Software licenses as conversation

An article published yesterday, I could license you to use this software, but then I’d have to kill you calls out some odd outliers in the open-source licensing space – odder, actually, than any I ever reviewed when I was the founding president of the Open Source Initiative. I wonder, though, if the author actually gets all the levels of the joke.

The author notes that the top 10 licenses cover 93% of all projects and the top 20 almost 97%; the oddities lie in the remaining 3%. If one were to graph the frequencies, I’m guessing the distribution would roughly obey the generalized Zipf’s Law. He’s particularly amused by Poul-Henning Kamp’s Beerware License, the “Do What The Fuck You Want To Public License “, and the “Death and Repudiation License”; read his article for the terms of these.

The author writes as though he finds the motivation for these licenses difficult to understand. I don’t, though; they make perfect sense if you understand open source licenses not as legal documents but as signaling devices, or as rhetorical rendezvous points for particular social contracts, or even as tribal totems.

This is probably the sanest way to view them, anyway. Years of reviewing open-source licenses and learning about the applicable law has left me with the evaluation that (legally speaking) they’re mostly air and voodoo, reflecting a touching but unjustified faith that judges and courts will execute them as though they were programs in legalese. In retrospect, I think the enormous efforts put in the half-decade around 2000 into producing licenses “better drafted” than the classics (GPL/MIT/BSD) was pretty much entirely a waste of time – and I say that as a key player in those efforts. The brutal truth is that if a court understands and agrees with a simple license’s intention, the court will find doctrinal reasons to enforce it – and if it doesn’t, not all the complex language and careful drafting in the world will prevent the court from doing what it damn well pleases.

Open source licenses make more sense as tribal totems, or as statements of the licensor’s position in an ongoing conversation about how the open-source community defines itself. One of the features of conversation is that people comment on, make jokes about, and emit satires of other peoples’ speech.

Thus, for example: I haven’t checked with Henning-Kemp, but when I read his Beerware License I see a man saying “Whoa! Step back, we are all taking ourselves waaay too seriously here.” OK, interesting behavior tends to be overdetermined and I have no reason to doubt that the guy likes beer and enjoys the collection of autographed exotic beer bottles a commenter reports he has accumulated. Still, the effect is to poke gentle fun at the cult-like earnestness around a lot of licensing debates. I don’t think that’s an accident. And I approve.

It’s even clearer that the Do What the Fuck You Want To Public License is a satire. The author is one of those who thinks the Free Software Foundation has traduced the word “free” by hedging the GNU General Public License about with restrictions and boobytraps in the name of “freedom” – and he’s got an issue or two with BSD as well. He is poking fun at both camps, not gently at all. His page about the WTFPL is funny-because-it’s-true hilarious, and I admit that I feel a sneaking temptation to start using it myself.

The Death and Repudiation License isn’t a satire, exactly. It appears on some software dual-licensed with BSD, so nobody ever actually has to apply it. It appears to be a screw-you gesture aimed at people who wanted the software dual-licensed, probably with GPL. The software author’s reply was “Yeah, I got yer dual license right here.”

The feature all these licenses share is that, though they’re drafted as legal documents and may have the force of same, they’re not actually about the legalities at all. It might be interesting to audit the other licenses with frequencies down in the statistical noise and see what percentage are like this; I’d bet there are lots of others.

36 thoughts on “Software licenses as conversation

  1. I use a CC license, but I always refer to it as the Woody Guthrie General Public License: “Anyone found using this content without our permission will be considered mighty good friends of ours.”

  2. I can confirm that the genesis of the Beer-ware license was the interminable license-shouting-matches and a number of source files where the license were more than thrice the length of the rather trivial code.

    So in that sense, yes, it was part of the conversation at the time and probably a minor ornamental feature on the totem pole as well.

    But it is also serious: I want people to use the code I write and I don’t want them to have to spend fortunes on lawyers to find out if they can.

    Predictably, a couple of very big companies did that anyway, and some truly hilarious phone-conversations ensued along the lines of: “Does this mean that all of $BIGCORPs customers must send you a beer each ?”

    I’m also informed that another $BIGCORP has a bottle of Anchor-Steam waiting for me, along with a copy of the P/O that bought it, which apparantly documents that it was the company, and not a random employee that fulfilled the (not-even-close-to-an-) obligation. Why the didn’t ship the bottle to me, I have no idea, it would be 10 years old by now, if it hasn’t exploded.

