Validity of a GPL exception

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+5 Q:

Validity of a GPL exception

I have been contracted to modifying software released under the GPL. The small research company that I am consulting for will be submitting analysis of the output of the modified software as part of a response to a RFP by the US Department of Defense. But there's a catch.

The source directory contains a file called "COPYRIGHT" (along with your standard GPL.txt) that contains the follow text:

"This program is free software. Permission is hereby granted to use, redistribute and/or modify it under the terms of the GNU General Public License (GPL) as published by the Free Software Foundation with the sole EXCEPTION that the software and all parts of it may NEVER BE USED FOR ANY MILITARY PURPOSE, whether it be research or not, commercial or otherwise. You may apply either version 2 of the GPL, or (at your option) any later version."

This restriction is clearly incompatible with of section 6 of the GPL (...You may not impose any further restrictions on the recipients' exercise of the rights granted herein...)

So, it appears they have violated the GPL.

Can I consider their restriction of my GPL rights void?

+10 A:

Section 6 doesn’t apply here: it is talking to the user/distributor of the code + license (the licensee), not to the one who created the code and granted the license:

You may not impose any further restrictions on the recipients' exercise of the rights granted herein.

and

Each licensee is addressed as "you".

(emphasis mine.)

I don’t know whether such a clause has any validity but I don’t see why copyright owners couldn’t take an existing license and add their own clauses to it. Of course, that’s no longer a GPL, but it is still a license, with restrictions that go further than those in the GPL.

Konrad Rudolph 2009-11-08 09:56:30

The copyright owner definitely has the right to restrict the usage of *his* original work so I'm quite certain that the clause is valid - unless the software in question is based on other GPLd software, in which case the author has no right to release the work under other license than GPL.

Joonas Pulakka 2009-11-08 10:07:18

+8 A:

Two interesting bits from GNU's FAQ:

I'd like to license my code under the GPL, but I'd also like to make it clear that it can't be used for military and/or commercial uses. Can I do this?

No, because those two goals contradict each other. The GNU GPL is designed specifically to prevent the addition of further restrictions. GPLv3 allows a very limited set of them, in section 7, but any other added restriction can be removed by the user.

Can I modify the GPL and make a modified license?

You can use the GPL terms (possibly modified) in another license provided that you call your license by another name and do not include the GPL preamble, and provided you modify the instructions-for-use at the end enough to make it clearly different in wording and not mention GNU (though the actual procedure you describe may be similar).

…

They have modified the GPL in a way that isn't allowed.

From the GPL:

7. Additional Terms.

"Additional permissions" are terms that supplement the terms of this License by making exceptions from one or more of its conditions.

…

All other non-permissive additional terms are considered “further restrictions” within the meaning of section 10. If the Program as you received it, or any part of it, contains a notice stating that it is governed by this License along with a term that is a further restriction, you may remove that term.

…

Seems like you're allowed to remove that part of the license, but there's no way around asking a lawyer.

Georg 2009-11-08 10:24:36

I'm a supporter of FOSS, and certainly appreciate the authors' work, but I obviously disagree with their (attempted?) politically motivated restriction. Politics have no place in FOSS.

Vyel 2009-11-08 10:34:22

I think that the second conclusion you draw is wrong: it may no longer be a GPL but saying that the whole license is void, or that the added clause doesn’t apply, seems very risky without consulting a lawyer.

Konrad Rudolph 2009-11-08 10:45:10

@Vyel: “politics have no place in FOSS.” – sorry, but this is stupid. FOSS *is* politics. In particular, Open Source licenses are a tool to push a political agenda (notice that by uisng the word “agenda” I don’t necessarily condemn this). In particular, FOSS is all about *ethics*. So restricting use to non-military applications seems only consequent for someone who opposes military on ethical grounds. You don’t need to agree with their ethics but you may have to respect it.

Konrad Rudolph 2009-11-08 10:48:31

I'm surprised that this misleading stuff has been put into GNU's FAQ. It's a riddle: of course the author can add his own restrictions to a GPL - it's just not GPL any more then. But there's nothing wrong in doing so. What may be wrong is that if the author has claimed the software to GPL while it's actually not, but it's hardly a "violation".

