The Sneaky Weasel Theory
Simon Phipps posted an interesting response to my write-up of the GPLv3 conference. I said that the current draft of the new license appears to take no explicit action to eliminate the ASP loophole. Simon disagreed:
[A]s I have looked at it more and more, I believe Eben and Richard have been far more subtle. A crude and explicit ASP clawback would have raised a riot. Instead, the seeds are sowed in section 5c ... and even more in section 1.
It's important to look as carefully as Simon is doing at the language, and to consider ways in which users, lawyers and the courts might interpret it. Nevertheless, I think Simon is wrong.
The language in 5(c) is simply that the program display notices via some convenient mechanism. That's common in licenses, and the provision is present in the current version of the GPL, in section 2(c). There's nothing new here. Section 1 does introduce some new language, but I don't think it's intended to cover Web interfaces -- rather, it's intended to resolve the long-standing debate on what "linking" means in the GPLv2.
So on the face of it, I believe those sections do important work, but not any work on the ASP loophole.
More fundamentally, I don't believe that the FSF intends to use subtlety and guile to get important changes into this draft. I've certainly seen legal documents that do this; they are usually drafted by sneaky weasels who want to use words to conceal their intent when they are making an agreement. The question is, could the FSF possibly be sneaky weasels in drafting v3?
I believe that the answer is no. The review and comment process is intended to create a large corpus that explains clearly the intent of the drafters. That way, if there are questions as to meaning later, developers, lawyers and the courts can examine the literature and find out what particular words in the language mean.
This comment period will go on for about a year. Simon raises an interesting question; does the FSF intend sections 1 and 5(c) to require ASPs to release their code? There's clear language in 7(c) and a statement from the podium that deals with the point. I expect that the discussion and commentary will make clear that 1 and 5c are aimed elsewhere.
Fundamentally, this process will be too public, discussions will be too open, and the review will be too painstaking to support sneaky weasel behavior. Eben, Richard and the rest of the FSF are smart people. Being a sneaky weasel in this instance just wouldn't work.
We can take the language at face value.