    I should have added a clause about spelling my name correctly though :-)

    Poul-Henning Kamp
    phk@FreeBSD.org

  3. When I first read the Do What the Fuck You Want To Public License a few months ago, besides the obvious point about the GPL being anti-freedom (or more precisely, only about specific freedoms), it also struck me as a work-around to the legal limbo that the Public Domain has become since the late 1970s copyright changes. You might find Peter Saint-Andre’s take on that interesting, in the post December 30, 2006
    PD HowTo most of the way down the page https://stpeter.im/index.php/category/publicdomain/ .

  4. >I should have added a clause about spelling my name correctly though :-)

    Yeah, he didn’t get the expansion of “OSI” right either.

  5. Hypothetically, I just don’t bother with copyleft and and release everything into the public domain. If you are the one attempting to use state power to enforce a dubious claim to other people’s property, it doesn’t really matter to me if you are using work that I contributed to or not; I consider it equally morally vacuous.

  6. Well, Eric, I always wondered why you wasted so much time with the OSI Licensing thing. Licenses are only as good as the lawyers you use to enforce them, and courts are so damned fickle it all seemed like a waste of time to me. When I was coding, I would do a “poor man’s copyright” just to make sure that somebody couldn’t steal my work and then sue me for infringement, but that was about it because I knew I’d never have the money (or the will) to go up against MegaCorp or pretty much anybody else.

    Besides, it always seemed like such a waste of time when there were so damned many interesting problems out there to work on (and it still does, and there still are :^).

    It also fits nicely with my legal philosophy: When you get a lawyer involved, the only one who wins is the lawyer.

  7. >Well, Eric, I always wondered why you wasted so much time with the OSI Licensing thing.

    Oh, I don’t think establishing a gold standard for open-source licensing was a waste at all. The Open Source Definition is useful on many levels; it unifies the community, it provides a basis for reasoning by lawyers and courts, and it channels license experimentation into useful paths. The OSI certification process was and is a win.

    It was the attempt to “improve” the classic open-source licenses we walked in with that didn’t work. We knew even at the time that a lot of it was big-corporate vanity talking, but it was worth cooperating with that dance in order to co-opt legal departments that might otherwise have been mulishly resistant.

  8. The terms of that one read much like the title, though I am told by a lawyer that profanity aside, the author’s intent is rather unambiguous.

    LOL. The intent of the WTFPL is pretty unambiguous, although it is practically the same thing as the ISC license, which is about as concise as it gets for an OSI-approved license. If the open source community could have only one non-copyleft license, I’d want it to be that one.

  9. Establishing a baseline for what is open source and what is not is hardly a wasteful activity. It’s a defense against abuse of the term, such as that committed by Al Gore during the initial stages of his 2000 presidential campaign.

  10. >Why they didn’t ship the bottle to me, I have no idea, it would be 10 years old by now, if it hasn’t exploded.

    The license clearly states “buy me a beer”, there is no mention of or requirement regarding actually sending it to you.

  11. esr> I wonder, though, if the author actually gets all the levels of the joke.

    Heck…he didn’t even see that the Iggy Wanna license is a play on “iguana”.

  12. > The Open Source Definition is useful on many levels; it unifies the community, it provides a basis for reasoning by lawyers and courts, and it channels license experimentation into useful paths.

    The big problem with the OSD is that it then forces OSI to accept any license that meets the definition, and the definition was flawed. I’m sure Larry Rosen explained this to you and the rest of the OSI board. The result: “open source” licenses (accepted by OSI) from mouth breathers such as CA and Microsoft. http://www.opensource.org/node/207

  13. This might be a stupid question…. but here goes.

    Given the fact that you are talking about open-source or free software, why is there a need to have licenses at all?

  14. The WTFPL was fucking rejected by the fucking OSI because some people still fucking think that “fuck” is fucking objectionable, the fuckwits. It was never about the fucking license, but instead about the fucking name.

    There is no point in offending people who simply don’t like the words you use, and who refuse to listen to them. No value to be gained from it. Grow up and use different words, like a “do What you want to Public License”. On the other hand, today being Draw Mohammed Day, I see full reason to ridicule and satirize people who think you should be killed for drawing Mohammed as if he were a dog.

