Hi Marc, Thanks so much for your thoughtful response to the examples set out to help with the only-operator proposal. You are the first one to respond to this, and I hope that others will also chime in here. Example 4 is indeed what we have been struggling with and is a common example in that the way Github repos are created, it’s easy to have only the license file with no other license info. I think your further examples of the kinds of responses you might get when asking for clarification are also very realistic in that you can’t count on getting a clear answer! Some education and guidance on this is clearly needed, but may still run into these scenarios and it’s the job of SPDX to provide a clear way to identify what is found and a language to express that in.
I really hope you don’t go back to merely lurking! Cheers, Jilayne SPDX Legal Team co-lead [email protected] > Also to chime in on the question of if only a copy of the GPLv2 text is > include in a code base: > First I just want to offer my apologies for coming late to the party. I know > from the meeting notes everyone involved has been working very hard and > thoughtfully on this issue for months. My compliments to all of your hard > word and appreciation for whoever is responsible for keeping such detailed > meeting notes up to date. My comments are only meant to add to the > conversation, not distract from it. > I agree with the conclusions of examples 1, 2 and 3. > (https://wiki.spdx.org/index.php?title=Legal_Team/only-operator-proposal > <https://wiki.spdx.org/index.php?title=Legal_Team/only-operator-proposal>). > To address example 4. I think the solution is probably not intuitive (at > least it was not to me,) but if you only include the text of the GPLv2 with > no other licensing statements the plain meaning of the license text would > require concluding that the code base is GPLv2 only. I can imagine buying > into a theory where you get to any version of the GPL, and but at the moment > I do not see how to get to "GPLv2 or any later version." > The GPLv2 says "If the Program does not specify a version number of this > License, you may choose any version ever published by the Free Software > Foundation." Not trying to be pedantic but the text of the GPLv2 clear refers > to GPLv2. Being something seems to be the best way to specify that thing. If > the only licensing information in a code base is the exact text of GPLv2 I > have three questions: 1) does the mere presence of the GPLv2 text imply that > the author intended the accompanying code to be licensed under the GPLv2? 2) > Since the only licensing statement for the code base is implied by the full > text of the GPLv2, is there anyway to argue that the version wasn't > specified? And 3) is there anyway to argue that "or any later version" was > specified? > Q1: The answer to the first question is not obvious to me. To me the mere > presence of the license text in a file does not an explicit license make. I > think you need to rely on practice of the trade to get there, or at least an > implied license. Dropping the text of a license into a file called LICENSE or > even more specific to our industry COPYLEFT would not be obvious in all > situations that that is the intended license. It could just be a random file > with some other purpose that the copyright holder never noticed or intended > to give that kind of effect to. I know that flies in the face of a lot of > assumptions of the industry, but I think you would get a lot of mileage in > front of a judge who was not FOSS developer with that argument. The best > argument that it is a explicit license is that the name of the file 'LICENSE' > is the explicit license, but that leaves those folks using COPYLEFT out to > dry. At best including the text of a license is an implied license and is > supported by the practice of the trade so it is reasonable to rely on it. > Q2: To address the second question, I think you need to at the very least > accept that the license include in the LICENSE file is the license of the > code base. But then it seems contradictory to me to look at the full text of > GPLv2 and conclude that means GPL but it doesn't specify which version of the > GPL. At best I would think the implied license created by including the text > of a license in a LICENSE file is "the license of this code base is as > specified in the LICENSE file." And that license file clearly specifies the > GPLv2, so by the terms of the GPLv2 it would not have left the version > unspecified allowing you to choose any version of the GPL. > If you do not buy the argument that the text of the license by its nature > specifies the version of the license, then I will argue that Section 0 of > GPLv2 states that "*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." So the text of the license > says the "License" is "this license," which of course is GPLv2. And under > GPLv3 it gets more specific where "This License" is defined as "version 3 of > the GNU General Public License." It seems pretty clear that the version of > the license is specified when you include the full text of the license. > I would also think that people who dropped in a copy of GPLv3 and did not put > in any other licensing notice would be surprised to learn that people are > taking the license under GPLv2 because they failed to specify what version of > the GPL they meant. I think they would be particularly surprised if Tivo said > "great, you did not specify a version when you included the text of the GPLv3 > in your code base, so we will just use it under GPLv2." > Q3: I think the answer to the third question is similar to the reasoning of > the answer to Q2. According to GPLv2 the only time you can choose any any > later version of the license is when the copyright holder specifies "any > later version." Since that phrase only occurs in the license text in the > conditional statement granting this additional permission, I do not see how > you ever conclude the copyright holder meant GPLv2.0+ by the mere inclusion > of the license text in a code base. It seems like a separate explicit > licensing statement somewhere outside of the text of the license is > necessarily required to trigger that conditional clause. > I present this hypothetical as an example: You copy a code base that includes > a copy of the GPLv2 in a LICENSE file. There are no other licensing > statements in the code base. You contact the copyright holder to clarify the > license. > 1) They send you a hostile email telling you the license is specified in the > LICENSE file. Do you acknowledge their response and say you will be taking > the the code under GPLv3? > 2) They send you a hostile email telling you the license is GPLv2 as > specified in the LICENSE file. Do you acknowledge their response and say you > will be taking the the code under GPLv3? > 3) Your email to them expecility asks if the license is "GPLv2 or any later > version." They send you a polite email telling you the license is "GPLv2" as > specified in the LICENSE file. Do you thank them for their response and say > you will be taking the the code under GPLv3? > I feel like notifying them that you will be taking the code under GPLv3 under > all three scenarios seems risky. But even if you would not take the code > under even one of those circumstances it seems like you should not assume the > bare presence of the text of GPLv2 means GPLv2 or later. > How this is implemented in the SPDX codes might be problematic, but seems > like you folks are on the right track. > I will attempt to return to my lurking now. My apologies for the uninvited > opining. > Warm regards, > -Marc > P.S. This was not legal advice, these view represent my own and not the views > of my company. My opinion may change depending on the context in which > similar questions arise, my mood, or what I ate for lunch that day, blah, > blah, .... > [1] http://www.apache.org/foundation/license-faq.html#mod-license > <http://www.apache.org/foundation/license-faq.html#mod-license> > > _______________________________________________ > Spdx-legal mailing list > [email protected] > https://lists.spdx.org/mailman/listinfo/spdx-legal
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