Subject: Affero GPL 2(d)
From: Eben Moglen <moglen@columbia.edu>
Date: Fri, 13 Aug 2004 10:50:30 -0400

Michael,

Henri has reminded me of an overdue obligation to respond to
discussion of the Affero GPL as a potential candidate for OSI
approval.  One issue that was raised in the course of the conversation
is the technologically non-neutral form of Affero GPL 2(d).  This is a
drafting error for which I was responsible.  Our current projected 2(d)
for use in a modified Affero GPL or other similar license is:

   d) If the Program as you received it is intended to interact with
   users through a computer network and if, in the version you received,
   any user interacting with the Program was given the opportunity to
   request transmission to that user of the Program's complete source
   code, you must not remove that facility from your modified version of
   the Program or work based on the Program, and must offer an equivalent
   opportunity for all users interacting with your Program through a
   computer network to request immediate transmission of the complete
   source code of your modified version or other derivative work by the
   same communication protocol used for other user interaction with the
   Program.

It has also been suggested that the license fails because it would not
be violated by returning a protocol-acceptable but uncooperative
response to a request for source code.  I don't think that objection
is well-founded.  Responding "Good luck" is not an "equivalent
opportunity [for] transmission of the complete source code," which the
license requires.  The licensor's intention is the law's consistent
guide in the interpretation of licenses, and in this instance the
licensor's intention is not served if the function performed by the
original work is replaced by polite refusal to function.  Polite
infringement, like impolite infringement, is not allowed.  For
clarity's sake, however, one would meet this objection in amending the
license text, by s/request immediate/request and receive immediate/.
I see no legal risk that would be created by the addition of those
words.

Regards.

-- 
 Eben Moglen                       voice: 212-854-8382 
 Professor of Law                    fax: 212-854-7946       moglen@
 Columbia Law School, 435 West 116th Street, NYC 10027     columbia.edu
 General Counsel, Free Software Foundation   http://moglen.law.columbia.edu