    Lapin: this is just one example of a compliant license which we didn’t accept. Many licenses never see the light of day because we talk their submittors out of using them. So while you might be right, in a different universe, you’re wrong in this one. In particular, the Microsoft license is actually pretty good. It’s one page long, and its reciprocal vs free versions differ by just one sentence.

  15. The big problem with the OSD is that it then forces OSI to accept any license that meets the definition, and the definition was flawed. I’m sure Larry Rosen explained this to you and the rest of the OSI board. The result: “open source” licenses (accepted by OSI) from mouth breathers such as CA and Microsoft. http://www.opensource.org/node/207

    Any set of rules is going to have some corner cases that some people will perceive as flaws. What Tivo did was within the rules of GPL v2 (and even within the spirit, as some interpreted it), but not within the spirit of that license as far as the actual author of the license was concerned.

    The problem is that law is somewhat like software. By adding more more code to fix bugs, you often add more bugs.

    One solution, in both law and software, is to seriously consider each reported issue to determine if it is really a bug (and what severity) or if it is merely an enhancement request, and then to carefully consider all the costs associated with adding the enhancements and fixing the minor bugs.

    I have nothing to do with OSI or the OSD, and I have no love of Microsoft, but I have to say that legally, morally, and ethically, approving the Microsoft license was the right thing to do. Further, I think it would be unwise for the OSI to modify the definition, although I have no problem with the sorts of publicized steps they are taking to try to reduce license proliferation.

    But frankly, the ISC, Beerware, and WTFPL are great examples of licenses which probably have very few bugs, simply because there are few places for them to hide.

    One potential “bug” in the GPL is that if someone downloads an Ubuntu ISO, burns a few copies onto CD, and hands them out — if he doesn’t give out a written offer for source, he is probably immediately in violation of the license. And yet, he probably doesn’t even know that. It was advertised as free, and on the Ubuntu download page it says “Don’t forget that you can create more copies and pass the CD to as many people as you like.” Sure, there is verbiage on other pages about how the whole process works, but neither the front page nor the download page mention any particular obligations.

    I don’t think this particular “bug” is of any serious consequence, because nobody is going to sue over this kind of distribution, and fair use and laches would almost certainly protect the person making the copies in any case. But it shows the relative complexity of the GPL — because of what it’s trying to accomplish, it would be very hard to fix this bug without allowing some other behavior that would be viewed analogously to Tivo-ization, so this bug is probably a definite “wont-fix.”

    Personally, I think not discussing the obligations up front is a great strategy for FOSS, because it would really slow the uptake to carefully explain that although it’s “free” you can’t make copies for your friends without making the offer of source code to them, but I have already been flamed on a newsgroup because I pointed out that IMO Ubuntu is encouraging license violations by the way they have laid out their pages (discussing benefits but not obligations) and that the FSF has to be aware of it, and that turning a blind eye to this behavior because it increases marketshare is not unlike when Microsoft turns a blind eye to people who violate its licenses in places where there is a lot of piracy.

  16. Darren, the reason to have a license is to disclaim warranty, and to disclaim copyright. Under the Berne Convention (to which about half of the countries have signed), every creative work is copyrighted. Without a license, people would not be able to redistribute a work. In the USA, many states have the concept of a warranty of merchantability, which means that if you’re selling something (a zero price is still selling), it has to do what you say it’s going to do. That’s why a lot of warranties will say “In spite of what our advertising says, this product is a piece of crap. It won’t do anything. If you can get it to do anything, hooray for you. If you can’t get it to do anything, tough noogies.”

  17. One potential “bug” in the GPL is that if someone downloads an Ubuntu ISO, burns a few copies onto CD, and hands them out —

    That’s a bad example. Ubuntu DVDs, for example, contain the entire Main and Restricted repos, which, I think, means that it includes the source distros. In addition, any Ubuntu install connected to the Internet can easily get the entire source (including Debian/Ubuntu patches) with a simple ‘apt-get’.

  18. That’s a bad example.

    No it’s not. It’s a good example, and your unconsidered response to my scenario is also a good example (of a fairly typical knee-jerk reaction when I bring this up).