Joonas Pulakka 2009-11-08 10:49:38

Joonas: Quite true. IANAL, of course, but I don't see how the **author** could possibly violate the GPL.

innaM 2009-11-08 11:26:49

@Konrad: If an author restricts the use software in a manner such as this, it is not FOSS. Perhaps this is more clear if an author replaced the restriction of use by militaries to restriction of use by gays, war veterans, SUV drivers, Muslims, smokers, or rich people, because the author opposes them on ethical grounds.Maybe the next piece of software I write will deny usage rights to fat people and still claim it's FOSS.

Vyel 2009-11-08 11:26:52

@Vyel: You have the freedom to do it. There are several definitions of FOSS out there, and while software restricted from fat people would probably not qualify for most of the existing definitions, nothing prevents you from calling it FOSS regardless, according to your own definition of FOSS. That's what the freedom is about, although some parties (like GNU) try to claim their own definition the only valid one. It's up to the users of the software what they decide to support and what not.

Joonas Pulakka 2009-11-08 11:41:12

gs: Much thanks! I would also like to thank the FSF for the GPLv3, and the authors of the software for permitting users to apply GPLv2 or greater, because GPLv3 strips their "NO MILITARY PURPOSES" restriction. This is a win for FOSS.

Vyel 2009-11-08 12:10:06

@gs: sorry, I downvoted your answer by mistake :-( Now I can’t change this because the downvote is too old. But if you *change* your answer slightly I can re-cast my vote.

Konrad Rudolph 2009-11-08 12:25:23

@Vyel: surely you see that there’s a difference between discriminating against a ethnicity/religion/group and discriminating against a money-making corporation whose agenda you oppose. From an ethical perspective, there’s a *huge* difference, as is from a legal perspective. In particular, the first is illegal in most countries and may even constitute a hate crime, while the latter is absolutely legal (in general, not in the particular case of the GPLv3).

Konrad Rudolph 2009-11-08 12:29:42

@Konrad: Thanks. I'm not even sure it deserves that many upvotes. Personally, I wouldn't believe anything written here and ask a proper lawyer.

Georg 2009-11-08 12:34:14

@Konrad: Of course I understand the difference. I chose a few popular targets for discrimination to illustrate the ridiculousness of software license discrimination. Free should mean free for everyone. The agenda of the military is to protect its citizens from foreign enemies. Personally, I find it despicable to outright deny them of a free resource that they will use to help keep good people safe.

Vyel 2009-11-08 13:15:11

@Vyel: That depends on if you see the military as something that just defends its people or as something that _creates_ conflicts. Some people think we'd be better off having no military, that's a perfectly valid view even if you don't share it.

Georg 2009-11-08 13:50:08

+2 A:

If the license is void, as some people are saying, you don't have any right to use the code at all. A license gives you rights you would not have otherwise. It's the author's code; you use it as the author dictates, or not at all.

I'd say the code is available under a not-quite-FOSS license which is derived from the GPL. It's not GPL code.

Whether the option to apply any later version of the GPL overrides this restriction is a nice question, which you'd need a lawyer to answer. I do think, though, that using this code for military purposes, even if legal, would be somewhat discourteous.

(This is timothy.green.name, but I'm having problems with MyOpenID at the minute.)

TRiG 2009-12-05 19:24:46

+1 A:

The author can (probably) grant whichever rights they want. However, "GPL with restrictions" is not GPL, so if they link to any GPL code, their code would need to be licensed under both "GPL with restrictions" and GPL, so you can safely use the GPL license. However, if they do not do anything that requires the code to be released under the GPL, they can probably attach any reasonable license agreement they want to it.

erikkallen 2009-12-17 12:28:23

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answers:

Validity of a GPL exception

I'd like to license my code under the GPL, but I'd also like to make it clear that it can't be used for military and/or commercial uses. Can I do this?

Can I modify the GPL and make a modified license?

7. Additional Terms.

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