FSF position on GPLv2 & current App Store terms

This was written by Brett smith on the VLC development mailing list. Brett is the Licensing Compliance Engineer with the Free Software Foundation: 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.

  1. 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.

  2. 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:”

    1. You may download and sync a Product for personal, noncommercial use on any device You own or control.
    2. 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.

  3. 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

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