    Ubuntu DVDs, for example, contain the entire Main and Restricted repos, which, I think, means that it includes the source distros.

    From ubuntu.com, the big button says “Download Ubuntu”. That takes you to a page where the big button says “Begin Download” and gets you a CD ISO. Now there is a DVD ISO available in the fine print on the lower right-hand side of the download option, in a light red font, which takes you to a page which says:

    Don’t be confused, even though DVDs can hold far more data than the typical Ubuntu CD, the main benefit of the DVD downloads is to get access to all of the available language packs. Most people will be fine with the standard CD installer. There are fewer download locations for the DVD images and this list is updated less frequently than for the CD images.

    I don’t see them pushing source code access real hard here, unless “language packs” is a euphemism I wasn’t previously aware of.

    In addition, any Ubuntu install connected to the Internet can easily get the entire source (including Debian/Ubuntu patches) with a simple ‘apt-get’.

    I didn’t say that Ubuntu was violating the GPL, because they are not. However, the person making the download and copying CDs and handing them out to his friends without the written offer of source is (hint: he might give a CD to someone without network access), and Canonical is fine with that and the FSF is apparently fine with that as well. Despite the fact that RMS is a shrinking violet, not prone to speaking out, he does hold firm to his convictions, and I like to believe that he would work up the courage to publicly confront Ubuntu if he felt they weren’t doing things right.

  19. I was getting ready to revive the now-appears-to-be-defunct RScheme project with some changes of my own. I wanted to be sure that I could hack it and make a complete Git repo available without any legal worries. I was delighted to find this in RScheme’s copyright:

    RScheme is free software. It is not public domain — I retain
    copyright to all source code — but it is free, and you have license
    to use it as you desire. This includes utilizing it as a complete
    system, adapting it to your purposes, building new applications using
    and incorporating it, etc. This free license also includes the
    ability to redistribute RScheme unmodified, or to redistribute derived
    works. These things and more you can do free of charge.

    I thought to myself, “Cool — not just GPL compatible but WTFPL compatible!!”

  20. One potential “bug” in the GPL is that if someone downloads an Ubuntu ISO, burns a few copies onto CD, and hands them out — if he doesn’t give out a written offer for source, he is probably immediately in violation of the license.

    Isn’t that written offer for source on the CD itself?

  21. @Patrick Maupin: Well, since you think my response to be “unconsidered”, I’ll give you my full answer.

    However, the person making the download and copying CDs and handing them out to his friends without the written offer of source is (hint: he might give a CD to someone without network access), and Canonical is fine with that and the FSF is apparently fine with that as well.

    I don’t think your case is a violation of the GPL at all, at least not V2, and probably not V3 either. I won’t address V3 here, because the current license for the compilation copyright for the ubuntu-foo packages is GPLv2-or-later. Ultimately, it boils down to some definitions in GPLv2 section 3, subsections b and c, which state:

    b) Accompany it with a written offer, valid for at least three
    years, to give any third party, for a charge no more than your
    cost of physically performing source distribution, a complete
    machine-readable copy of the corresponding source code, to be
    distributed under the terms of Sections 1 and 2 above on a medium
    customarily used for software interchange; or,

    c) Accompany it with the information you received as to the offer
    to distribute corresponding source code. (This alternative is
    allowed only for noncommercial distribution and only if you
    received the program in object code or executable form with such
    an offer, in accord with Subsection b above.)

    Your scenario matches with 3(c), since someone copying an Ubuntu CD for his friends is clearly performing a non-commercial act. In your scenario, then, you would have to be saying that Canonical itself is violating the GPL, because you can order the CDs for shipment via snail mail, for free even.

    See, it depends on what constitutes “a written offer.” If having the source repositories listed in /etc/apt/sources.list doesn’t constitute a written offer of source (and I think it does), and there is no other written offer anywhere in the packages on the CD (and I think there isn’t, then your argument is essentially accusing Canonical of copyright infringement.

    In your scenario, the person giving an Ubuntu CD to his friends is simply giving out the same information he had received as to Canonical’s written offer for the source code — the source repository information already contained on the CD itself.

    So, to sum it all up: you can always get the source via a simple ‘apt-get’ command. The Internet constitutes a “medium customarily used for software exchange,” and someone’s access, or lack thereof, to the Internet isn’t the guy-copying-the-CDs’ problem.

