Open source expert speaks out on GPLv3

If you’re following the GPLv3 draft process (previous coverage) here’s an extremely informative post by Mark Radcliffe. From the post:

Mark Radcliffe joins us this week to give his expert opinion on the latest draft of GPLv3. Mark is a friend and one of the industry’s premier IP attorneys, especially with open source licensing questions. He is outside counsel for the OSI and chairs Committee C in the GPLv3 drafting process.

In other words, he knows his stuff.

Dave and I invited Mark to contribute to Open Sources on GPLv3. Here’s his response:

The most recent draft of the GPLv3 was released on Wednesday, March 28. This guest blog will summarize the legal issues in the draft and some of the open issues. I have been involved in the process since the beginning because I am the chair of Committee C, the Users Committee, and I serve as outside general counsel on a pro bono basis for the Open Source Initiative. These comments are mine alone and do not represent the views of any of my clients.

The draft is part of a year long process of preparing the first new version of the GPL in fifteen years. The existing version of the General Public License (“GPLv2”) is, by far, the most widely used open source license: more than 70% of open source projects on SourceForge are licensed under GPLv2. GPLv2 is used by many well known programs such as the MySQL database and the Linux operating system.

He then goes on to detail, at a high level, the changes that have been made in this draft. He also explains what the rest of the draft process will look like.


GPLv3, Microsoft/Novell language

A quick follow up to this post, Allison Randal has posted a good piece of some of the GPL modifications over at the O’Reilly Radar. From the post:

The core of the added language is:

You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a patent license (a) in connection with copies of the covered work conveyed by you, and/or copies made from those, or (b) primarily for and in connection with specific products or compilations that contain the covered work, which license does not cover, prohibits the exercise of, or is conditioned on the non-exercise of any of the rights that are specifically granted to recipients of the covered work under this License.

Translating that into plain English, it says: If you distribute GPLd software and make a deal with another company who also distributes (some kind of) software, we will stop you from distributing the GPLd software if:
a) you pay the other company
b) the deal mentions the GPLd software
c) you get a patent license
d) the patent license mentions the GPLd software
e) the patent license has more limited terms than the GPL license on the software

She then goes through some of her objections with the terms. The part that I most agree with and have covered before is:

My fourth objection is embodied in the old adage “When all you have is a hammer, everything looks like a nail.” The FSF had success in the past accomplishing one goal with a license, so now they’re trying to accomplish a broad range of goals using the same tool. But a license really isn’t the best tool to accomplish some of these goals. Particularly, it’s not a good tool for attempting to abolish software patents or prevent companies from making patent agreements.

A license is simply not the place for every battle. That being said, it’s very good to see things moving in the right direction. The FSF seems to be taking feedback very seriously and this draft has been received much better than previous ones. I’m hopeful that when the final draft hits, most items will have been ironed out.


Torvalds 'pretty pleased' about new GPL 3 draft

The 3rd draft of the GPLv3 has been released, and it’s great to see that Linus is “pretty pleased” with it. Despite what same are saying, I think that Linus’ opinion on this matters quite a bit. He started one of the most successful GPL projects ever. Him rejecting the GPLv3 has the potential to create a huge fissure in the GPL landscape. From the article:

“I’m actually pretty pleased. Not because I think it’s perfect, but simply because I think it’s certainly a lot better than I really expected from the previous drafts,” he said. “Whether it’s actually a better license than the GPLv2, I’m still a bit skeptical, but at least it’s now ‘I’m skeptical’ rather than ‘Hell no!'”

In particular, one provision against digital rights management has been narrowed, and another that Torvalds feared could lead to multiple incompatible versions of the GPL has been removed or defanged.

“I’m much happier with many parts of it. I think much of it reads better, and some of the worst horrors have been removed entirely,” Torvalds said.

Torvalds was noncommittal about whether he might try to move the Linux kernel to GPL 3–a change that would require the permission not just of Torvalds but also of all other Linux kernel copyright holders. But he didn’t rule it out.

“The current draft makes me think it’s at least a possibility in theory, but whether it’s practical and worth it is a totally different thing,” he said. “Practically speaking, it would involve a lot of work to make sure everything relevant is GPLv3-compatible even if we decided that the GPL 3 is OK.”

I’ve not had a chance to look through the new draft thoroughly, but I’m not a lawyer anyway and my opinion on the subject hardly matters. The FSF had previously intimated that this new draft would prevent deals like the recent Novell Microsoft patent covenant. For it’s part, Novell seems to think this is not the case. From a Novell blog post:

Here’s Novell’s position on the new draft:

We will continue to distribute Linux. Nothing in this new draft of GPL3 inhibits Novell’s ability to include GPL3 technologies in SUSE Linux Enterprise, openSUSE, and other Novell open source offerings, now and in the future. This is good news for our customers.
We are firmly committed to continuing the partnership with Microsoft and, as we always have, fully complying with the terms of the licenses for the software that we ship, including software licensed under GPL3. If the final version of the GPL3 does potentially impact the agreement we have with Microsoft, we’ll address that with Microsoft.

A cursory glance would seem in indicate that the following clause is the addition made by the FSF:
Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor’s essential patent claims in its contribution, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contribution.

I don’t know enough about legalese to suss out whether that would actually invalidate the MSFT-NOVL agreement, however it is extremely encouraging to see that things are heading in the right direction.