Relevant text from FSF's "Denationalization of Terminology"

as published circa late 2006-07 (around time of GPLv3 Second Discussion Draft)

I (Bradley M. Kuhn) carefully went through FSF's "Denationalization of
Terminology", which appears to have been published on Wednesday 2 August 2006
(a few days after the second GPLv2 discussion draft published on Thursday 27
July 2006), and merged in any relevant text and descriptions that might be of
use in this tutorial.

The raw material used for this commit can be found here:
    http://gplv3.fsf.org/opinions-draft-2.html
Specifically, a copy of the LaTeX sources are here:
    http://gplv3.fsf.org/denationalization-dd2.tex

As I merged in this text, I added FIXME's where it seemed the text was
incomplete or referred to parts of GPLv3 draft text that disappeared in later
versions.

Finally, note that this material was originally copyrighted and licensed as
follows:

  Copyright © 2006 Free Software Foundation, Inc.

  Verbatim copying and distribution of this entire article are permitted
  worldwide, without royalty, in any medium, provided this notice, and the
  copyright notice, are preserved.

However, I am hereby relicensing this material to CC-By-SA-4.0, with the
verbal permission from John Sullivan, Executive Director of the FSF, which
was given to me during a conference call on Wednesday 12 February 2014.

gpl-lgpl.tex

@@ -2213,10 +2213,72 @@ adds one.  Most of these defined terms are somewhat straightforward and bring
 forward better worded definitions from GPLv2.  Herein, this tutorial
 discusses a few of the new ones.
 
+% FIXME: it's now five, ``Modify''
+
 GPLv3~\S0 includes definitions of four new terms not found in any form in
 GPLv2: ``covered work'', ``propagate'', ``convey'', and ``Appropriate Legal
 Notices''.
 
+% FIXME: Transition, GPLv2 ref needed.
+
+Although the definition of ``work based on the Program'' made use of a legal
+term of art, ``derivative work,'' peculiar to US copyright law, we did not
+believe that this presented difficulties as significant as those associated
+with the use of the term ``distribution.''  After all, differently-labeled
+concepts corresponding to the derivative work are recognized in all copyright
+law systems.  That these counterpart concepts might differ to some degree in
+scope and breadth from the US derivative work was simply a consequence of
+varying national treatment of the right of altering a copyrighted work.
+
+%FIXME: should we keep this? maybe a footnote?
+
+Ironically, the criticism we have received regarding the use of
+US-specific legal terminology in the ``work based on the Program''
+definition has come not primarily from readers outside the US, but
+from those within it, and particularly from members of the technology
+licensing bar.  They have argued that the definition of ``work based
+on the Program'' effectively misstates what a derivative work is under
+US law, and they have contended that it attempts, by indirect means,
+to extend the scope of copyleft in ways they consider undesirable.
+They have also asserted that it confounds the concepts of derivative
+and collective works, two terms of art that they assume, questionably,
+to be neatly disjoint under US law.
+
+% FIXME: As above
+
+We do not agree with these views, and we were long puzzled by the
+energy with which they were expressed, given the existence of many
+other, more difficult legal issues implicated by the GPL.
+Nevertheless, we realized that here, too, we can eliminate usage of
+local copyright terminology to good effect.  Discussion of GPLv3 will
+be improved by the avoidance of parochial debates over the
+construction of terms in one imperfectly-drafted copyright statute.
+Interpretation of the license in all countries will be made easier by
+replacement of those terms with neutral terminology rooted in
+description of behavior.
+
+%FIXME: GPLv3, reword a bit.
+
+Draft 2 therefore takes the task of internationalizing the license
+further by removing references to derivative works and by providing a
+more globally useful definition of a work ``based on'' another work.
+We return to the basic principles of users' freedom and the common
+elements of copyright law.  Copyright holders of works of software
+have the exclusive right to form new works by modification of the
+original, a right that may be expressed in various ways in different
+legal systems.  The GPL operates to grant this right to successive
+generations of users, particularly through the copyleft conditions set
+forth in section 5 of GPLv3, which applies to the conveying of works
+based on the Program.  In section 0 we simply define a work based on
+another work to mean ``any modified version for which permission is
+necessary under applicable copyright law,'' without further qualifying
+the nature of that permission, though we make clear that modification
+includes the addition of material.\footnote{We have also removed the
+paragraph in section 5 that makes reference to ``derivative or
+collective works based on the Program.''}
+
+%FIXME: transition
+
 While ``covered by this license'' is a phrase found in GPLv2, defining it
 more complete in a single as ``covered work'' enables some of the wording in
 GPLv3 to be simpler and clearer than its GPLv2 counterparts.
@@ -2233,11 +2295,25 @@ possible in its wording and effect.  When a work is licensed under the GPL,
 the copyright law of some particular country will govern certain legal issues
 arising under the license.  A term like ``distribute'' or its equivalent in
 languages other than English, is used in several national copyright statutes.
+
+Practical experience with GPLv2 revealed the awkwardness of using the
+term ``distribution'' in a license intended for global use.  
 The scope of ``distribution'' in the copyright context can differ from
 country to country.  The GPL does not seek to necessarily use the specific
 meaning of ``distribution'' that exists under United States copyright law or
 any other country's copyright law.
 