  22. I don’t think your case is a violation of the GPL at all, at least not V2, and probably not V3 either.

    Perhaps not. But nobody has yet shown me why not, and you’re not even close to getting there.

    I won’t address V3 here, because the current license for the compilation copyright for the ubuntu-foo packages is GPLv2-or-later.

    So I can override the copyright on a package just by putting it on a CD with some other packages? Cool! The mind boggles at the possibilities! However, just in case your magical interpretation of copyright law fails, and those GPLv3-licensed packages on the CD actually have, you know, enforceable licenses, I will address GPLv3. Under that license, the download clearly happens under 6d, and the redistribution clearly happens under 6b. The “copy of the written offer” in 6c doesn’t apply, because the download didn’t happen under 6b.

    Your scenario matches with 3(c), since someone copying an Ubuntu CD for his friends is clearly performing a non-commercial act.

    You’re absolutely right (for those packages on the CD licensed under GPL v2) except that a) there was no written offer from Ubuntu accompanying the download, and b) my hypothetical new enthusiastic user didn’t copy it anyway. In fact he doesn’t know or care, or want to know or care, about how the sausage is made.

    In your scenario, then, you would have to be saying that Canonical itself is violating the GPL, because you can order the CDs for shipment via snail mail, for free even.

    I’ve never ordered a CD from Ubuntu, but my starting assumption would be that they are smart and ethical people and include a written offer with the CD. In other words, it is much more charitable than your starting assumption about me seems to be.

    See, it depends on what constitutes “a written offer.”

    Well, for starters, I think it has to be “written” and be “an offer” and probably relatively conspicuous. I see neither inside my AMD 64 9.10 CD image, certainly not at the top directory.

    If having the source repositories listed in /etc/apt/sources.list doesn’t constitute a written offer of source (and I think it does),

    OK, so my hypothetical newbie Linux user’s even newer convert who just received a CD and replaced Windows is supposed to know that there is some directory called /etc/apt (what’s a directory? Oh, a folder. Why are the slashes backwards?) that has a file (OK, I kind of know what that is) called sources.list (How do I open this? Where’s word?) and that’s supposed to be a written offer of source code (what’s source code and why do I want it)?

    and there is no other written offer anywhere in the packages on the CD (and I think there isn’t, then your argument is essentially accusing Canonical of copyright infringement.

    No. You have accused me at least twice of mendacity, but I’ve never accused Canonical of copyright infringement.
    No written offer is required if access to source is offered “from the same place” as the object, under either GPLv2 or v3, so I think Canonical is in the clear, because they let you download the source if you want.

    In your scenario, the person giving an Ubuntu CD to his friends is simply giving out the same information he had received as to Canonical’s written offer for the source code — the source repository information already contained on the CD itself.

    Claiming a list of URLs in a file is a legal written offer for source code looks even sillier when you lay it out that plainly.

    Anyway, the FSF’s FAQ is pretty clear about the right answer. But the FSF isn’t going to bother you with all those gory techno-legal details unless you ask (which was pretty much the main point of my thesis).

    So, to sum it all up: you can always get the source via a simple ‘apt-get’ command. The Internet constitutes a “medium customarily used for software exchange,” and someone’s access, or lack thereof, to the Internet isn’t the guy-copying-the-CDs’ problem.

    For those optional packages like the kernel which are GPL v2-only, whether the internet is a valid distribution mechanism is completely up to the recipient to decide.

    In my initial post, I explicitly mentioned that I don’t see any sort of practical problems with the current state of affairs, and also alluded to the fact that the very act of attempting to accurately describe the current state of affairs will incite some people. I don’t claim to have a lock on the truth, but you obviously strongly disagree with my assessment of the situation, and apparently have zero evidence — you still haven’t posted anything that would remotely indicate that the guy who downloads Ubuntu and burns 10 CDs isn’t technically in violation of the GPL as soon as he starts handing them out without a written offer — so thank you for validating this portion of my thesis.

  23. It’s amazing how the above discussion on problems with the GPL, so aptly demonstrates the problems with the GPL. If there were commonly lawsuits over these licenses, the case law would be mounting up.

  24. >It’s amazing how the above discussion on problems with the GPL, so aptly demonstrates the problems with the GPL.

