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<title>What (削除) does "the Program" mean (削除ここまで) (追記) Does “The Program” Mean (追記ここまで) in GPLv3?
- GNU Project - Free Software Foundation</title>
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<h2>What (削除) does "the Program" mean (削除ここまで) (追記) Does “The Program” Mean (追記ここまで) in GPLv3?</h2>
(追記) <div class="thin"></div> (追記ここまで)
<h3>Summary</h3>
<p>In version 3 of the GNU General Public License (GPLv3), the term (削除) "the
Program" (削除ここまで) (追記) ”the
Program” (追記ここまで) means one particular work that is licensed under GPLv3 and is
received by a particular licensee from an upstream licensor or
distributor. The Program is the particular work of software that you
received in a given instance of GPLv3 licensing, as you received it.</p>
(削除) <p>"The Program" (削除ここまで)
(追記) <p>“The Program” (追記ここまで) cannot mean (削除) "all (削除ここまで) (追記) “all (追記ここまで) the works ever licensed
under (削除) GPLv3"; (削除ここまで) (追記) GPLv3”; (追記ここまで) that interpretation makes no sense, because (削除) "the
Program" (削除ここまで) (追記) “the
Program” (追記ここまで) is singular: those many different programs do not constitute
one program.</p>
<p>In particular, this applies to the clause in section 10, paragraph 3
of GPLv3 which (削除) states</p> (削除ここまで) (追記) states:</p> (追記ここまで)
<blockquote><p>[Y]ou may not initiate litigation (including a cross-claim or
 counterclaim in a lawsuit) alleging that any patent claim is
 infringed by making, using, selling, offering for sale, or importing
 the Program or any portion of it.</p></blockquote>
<p>This is a condition that limits the ability of a GPLv3 licensee to
bring a lawsuit accusing the particular GPLv3-covered software
received by the licensee of patent infringement. It does not speak to
the situation in which a party who is a licensee of GPLv3-covered
program A, but not of unrelated GPLv3-covered program B, initiates
litigation accusing program B of patent infringement. If the party is
a licensee of both A and B, that party would potentially lose rights
to B, but not to A.</p>
<p>Since software patents pose an unjust threat to all software
developers, all software distributors, and all software users, we
would abolish them if we could. Indeed, we campaign to do so. But we
think it would have been self-defeating to make the license conditions
for any one GPL-covered program go so far as to require a promise
to never attack any GPL-covered program.</p>
<h3>Further analysis</h3>
<p>GPLv3 defines (削除) "the Program" (削除ここまで) (追記) “the Program” (追記ここまで) as follows:</p>
(削除) <blockquote><p>"The Program" (削除ここまで)
(追記) <blockquote><p>“The Program” (追記ここまで) refers to any copyrightable work
 licensed under this License.</p></blockquote>
<p>Some have contended that this definition can be read to mean all
GPLv3-licensed works, rather than the one particular GPLv3-licensed
work received by a licensee in a given licensing context. These
readers have expressed particular concern about the consequences of
such an interpretation for the new patent provisions of GPLv3,
especially the patent termination condition found in the third
paragraph (追記) of section (追記ここまで) 10 and the express patent license grant made by upstream
contributors under the third paragraph of section 11. This overbroad
reading of (削除) "the Program" (削除ここまで) (追記) “the Program” (追記ここまで) is incorrect, and contrary to our intent as
the drafters of GPLv3.</p>
<p>The word (削除) "any" (削除ここまで) (追記) “any” (追記ここまで) is susceptible to multiple, subtly different
shades of meaning in English. In some contexts, (削除) "any" (削除ここまで) (追記) “any” (追記ここまで) means
(削除) "every" (削除ここまで)
(追記) “every” (追記ここまで) or (削除) "all"; (削除ここまで) (追記) “all”; (追記ここまで) in others, including the definition
of (削除) "the Program" (削除ここまで) (追記) “the Program” (追記ここまで) in GPLv3, it suggests (削除) "one (削除ここまで) (追記) “one (追記ここまで) particular
instance of, selected from many (削除) possibilities". (削除ここまで) (追記) possibilities.” (追記ここまで) This variability has
to be resolved by the context. This context resolves it, but it requires
some thought.</p>
<p>We could have worded the definition of (削除) "the Program" (削除ここまで) (追記) “the Program” (追記ここまで)
differently, such as by using (削除) "a particular" (削除ここまで) (追記) “a particular” (追記ここまで) instead of
(削除) "any", (削除ここまで)
(追記) “any,” (追記ここまで) but that would not have eliminated the need for thought.