+%FIXME: rewrite, FSF third person,e tc.
+
+Even within a single country and language, the term distribution may be
+ambiguous; as a legal term of art, distribution varies significantly in
+meaning among those countries that recognize it.  For example, we have been
+told that in at least one country distribution may not include network
+transfers of software but may include interdepartmental transfers of physical
+copies within an organization.  In many countries the term ``making available
+to the public'' or ``communicating to the public'' is the closest counterpart
+to the generalized notion of distribution that exists under US law.
+
 Therefore, the GPL defines the term ``propagate'' by reference to activities
 that require permission under ``applicable copyright law'', but excludes
 execution and private modification from the definition.  GPLv3's definition
@@ -2245,6 +2321,27 @@ also gives examples of activities that may be included within ``propagation''
 but it also makes clear that, under the copyright laws of a given country,
 ``propagation'' may include other activities as well.
 
+% FIXME: probably merge this in
+
+Propagation is defined by behavior, and not by categories drawn from some
+particular national copyright statute.  We believe that such factually-based
+terminology has the added advantage of being easily understood and applied by
+individual developers and users.
+
+% FIXME: transition here to convey definition, maybe with \subsection {},
+%        also maybe with: Similar is true with the term ``convey''.
+
+we have further internationalized the license by removing references to
+distribution and replacing them with a new factually-based term,
+``conveying.'' Conveying is defined to include activities that constitute
+propagation of copies to others.  With these changes, GPLv3 addresses
+transfers of copies of software in behavioral rather than statutory terms.
+At the same time, we have acknowledged the use of ``making available to the
+public'' in jurisdictions outside the US by adding it as a specific example
+in the definition of ``propagate.'' We decided to leave the precise
+definition of an organizational licensee, and the line drawn between
+licensees and other parties, for determination under local law.
+
 % FIXME: paragraph number change , and more on Convey once definition comes.
 
 The third paragraph of section 2 represents another effort to compensate for
@@ -2932,6 +3029,32 @@ No substantive changes have been made in sections 15 and 16.
 
 % FIXME: more, plus 17
 
+% FIXME: Section header needed here about choice of law.
+
+% FIXME: reword into tutorial
+
+Some have asked us to address the difficulties of internationalization
+by including, or permitting the inclusion of, a choice of law
+provision.  We maintain that this is the wrong approach.  Free
+software licenses should not contain choice of law clauses, for both
+legal and pragmatic reasons.  Choice of law clauses are creatures of
+contract, but the substantive rights granted by the GPL are defined
+under applicable local copyright law. Contractual free software
+licenses can operate only to diminish these rights.  Choice of law
+clauses also raise complex questions of interpretation when works of
+software are created by combination and extension.  There is also the
+real danger that a choice of law clause will specify a jurisdiction
+that is hostile to free software principles.
+
+% FIXME: reword into tutorial, \ref to section 7.
+
+Our revised version of section 7 makes explicit our view that the
+inclusion of a choice of law clause by a licensee is the imposition of
+an additional requirement in violation of the GPL.  Moreover, if a
+program author or copyright holder purports to supplement the GPL with
+a choice of law clause, section 7 now permits any licensee to remove
+that clause.
+
 %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
 \chapter{The Lesser GPL}