legal/2005/09/msg00331.html


mgfsadr
IOhannes



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Re: inquery about "GPL with commercial exception"

[Debian/GNU]

hi,

thanks for the quick reply.

On 09/29/2015 06:58 PM, Jeff Epler wrote:
> On Tue, Sep 29, 2015 at 05:14:11PM +0200, IOhannes m zmölnig (Debian/GNU) 
> wrote:
>> i'm currently thinking about packaging "linuxsampler", which has a
>> somewhat abominable license, which they call "GPL with commercial
>> exception" [1].
>>
>> [1] https://www.linuxsampler.org/downloads.html#exception
> 
> For discussion, the text in question from the linuxsampler website reads:
> 
>  [*] LinuxSampler is licensed under the GNU GPL with the exception that
>  USAGE of the source code, libraries and applications FOR COMMERCIAL
>  HARDWARE OR SOFTWARE PRODUCTS IS NOT ALLOWED without prior written
>  permission by the LinuxSampler authors. If you have questions on the
>  subject, that are not yet covered by the FAQ, please contact us. 
> 
> I think this is more a *prohibition* (something permitted by the GPL,
> use for any purposes, is prohibited) than an *exception*.
> 
> The page also says that a mandatory dependency of LinuxSampler, libgig,
> is licensed under GPL without prohibition.
> 
> In my opinion:
>  - GPL with additional use prohibition is not DFSG-compatible
>  - GPL with additional use prohibition is not GPL-compatible
> 
> As a consequence of the second item, I believe LinuxSampler is not
> distributable at all, since it works only by linking GPL-compatible and
> GPL-incompatible code together into a single work, so I don't believe
> that LinuxSampler can be distributed even in the non-free archive.

hmm, the upstream authors doubt that, arguing that they as the authors
of libgig are allowed to do so.
   https://www.linuxsampler.org/faq.html#ls_breaking_libgig_license
but i guess there argument only holds, as long as *they* distribute the
combined binaries (and not a 3rd party like Debian).

anyhow, if the use of libgig is the only problem, then i think it can be
solved rather easily (e.g. the upstream authors adding an explicit
exception to the license of libgig, that allows its use in linuxsampler)

(btw, i also think that your wording is a bit unfortunate: there is
nothing in the world that a priori prohibits linking *GPL-compatible*
and *GPL-incompatible* code; LGPL and BSD-3-clause are all *compatible*
and allow linking with proprietary code)



gmrdsa
IOhannes

PS: thanks for keeping me (and pkg-multimedia) in the loop, as I'm not
subscibed to debian-legal.



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