More GPLv3 Confusion

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Ok, not quite done blogging for the day. You remember how I was saying the other day that one of the problems with the GPLv3 is that no two smart people read it the same way? Got another example for you, courtesy of Ian. According to his read, the assertion that I repeated the other day – that Tivo would no longer be able to use the kernel under GPLv3 – is incorrect. He says:

As far as I know (I’m not an insider), TiVo is not a derivative work of Linux in the legal sense—it’s simply a Linux application that happens to ship with a Linux distribution bundled as a complete package.

Given that it’s not a derivative work, the anti-DRM provisions (or anything else for that matter) in GPLv3 can’t affect TiVo at all, nor can they affect similar products that simply bundle a Linux application with Linux itself (i.e., pretty much any Linux-based server appliance, etc.).

Seems pretty straightforward, right? Well, he goes on to mention the fact that Eben Moglen may in fact be less than clear on the point himself:

Asked if TiVo could avoid using GPL 3.0 when that license is released next year, Moglen said, “Once a GPL’d work has been relicensed under GPLv3, although a party having a copy under GPLv2 could continue to distribute it under that license, any further maintenance from upstream would force the license upgrade.” TiVo could avoid using GPL 3.0 even if, say, the Linux kernel were to change licenses, but only by freezing itself at the last version of the kernel that was licensed under GPL 2. “That will prove to be impracticable in almost every real commercial setting,” Moglen said.

Hmmm – which is it? Damned if I know.

I don’t mean to pile on the FSF here; having a license that gracefully handles the multitude of technologies and trends in the market today is a decidedly non-trivial task, and this is of course why they’re providing for a long comment period. But it certainly appears to me that there is a disturbing lack of consensus, even amongst the constituency predisposed to give the license due consideration. I’m no lawyer, but I don’t think that bodes well for its ability to stand up in court. Here’s hoping the comment period is fruitful, and results in a clearer, less ambiguous GPL.


  1. I must say that, when reading your last post about the GPL, I thought the same thing Ian did. But, I've learned enough about laws to understand that logic never is a good bases for a legal argument. Even Linus' argument about with the DRM provision you'll have to make public your private encription key. I don't know if that's a fair assessement but, it sure looks stupid.
    Anyway, I may be lousing something but, my question about GPL3 is "Where does it stop"? If I'm understanding properly the DRM provision, it's a very bad case of precedent. If a licence starts prohibiting some use of some software, who's to say that someone will launch a licence that prohibits the software's use if you're a Republican? Or if you support the other football team.
    Yes, this examples are a bit ridiculous (if fact, the stupidest ones I could think of) but, between here and there, where will it stop?

  2. that uncertainty, to me, is the key issue to be addressed in the comment period. reasonable parties *have* to be able to agree on what a given license means.

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