    I agree. The GPL is a complex, headache-inducing solution to a non-problem.

  25. Just noticed a link at slashdot to PETA’s new software license.

    At least it should be pretty easy for the OSI to reject without too much debate; it’s sole reason to exist is to discriminate against certain fields of endeavor.

    ESR says: I’ve left a comment. We’ll see if it passes moderation.

  26. So I can override the copyright on a package just by putting it on a CD with some other packages? Cool! The mind boggles at the possibilities! However, just in case your magical interpretation of copyright law fails, and those GPLv3-licensed packages on the CD actually have, you know, enforceable licenses, I will address GPLv3. Under that license, the download clearly happens under 6d, and the redistribution clearly happens under 6b. The “copy of the written offer” in 6c doesn’t apply, because the download didn’t happen under 6b.

    Okay, fine, if you want to open that can of worms, so be it, but then are you being fair to the various other minority licenses contained on an Ubuntu CD? You’ve got everything from the Python License to the Zope License to the Artistic License…. do you really want to expand this conversation that far? We could write volumes.

    You’re right that the download happens under 6d., and that 6c doesn’t apply to the casual CD copier, but I’m still not convinced that System | Administration | Software Sources | [X] Source Code doesn’t constitute a written offer. The license doesn’t say “written on a piece of paper,” nor does it dictate what form the offer must be in. As far as the FSF, they can take whatever legal stance they want, but their legal opinion is irrelevant. Whether the guy copying 10 CDs is comitting a GPL violation is a matter for the courts to decide, not FSF’s lawyers.

    I’ve never ordered a CD from Ubuntu, but my starting assumption would be that they are smart and ethical people and include a written offer with the CD. In other words, it is much more charitable than your starting assumption about me seems to be.

    I have. It comes on a color-printed, pressed CD in a nice, pretty shiny 4-color process printed glossy paperboard CD jacket that has the Ubuntu logo on it and nothing else. The CD includes exactly what’s on the ISO you can download, and nothing more. There is no written offer for source code accompanying the CD, at least there wasn’t for 6.06 LTS, which was the last time I ordered one. It’s possible that Canonical has since changed what’s included in their CD packages, but you’re welcome to order a 5-pack from them for about 8 bucks to find out. (They used to be completely free, but I guess they’ve got to cover costs now. Apparently you can still request a free CD, but they might turn you down.)

    No. You have accused me at least twice of mendacity, but I’ve never accused Canonical of copyright infringement.
    No written offer is required if access to source is offered “from the same place” as the object, under either GPLv2 or v3, so I think Canonical is in the clear, because they let you download the source if you want.

    Where, exactly, did I accuse you of falsehood? I haven’t even accused you of being confused; perhaps I implicitly accused you of being misinformed, but that’s another story. Other than that, you’re right about the download, but I don’t think you’re correct about the source code being available from “the same place,” in the case of buying CDs from Canonical, since this is exactly the same case as the casual CD copier, especially considering Canonical’s store doesn’t sell the DVDs and they can only be ordered from Amazon.

  27. At least it should be pretty easy for the OSI to reject without too much debate; it’s sole reason to exist is to discriminate against certain fields of endeavor.

    They already said so:

    As great as we think this license is, it has a number of limitations and drawbacks:

    * It’s incompatible with the Open Source Initiatives (OSI) definition of open-source software, since it does not comply with their 6th condition “No Discrimination Against Fields of Endeavor”.
    * It is not considered “free software” according to the Free Software Foundation (FSF), since it does not comply with their requirement “The freedom to run the program, for any purpose (freedom 0)”.
    * It adds to the problematic proliferation of software licenses in the open-source community.
    * It is not compatible with any version of GPL. This is a major drawback, since it prevents the combination of HPL and GPL licensed software. Read a good argument for why software should comply with GPL in the article “Make Your Open Source Software GPL-Compatible. Or Else.”.

  28. At least it should be pretty easy for the OSI to reject without too much debate; it’s sole reason to exist is to discriminate against certain fields of endeavor.

    The author already includes a note acknowledging that it doesn’t qualify as Open Source for this reason.