The phrase (削除) "a (削除ここまで) (追記) “a (追記ここまで) particular work licensed under this (削除) License", (削除ここまで) (追記) License,” (追記ここまで)
regarded in isolation, would not necessarily signify (削除) *the* (削除ここまで) (追記) <em>the</em> (追記ここまで) particular work
received by a particular (削除) "you" (削除ここまで) (追記) “you” (追記ここまで) in a particular act of licensing
or distribution. Our review of other free software licenses shows that
they raise similar issues of interpretation, with words of general
reference used in order to facilitate license reuse.</p>
<p>Given that no choice is so clear that all other candidate meanings
must be rejected, (削除) "any" (削除ここまで) (追記) “any” (追記ここまで) has certain advantages. It is a somewhat
more informal and less legalistic usage than the possible
alternatives, an appropriate register for the developers reading
and applying the license. Moreover, the usage of (削除) "any", (削除ここまで) (追記) “any,” (追記ここまで) through
its suggestion of selection out of many qualifying possibilities,
has the effect of emphasizing the reusability of GPLv3 for
multiple works of software and in multiple licensing situations.
The GNU GPL is intended to be used by many developers on their programs
and that too needs to be clear.</p>
<p>The same use of (削除) "any" (削除ここまで) (追記) “any” (追記ここまで) that has given rise to interpretive
concerns under GPLv3 exists in GPLv2, in its corresponding definition.
Section 0 of GPLv2 states:</p>
<blockquote><p>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
 (削除) "Program", (削除ここまで)
 (追記) “Program,” (追記ここまで) below, refers to any such program or work, and a
 (削除) "work (削除ここまで)
 (追記) “work (追記ここまで) based on the (削除) Program" (削除ここまで) (追記) Program” (追記ここまで) means either the Program or any
 derivative work under copyright law …</p></blockquote>
<p>However, it has always been the understanding of the FSF and others in
the GPL-using community that (削除) "the Program" (削除ここまで) (追記) “the Program” (追記ここまで) in GPLv2 means the
particular GPL-covered work that you receive, before you make any
possible modifications to it. The definition of (削除) "the Program" (削除ここまで) (追記) “the Program” (追記ここまで) in
GPLv3 is intended to preserve this meaning.</p>
<p>We can find no clause in GPLv3 in which applying the suggested broad
interpretation of (削除) "the Program" (削除ここまで) (追記) “the Program” (追記ここまで) (and the superset term
(削除) "covered work") (削除ここまで)
(追記) “covered work”) (追記ここまで) would make sense or have any practical
significance, consistent with the wording of the clause and its drafting
history. The patent provisions of GPLv3 are a case in point.</p>
<p>The third paragraph of section 11 states:</p>
<blockquote><p>Each contributor grants you a non-exclusive, worldwide,
 royalty-free patent license under the contributor's essential patent
 claims, to make, use, sell, offer for sale, import and otherwise run,
 modify and propagate the contents of its contributor
 version.</p></blockquote>
<p>A (削除) "contributor" (削除ここまで) (追記) “contributor” (追記ここまで) is defined as (削除) "a (削除ここまで) (追記) “a (追記ここまで) copyright holder who
authorizes use under this License of the Program or a work on which the
Program is (削除) based."</p> (削除ここまで) (追記) based.”</p> (追記ここまで)
<p>The broad reading of (削除) "the Program", (削除ここまで) (追記) “the Program,” (追記ここまで) it has been suggested,
gives rise to an unreasonably broad patent license grant. The reasoning is
that, for a given GPLv3 licensee, the set of contributors granting patent
licenses becomes all GPLv3 licensors of all GPLv3-covered works in the
world, and not merely licensors of the specific work received by that
licensee in a particular act of licensing.</p>
<p>Close attention to the wording of the patent license grant, however,
shows that these concerns are unfounded. In order to exercise the
permissions of the patent license grant, a GPLv3 licensee must have
(削除) "the (削除ここまで)
(追記) “the (追記ここまで) contents of [the contributor's] contributor (削除) version" (削除ここまで) (追記) version” (追記ここまで) in his
possession. If he does, then he is necessarily a recipient of that
material, licensed to him under GPLv3.</p>
<p>Therefore, contributors are always the actual copyright licensors of the
material that is the subject of the patent license grant. The user
benefiting from the patent license grant has ultimately received the
material covered by the grant from those contributors. If it were
otherwise, the patent license grant would be meaningless, because the
