[Fedora-legal-list] License question

[Tom "spot" Callaway]

On 09/21/2010 03:54 PM, Michel Alexandre Salim wrote:
> On Tue, Sep 21, 2010 at 9:45 PM, Jochen Schmitt <Jochen at herr-schmitt.de> wrote:
>>
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>> Am 21.09.2010 21:34, schrieb Tom "spot" Callaway:
>>>> The gpl.txt file included in the package is of version 3 of the
>>>> license, but the preamble doesn't state a version. Is this
>>>> okay?
>>>
>>> It's okay, but if no version is specified in the code or
>>> corresponding documentation (note: _NOT_ COPYING), then it is GPL+.
>>>
>> Why not COPYING? If an author copying a license text in his
>> upstream distribution, their declares that the terms written
>> down in this document should be apply to this work which
>> should release.
>>
> IANAL, but I've seen project websites where the license declaration
> just link to the current GPL page on the GNU website, even when this
> might conflict with what the headers on the source files actually say.
> Presumably the situation with bundled COPYING files are the same --
> that, given that the files might become detached from the bundle and
> reused elsewhere (hello, Sun RPC), that we can't attach any legal
> significance to the copyright file that comes with the bundle or is
> posted on a website, certainly not when it comes to details as to
> which version is to be used.

Well, this is true, but the GPL/LGPL are notably special.

1) COPYING is not considered part of the copyrighted work. If you think
about this for a second, it makes sense. For example, look at what GPLv2
says:

  Everyone is permitted to copy and distribute verbatim copies
  of this license document, but changing it is not allowed."

If COPYING was part of the copyrighted work (and thus, was available
under the terms of the GPLv2, it would have the right to modify).

2) Now, look at this wording (from GPLv2):

  This License applies to any program or other work which contains a
  notice placed by the copyright holder saying it may be distributed
  under the terms of this General Public License.

The inclusion of COPYING counts as this notice, even though it isn't
part of the "program or other work". A mention in the documentation will
also suffice, but per-file attribution is ideal.

Right after that, it defines "the Program" as:

  The "Program", below, refers to any such program or work, and a "work
  based on the Program" means either the Program or any derivative work
  under copyright law: that is to say, a work containing the Program or
  a portion of it, either verbatim or with modifications and/or
  translated into another language.

Remember, COPYING is not part of the "Program". The "Program" is what
the GPL covers.

3) Combine that with this (again, from GPLv2):

  If the Program specifies a version number of this License which
  applies to it and "any later version", you have the option of
  following the terms and conditions either of that version or of any
  later version published by the Free Software Foundation. If the
  Program does not specify a version number of this License, you may
  choose any version ever published by the Free Software Foundation.

Conclusion: We need to look to the "Program" to specify a version
number, we cannot trust what is in COPYING, specifically because COPYING
says versioning depends on what the "Program" says (or fails to say),
and COPYING itself is not part of the "Program".

Believe it or not, I'm pretty sure this is intentional (or at least, a
happy accident), based on conversations with various folks at the FSF,
and the fact that the same logic persists through v2 and v3 of the GPL
and LGPL.

~spot