[vlc-devel] FSF position on GPLv2 & current App Store terms

[Brett Smith]

Hello everyone,

salsaman asked me to come on this list and explain the FSF's position on
the current terms of service for Apple's App Store, and how those relate
to GPLv2.  There have been changes to the terms since our original blog
post on the topic.  I confirmed that the changes did not affect the
GPLv2 analysis before I blogged about Rémi's enforcement action, but
it's fair to ask me to show my work and I'm happy to do that here.

That's all I'm here to do: point out the facts and explain the FSF's
analysis.  If you all have questions about what I've written here, just
ask and I'll be happy to answer those too, publicly or privately.  I
only ask that you have a little patience when you're expecting a reply:
I'm several time zones behind most of you.

## I. The App Store Terms Apply to All Apps ##

The "ADDITIONAL APP STORE TERMS AND CONDITIONS" acknowledge early on
that apps that you download might come with their own license.
Specifically, it says:

        Your license to each App Store Product is subject to the
        Licensed Application End User License Agreement set forth below.
        You agree that the terms of the Licensed Application End User
        License Agreement will apply to each Apple Product and to each
        Third-Party Product that you license through the App Store
        Service, unless the App Store Product is covered by a valid end
        user license agreement entered into between you and the licensor
        of the App Store Product (the “Licensor”), in which case the
        Licensor’s end user license agreement will apply to that App
        Store Product.

The term "end user license agreement" is not defined in the document.
While we do believe that the term generally does not accurately describe
the GPL, we also believe that here Apple intended for the term here to
cover all kinds of licenses that could be applied to apps, simply
because there's nothing to indicate that they considered any of the
distinctions that we would make.  So to keep this discussion simple, for
the sake of argument, I'll assume for the rest of this e-mail that this
section *does* create exceptions for the GPL.

However, it's important to understand the limits of those exceptions.
Specifically: this section only means that the Licensed Application End
User License Agreement does not apply to GPLed software.  Other parts of
these terms, including the "APP STORE AND IBOOKSTORE TERMS AND
CONDITIONS" and "ADDITIONAL APP STORE TERMS AND CONDITIONS," are still
in force when Apple distributes GPLed software to its customers.
Anything in those terms that conflict with the conditions of the GPL
will be problematic.

## II. The App Store Terms Impose Strict Usage Rules on All Software ##

Under the heading "USE OF PRODUCTS AND THE SERVICES," the "APP STORE AND
IBOOKSTORE TERMS AND CONDITIONS" say:

        You agree that the Services and certain Products include
        security technology that limits your use of Products and that,
        whether or not Products are limited by security technology, you
        shall use Products in compliance with the applicable usage rules
        established by Apple and its principals (“Usage Rules”), and
        that any other use of the Products may constitute a copyright
        infringement.
        
The "Products" here are apps that you download from the App Store.  The
terms here are unconditional: you are *only* allowed to use the app
according to the Usage Rules laid out the in terms, no matter what the
license of that app is, or whether or not it has technological DRM
measures imposed upon it.

Because this term is written this way, the only way that it could be
unproblematic with the GPL is if the Usage Rules *explicitly* grant you
permission to do at least all of the activities that the GPL allows.
Unfortunately, that's not the case.  These Usage Rules appear under "APP
STORE PRODUCT USAGE RULES" in the "ADDITIONAL APP STORE TERMS OF
SERVICE:"

        (i) You may download and sync a Product for personal,
        noncommercial use on any device You own or control.
        
        (iv) You shall be able to store App Store Products on five
        iTunes-authorized devices at any time.

I've omitted some of the Usage Rules that are not pertinent to this
discussion.
These rules do not grant you permission to use the software
commercially, distribute it beyond "five iTunes-authorized devices," or
modify the software in any way.  And remember: the paragraph I quoted
earlier makes clear that Apple *only* allows you to do the activities in
the list of Usage Rules.  If an activity does not appear in this list,
you're not allowed to do it at all.

## III. The GPL Prohibits These Restrictions ##

Section 6 of GPLv2 says:

        Each time you redistribute the Program (or any work based on the
        Program), the recipient automatically receives a license from
        the original licensor to copy, distribute or modify the Program
        subject to these terms and conditions. You may not impose any
        further restrictions on the recipients' exercise of the rights
        granted herein.
        
When the App Store terms prohibit commercial use, general distribution,
and modification, these are exactly the kinds of "further restrictions"
that are not allowed thanks to the last sentence here.

This is a crucial part of the GPL's copyleft.  Without this section, it
would be trivially easy to keep freedom away from users by putting
additional requirements in a separate legal agreement, like Terms of
Service or an NDA.  
Section 6 is not legal minutia: if you take it away, the license would
completely fail to work as designed at all.

Some people have argued that, because section 0 says "Activities other
than copying, distribution and modification are not covered by this
License; they are outside its scope," Apple is not prohibited from
imposing restrictions on the software's use.  This is not true, and is
based on a misunderstanding of how activities "outside its scope" relate
to section 6.  The license places *no* conditions on activities "outside
its scope."  In fact, the very next sentence in section 0 confirms this;
it says: "The act of running the Program is not restricted...."  Thus,
section 6 is properly understood to mean that no external conditions can
be placed on those activities, either.

To summarize:

* The App Store terms apply to GPLed software in the App Store.

* Those terms force strict Usage Rules on customers that prohibit many
activities that are allowed under the GPL.

* Those restrictions are not allowed under GPLv2 section 6.

Again, if any of you have any questions, I'll be happy to answer them.

Best regards,

-- 
Brett Smith
Licensing Compliance Engineer, Free Software Foundation