  29. Okay, fine, if you want to open that can of worms, so be it, but then are you being fair to the various other minority licenses contained on an Ubuntu CD? You’ve got everything from the Python License to the Zope License to the Artistic License…. do you really want to expand this conversation that far? We could write volumes.

    Do any of those licenses (besides the GPL variants) require providing access to source as a condition of distribution of object?

    You’re right that the download happens under 6d., and that 6c doesn’t apply to the casual CD copier, but I’m still not convinced that System | Administration | Software Sources | [X] Source Code doesn’t constitute a written offer.

    Maybe it does. But is Joe Bloggs allowed to piggy-back on Ubuntu’s generosity? Mepis wasn’t, and even though Joe is “non-commercial” that really doesn’t help him out too much. The fact is that Canonical’s offer is from Canonical, not from Joe, and Joe might be required to provide his own offer. A closer reading of GPL v2 indicates that Joe might suffer the same fate there as under GPL v3: Ubuntu distributed under 3a; Joe distributed under 3b, so 3c is unavailing. GPL v2 is even worse in one respect; if Joe gives out a physical CD with binaries, he might be expected to give physical CDs with source.

    The license doesn’t say “written on a piece of paper,” nor does it dictate what form the offer must be in. As far as the FSF, they can take whatever legal stance they want, but their legal opinion is irrelevant. Whether the guy copying 10 CDs is comitting a GPL violation is a matter for the courts to decide, not FSF’s lawyers.

    This will never get before a judge (in this context) because, as I said in my first post, nobody’s going to sue. Even if it gets before a judge in this context, fair use and laches will keep the judge from even reaching the license text. (If it really gets before a judge, it will be in the context of some Cisco-type violation, where the defendant’s lawyer is being overly clever and trying to use laches to get out of their obligation to distribute sources that they modified.)

    [CD from Ubuntu] comes on a color-printed, pressed CD in a nice, pretty shiny 4-color process printed glossy paperboard CD jacket that has the Ubuntu logo on it and nothing else. The CD includes exactly what’s on the ISO you can download, and nothing more. There is no written offer for source code accompanying the CD, at least there wasn’t for 6.06 LTS, which was the last time I ordered one. It’s possible that Canonical has since changed what’s included in their CD packages, but you’re welcome to order a 5-pack from them for about 8 bucks to find out. (They used to be completely free, but I guess they’ve got to cover costs now. Apparently you can still request a free CD, but they might turn you down.)

    Well, since Canonical quite happily gives out source, nobody’s going to sue them either. It may be that the menu options constitute a valid written offer, or it may be that nobody cares. In either case, the actual wording of the GPL strongly suggests that after downloading and burning and distributing a CD, Joe is not protected by Canonical’s offer, but of course, nobody cares about that either.

    Where, exactly, did I accuse you of falsehood?

    You said my argument (which really had nothing to do with Canonical shipping a CD) was tantamount to claiming they were violating copyright (twice). I read it before I had my coffee, and reacted perhaps inappropriately. Sorry.

    I haven’t even accused you of being confused; perhaps I implicitly accused you of being misinformed, but that’s another story. Other than that, you’re right about the download, but I don’t think you’re correct about the source code being available from “the same place,” in the case of buying CDs from Canonical, since this is exactly the same case as the casual CD copier, especially considering Canonical’s store doesn’t sell the DVDs and they can only be ordered from Amazon.

    My sole argument was about download->burn->distribute, where the original source is in fact in “the same place” as the original binaries. For physical CDs, the rules are clearly different. Certainly Canonical needs to make sure these are available for a nominal fee; but I doubt anything in the license prohibits them from using third parties for fulfillment.

    My primary assertion is still, as I wrote in my original post “if someone downloads an Ubuntu ISO, burns a few copies onto CD, and hands them out — if he doesn’t give out a written offer for source, he is probably immediately in violation of the (GPL) license.” Because of the way section 3 of v2 and section 6 of v3 are worded, I still believe this to be true. (Not only that, but as I also wrote in my original post, “fixing” this would probably be difficult — it might lead to free-riding behavior the FSF would find objectionable.)

    One of my secondary assertions is that someone will immediately disagree with my primary assertion, but that, in so doing, will probably not be able to provide a coherent, comprehensive argument which disproves my primary assertion.