exercise of its permissions is tied to the contributor's (削除) "contributor
version". (削除ここまで) (追記) “contributor
version.” (追記ここまで) The contributors and the section 11 patent licensee stand
in a direct or indirect distribution relationship. Therefore, section 11,
paragraph 3 does not require you to grant a patent license to anyone who is
not also your copyright licensee. (Non-contributor redistributors remain
subject to applicable implied patent license doctrine and to the special
(削除) "automatic extension" (削除ここまで)
(追記) “automatic extension” (追記ここまで) provision of section 11, paragraph 6.)</p>
<p>There is similarly no basis for the broad reading of (削除) "the
Program" (削除ここまで) (追記) “the
Program” (追記ここまで) when one considers the patent-related clause in the third
paragraph of section 10. This clause provides:</p>
<blockquote><p>[Y]ou may not initiate litigation (including a cross-claim
 or counterclaim in a lawsuit) alleging that any patent claim is infringed
 by making, using, selling, offering for sale, or importing the Program or
 any portion of it.</p></blockquote>
<p>Coupled with the patent license grant of section 11, paragraph 3, and
the termination clause of section 8, this section 10 clause gives rise
to a patent termination condition similar in scope to that contained
in the Apache License version 2.0.</p>
<p>The FSF sympathizes with the intent of broad patent retaliation
clauses in some free software licenses, since the abolition of
software patents is greatly to be desired. However, we think that
broad patent retaliation provisions in software licenses are unlikely
to benefit the community, especially those clauses which can be
triggered by patent litigation concerning other programs unrelated to
the software whose license permissions are being terminated. We were
very cautious in taking steps to incorporate patent retaliation into
GPLv3, and the section 10, paragraph 3 clause is intended to be
narrower than patent retaliation clauses in several other well-known
licenses, notably the Mozilla Public License version 1.1, with respect
to termination of patent licenses.</p>
<p>If the suggested interpretation of (削除) "the Program" (削除ここまで) (追記) “the Program” (追記ここまで) applied to the
section 10, paragraph 3 clause, the result would be a radical
departure from our consistent past statements and policies concerning
patent retaliation, which we clearly did not intend.</p>
<p>Other text in GPL version 3 shows the same policy. The patent
litigation clause in section 10 was added to Draft 3 of GPLv3 as a
replacement for part of the previous clause 7(b)(5) (in Draft 2).
Clause 7(b)(5) permitted the placement of two categories of patent
termination provisions on GPLv3-licensed works:</p>
<blockquote><p>terms that wholly or partially terminate, or allow
 termination of, permission for use of the material they cover, for a user
 who files a software patent lawsuit (that is, a lawsuit alleging that
 some software infringes a patent) not filed in retaliation or defense
 against the earlier filing of another software patent lawsuit, or in
 which the allegedly infringing software includes some of the covered
 material, possibly in combination with other software
 …</p></blockquote>
<p>Section 7 does not state the GPL's own policy; instead it says how far
other compatible licenses can go. Thus, that text in section 7 would
not have established broad patent retaliation; it only would have
permitted combining GPL-covered code with other licenses that do such
broad patent retaliation.</p>
<p>Nonetheless, as explained in the Rationale for Draft 3, such broad
retaliation was criticized because it could apply to software patent
lawsuits in which the accused software was unrelated to the software
that was the subject of the license. Seeing that there were no widely
used licenses with which this would provide compatibility, in (削除) draft (削除ここまで) (追記) Draft (追記ここまで) 3
we dropped broad patent retaliation from the range of GPL
compatibility.</p>
<p>We did so by replacing 7(b)(5) with text in section 10, in which we
kept only what corresponded to the second category. The first
category therefore reverted to being a GPL-incompatible (削除) "further
restriction" (削除ここまで) (追記) “further
restriction” (追記ここまで) in Draft 3, and likewise in GPL version 3 as actually
published.
</p>
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