Author: Bruce Byfield
The FDL was first released in March 2000, with additional revisions in November 2002. Specifically designed as a license for content rather than software, the FDL covers such types of copying, distribution, and modification as anthologies, mass production, and translation. In order to do so, the FDL makes several distinctions that are irrelevant to software:
- Copies can be either transparent (made using free formats such as HTML for text or PNG for graphics) or opaque (made using proprietary formats, such as Microsoft Word or PhotoShop). The text favors transparent copies, but allowing opaque ones is designed to make the license more attractive to professional publishers.
- Sections of a document can be specified as invariant — that is, designated as unchangeable while copying. To prevent them from being used to undermine the intent of the license, invariant sections must contain only secondary material, such as publishing history.
- Mass opaque copies — more than 100 — have additional requirements, including accompanying each opaque copy with a transparent copy.
While many have accepted the FDL, most notably the Wikipedia Foundation, others have criticized it as not being free enough and have accepted it only tentatively. For example, the Debian distribution voted in March 2006 to include only FDL-licensed works with no invariant sections. Others preferred the clarity and options of the Creative Commons License. Many hoped that the next revision of the license would it more generally acceptable.
Language changes
As with the discussion drafts of the GPL, the increased clarity and simplicity of the language in the new FDL is noticeable immediately. The preamble, for example, now draws an explicit parallel with the FSF’s free software license by providing a modified version of the famous four freedoms. In addition, despite the license’s name, it is now specifically defined as intended for “any work of authorship meant for human appreciation, rather than machine execution,” including music and fiction. The preamble warns that “the only kind of work for which this should not be used is software.” Besides making the license more accessible to non-lawyers, this language implies that the FDL should be viewed as an alternative to the Creative Commons License, while explaining its relation to the other free licenses developed by the FSF and discouraging the still widespread use of the GPL for non-programs.
Another change that mirrors those in the GPL drafts is the change of language to make the license easier to apply in different legal jurisdictions. The most obvious of these changes is the dropping of the term “distribution” in favor of “propagate” and “convey.” To further minimize confusion, these changes are defined in the second section of the document, along with other terms specific to the language, such as “transparent” and “opaque.”
The existing version of the FDL makes no mention of audio or video works. Changes throughout the draft correct this omission. Besides the change in the preamble to expand the applicability of the license beyond documentation, the draft now mentions sound and video among the media that may be used by transparent copies, and cites MPEG2 and Ogg Theora as transparent video formats.
The Fair Use definition
Fair use is a basic concept of any copyright law. It defines how a copyrighted work may used in such works as a scholarly paper, a review, or a parody without asking for the creator’s position. Fair use is often a matter of practise, rather than specifications, so the fact that the current FDL does not mention it is unsurprising.
By contrast, in the Excerpts section, the draft specifically defines fair use as 12 “normal” pages or 20,000 characters — excluding markup such as HTML tags — of text, or one minute of audio or video. No precise definition of “normal” is given. Depending on the country, it could mean either US letter or A4 format, but these are not exact equivalents, and a clearer definition is needed.
Similarly, the size of the excerpts allowed seem questionable. The provisions for text seem overly generous, considering that many works are less than 12 pages. Moreover, given that script writers generally assume that one letter-sized page equals one minute of screen time in screenplays, the audio format, at least, should be 12 minutes to make it the equivalent of the allowable text excerpts.
Introducing the SFDL
By far the largest change in this license area is the creation of the SFDL. As the name implies, this is a shorter version of the FDL, but, in this draft, the exact relationship between the two is still somewhat uncertain. Like the FDL, the SFDL’s preamble suggests that it is not meant merely for documentation, but then goes on to say that “We recommend this License principally for works whose purpose is instruction or reference.” Furthermore, the license adds that “Free manuals are essential for free software” and urges people to encourage the use of the SFDL among publishers and software developers.
Another uncertainty is just how the SFDL differs from its parent, except in its less specific language. The home page for the drafts describes the SFDL as having “no requirements to maintain Cover Texts and Invariant Sections. This will provide a simpler licensing option for authors who do not wish to use these features in the GNU FDL.” Yet the Modifications section of the SFDL, which seems identical to that of the FDL, lists requirements to maintain these parts of a document unchanged.
No doubt, though, such changes reflect the early stage of the license. Presumably, later versions will make the distinction between the two licenses clearer.
Provisional verdict
The home page for the FDL includes links to wikis where the public can comment on both the FDL and SFDL. However, right now, the available comments are too few for anyone to infer how the drafts are being received. Nor are there sufficient comments on the debian-legal list, where some of the earliest reactions can be expected.
All the same, from a preliminary reading, it seems unlikely that the new draft will answer all the objections to the existing one. For instance, the new draft’s language about lock-down technologies does seem to answer the objection of Debian developers that the language is so vague that it could apply to encryption or restrictive file permissions, but it does not address Debian’s other two main objections — the requirement that opaque copies be accompanied by transparent copies, and the continued use of the concept of invariant sections. Unless future drafts address these issues, acceptance of the FDL may be only partially advanced by the new version.
Nor, despite its improvements in language, does the draft succeed in making the FDL a rival for the Creative Commons License. The brevity of the Creative Commons License, as well as its division into conditions that users can pick and choose, still make it far more accessible than the FDL.
True, the draft is an improvement over the existing license in several ways, and its attempt to define fair use may by a first for licenses. Yet unless future drafts include greater changes, the GNU Free Documentation License seems doomed to the same uphill battle for acceptance as the current draft of the new GPL.
Bruce Byfield is a course designer and instructor, and a computer journalist who writes regularly for NewsForge, Linux.com and IT Manager’s Journal.
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