    As soon as someone comes up with such a coherent, comprehensive argument, I will quit making my primary assertion :-)

  30. @The Monster:
    @Daniel Franke:

    Sorry. I didn’t actually read the license before I posted — it was obvious from the blog post announcing the license that it would violate “field of use,” but you are absolutely right — upon reading the license itself and the text rationale, it is obvious that they are not trying to pull the wool over anybody’s eyes about things like license compatibility.

  31. @Patrick Maupin:

    Think about this: if nothing in the license prohibits Canonical from using third parties for fulfillment of source code, then what, exactly, in the license prevents your Joe C.D. Burner from using a third party (Canonical) for fulfillment of source code?

    Remember what ESR said in a previous post: the courts do not enforce software licenses as if they were source code written in legalese. if you’re willing to concede that System | Administration | Software Sources | [X] Source Code is a valid written offer of source code for Canonical, then why not for Joe C.D. Burner?

  32. @The Monster:
    @Daniel Franke:

    Sorry. I didn’t actually read the license before I posted — it was obvious from the blog post announcing the license that it would violate “field of use,” but you are absolutely right — upon reading the license itself and the text rationale, it is obvious that they are not trying to pull the wool over anybody’s eyes about things like license compatibility.

  33. Think about this: if nothing in the license prohibits Canonical from using third parties for fulfillment of source code, then what, exactly, in the license prevents your Joe C.D. Burner from using a third party (Canonical) for fulfillment of source code?

    First you strenuously argued that internet distribution of source (which Canonical does themselves) was sufficient in all cases. Now you’re worried about people who got CDs from Canonical (who of course can download the source from them), which is a complete diversion from my example of Joe downloading an ISO from Canonical. I don’t know or particularly care about Canonical’s business model, but it would not at all surprise me to find that they have an actual contracts. For example, right below “Buy Ubuntu and Kubuntu on DVD from Amazon” on Ubuntu’s web page is the section “Become an authorised CD distributor”. But to be clear, my analysis of the interaction of Joe’s behavior and the GPL is not really about Ubuntu. I have fully described Joe’s behavior (and I’m pretty confident there are a lot of Joes out there) but I am not close enough to Ubuntu to really know anything about their behavior. It’s a complete red herring, because my hypothetical Joe doesn’t know anything about software or software distribution and certainly doesn’t have a contract with Canonical.

    Remember what ESR said in a previous post: the courts do not enforce software licenses as if they were source code written in legalese.

    First of all, I have said multiple times, in no uncertain terms, that it is my belief that nobody is going to be in trouble over this. Was that clear enough? But second, if you really think that a judge would find those particular license clauses (v2 s3 and v3 s6) either unreadable or unconscionable, I would beg to differ — they are written clearly enough, and (unlike some other GPL clauses) do not at all overreach. It’s a very simple “if you want to distribute this, be prepared to distribute that as well.” A completely fair trade, and completely obvious to anyone who isn’t reading the license with an eye towards shirking its plain English meaning. And the parole evidence of the GPL’s FAQ entry on this completely backs up that plain English meaning. If this did go to court, the saving grace would be that nobody ever told Joe about this license or his obligations. And that would probably mean that he would not be found liable for past damages. But (assuming the license was applied consistently and fairly), Joe could certainly be enjoined from any further distribution. But it’s not going to happen for the simple fact that nobody with software on that CD doesn’t want Joe handing copies to his friends!

    if you’re willing to concede that System | Administration | Software Sources | [X] Source Code is a valid written offer of source code for Canonical, then why not for Joe C.D. Burner?

    “Concede” is too strong of a word — it seems when you’re not busy sliding around to my side of the argument, you’re busy turning my uncertainty over something I wasn’t even contemplating into a ringing endorsement of your position. However, even if I did “concede” that point, can you really not see that Canonical offering a download of source from their own repositories is fundamentally different than Joe offering a download of source from Canonical’s own repositories and that both versions of the GPL actually carefully distinguish these two fundamentally different cases?

    Anyway, thanks again for helping to make my points for me.

  34. @The Monster:
    @Daniel Franke:

    Sorry. I didn’t actually read the license before I posted — it was obvious from the blog post announcing the license that it would violate “field of use,” but you are absolutely right — upon reading the license itself and the text rationale, it is obvious that they are not trying to pull the wool over anybody’s eyes about things like license compatibility.

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