Conservancy & the FSF Achieve GPL Compliance for Canonical, Ltd. “Intellectual Property” Policy

[Bradley M. Kuhn]

            Conservancy & the FSF Achieve GPL Compliance for
             Canonical, Ltd. “Intellectual Property” Policy

               Canonical, Ltd.'s Policy Complies With GPL
      But Fails To Address Other Important Software Freedom Issues


Today, Canonical, Ltd. announced an updated “Intellectual Property”
policy. Conservancy has analyzed this policy and confirms that the
policy complies with the terms of the GNU General Public License (GPL),
but Conservancy and the FSF believe that the policy still creates
confusion and possible risk for users who wish to exercise their rights
under GPL.  Background

Conservancy, on behalf of its GPL Compliance Project for Linux
Developers, and its other GPL'd projects such as Samba, first received a
GPL violation report in April 2013 regarding the earlier Canonical,
Ltd. “Intellectual Property” policy. After a few months working on this
matter, Conservancy discovered that the FSF was also working on the
issue. The FSF and Conservancy agreed that it was best for the GPL
enforcement community to speak with one voice in negotiation with
Canonical, Ltd. to resolve the matter amicably. Conservancy has since
then coordinated with the FSF as they took the lead in seeking
resolution for the matter. In recent weeks, both FSF and Conservancy
have negotiated directly with Canonical, Ltd. to resolve the GPL
violation.  Why The Original Policy Violated

The GPLv2§6 and GPLv3§10¶3 explicitly forbid restrictions on the rights
already granted in the GPL. As such, any extra requirement imposed on
distribution of GPL'd software violates GPL. Copyleft advocates have
historically described such requirements this way: no further agreement
can “trump” the rights granted by GPL.

For example, Canonical, Ltd.'s original policy required that
redistributors "needed to recompile the source code to create [their]
own binaries". GPL never requires recompilation of binaries; rather, the
GPL simply requires that you pass along source code that successfully
can be recompiled into binaries (and installed) by someone skilled in
software development. Requirement of such action as a condition of
distribution is an extra requirement, and the GPL forbids its
imposition.  Today's Change

Today, as an outcome of these careful negotiations between Canonical,
Ltd., Conservancy and the FSF, Canonical, Ltd. published an updated
policy that includes this revision:

>    Ubuntu is an aggregate work of many works, each covered by their
>    own license(s). For the purposes of determining what you can do
>    with specific works in Ubuntu, this policy should be read together
>    with the license(s) of the relevant packages. For the avoidance of
>    doubt, where any other license grants rights, this policy does not
>    modify or reduce those rights under those licenses.

This change is sufficient for compliance with the GPL. This “trump
clause” effectively reverses the default situation of the policy, and
mandates that when Canonical, Ltd.'s policy contradicts something that
the GPL requires, or prohibits something that the GPL allows, the rights
granted in the GPL shall prevail.

While a trump clause is a reasonable way to comply with the GPL in a
secondary licensing document, the solution is far from
ideal. Redistributors of Ubuntu have little choice but to become expert
analysts of Canonical, Ltd.'s policy. They must identify on their own
every place where the policy contradicts the GPL. If a dispute arises on
a subtle issue, Canonical, Ltd. could take legal action, arguing that
the redistributor's interpretation of GPL was incorrect. Even if the
redistributor was correct that the GPL trumped some specific clause in
Canonical, Ltd.'s policy, it may be costly to adjudicate the issue.
Recommendations

Therefore, Conservancy encourages Canonical, Ltd. to make the many
changes and improvements to their policy recommended during the FSF-led
negotiations with them. Good community actors should embody the spirit
of software freedom as well as meeting the exact letter of the rules.

Even more importantly, since non-copyleft licenses do not necessarily
forbid imposition of further restrictions, the community of Ubuntu
redistributors should respond with concern. While Conservancy believes
the key software freedoms and rights to copy, modify and redistribute
Ubuntu are fully assured by this change with regard to copylefted
software, a trump clause does not help with regard to non-copyleft
licenses. Since Ubuntu is an aggregation of many copylefted and
non-copylefted programs, full permission to redistribute of Ubuntu as a
whole remains in question.

Finally, Conservancy recommends reading the FSF's statement on
Canonical, Ltd.'s policy as well.

-- 
Bradley M. Kuhn
President & Distinguished Technologist of Software Freedom Conservancy