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To read comments to this article, go here
GPLv3 Draft Today and a New Legal Resource - Update: it's released
Wednesday, March 28 2007 @ 07:57 AM EDT

I do expect the draft of the GPLv3 today. Naturally, I'll let you know the second I know.

[Update: The third discussion draft of GPLv3 has been published by the Free Software Foundation. The new draft and its accompanying rationale document [PDF] are available at http://gplv3.fsf.org/ and there are other GPL resources on Groklaw's GPL page. So the discussion begins. There is also a press release, highlighting the changes, and I'll put it at the end of this article. Note that this is a draft, which will be discussed for 60 days and then there will be a final draft after that.]

Meanwhile, for those who think GPLv2 is silent about patents, here's an article by two attorneys at Fenwick & West on the tantalizing topic, "Potential Defenses of Implied Patent License Under the GPL" [PDF].

GPLv2 restricts patents?? Yup. The attorneys, Adam Pugh and Laura A. Majerus, thought it was useful, indeed necessary, to try to figure out what GPL-protected folks could do if accused of patent infringement. So they wrote an article about the hypothetical situation where an entity releases software under the GPL and then tries to sue a recipient for patent infringement.

There indeed *is* an implied patent license in GPLv2, which will be make explicit in GPLv3, and that is why the article addresses the issue:

The previous issue of this Bulletin ... included an introductory article, which discussed whether open source and patent rights can coexist. In general, patent rights may be substantially limited due to an implied license when the target infringing activity is cover by the GPL.

They wrote that about GPLv2. So if you think no one should use a software license to address patents, the GPL already does, my friends. So please don't waste my time placing that thought in a comment on the draft. Read this article instead. That's why the Novell-Microsoft patent deal sticks in the community's craw, and why I personally doubt it is harmonious with GPLv2. I think that Eben Moglen just found an easier way to block it than through litigation. If you've followed the SCO Magical Mystery Tour, where after four years, we still don't know what it's actually about, you may be able to figure out why it could be easier and cheaper to just fix the license to make things crystal clear.

The article discusses four doctrines of implied license, legal estoppel, equitable estoppel, conduct and acquiescence. Regarding the first, legal estoppel, which just means you can't grant a legal right and then snatch it away, the article says:

In the hypothetical case above, the accused infringer has an argument that the elements of legal estoppel are met. Through the GPL, the patentee has granted the accused infringer the right to make and distribute the invention. While usage rights may not be explicitly granted under the GPL, it can be argued they are necessary to effectively practice the rights that have been granted. Both the right to practice the invention (through the GPL) and an attempt to derogate that right (by claiming the licensee has no right to use the licensed invention) are present.

Satisfying the legal estoppel theory also requires showing that the licensor received valuable consideration for the license. One possible item of consideration received under the GPL is the reciprocity agreement -- the promise by the licensee to license any further distribution of the program and any works based on it under the terms of the GPL. In Wang, the proliferation of the plaintiff's technology and adoption of it as an industry standard were enough to form consideration under legal estoppel. The licensee may be able to argue that the benefits any licensor receives from agreeing to comploy with the licensee form sufficient valuable consideration to imply a license by legal estoppel.

Let's imagine, for a moment, that Novell, instead of being a GPL bumbler, turned out to be a Ninja. Then the fact that Microsoft was persuaded to distribute vouchers for SUSE, which is distributed under the GPL, might be a way to tie their hands. It could be argued, as I understand the article to be indicating, that you could argue that Microsoft can't help distribute SUSE and then sue over folks using it. N'est-ce pas? And that would be entirely separate from any patent peace nonsense. And Novell helping Microsoft make Open XML a standard might, in Ninja land, be a way to force it to lose its patent rights.

However, you'll note the article repeatedly says that these are possible defenses, that it *might* work to plead so and so. GPLv2 is only an implied license. GPLv3 will be explicit.

I found all this in a wonderful new resource, Litilaw, which publishes free legal articles on a broad range of topics. I found this particular article on the list on their Intellectual Property page. If you are a lawyer, you can add your article to their collection, by the way, of "hundreds of recently published articles of interest to litigators and related legal professionals. All articles are full-text, written by lawyers and have been published as part of continuing legal education (CLE) seminars, in legal journals, or are of similar quality." Enjoy!

And, yes, I was only kidding about what you can say. You can express your thoughts about GPLv3 here, by all means. But I do want you to know the reality, which is that there is indeed an implied patent license in GPLv2.

Update: Novell's position.

Update: Here's the FSF press release, which explains the draft process going forward and highlights changes in this draft:

********************************

BOSTON, Massachusetts, USA---Wednesday, March 28, 2007---The Free Software Foundation (FSF) today released the third discussion draft for version 3 of the most widely used free software license, the GNU General Public License (GNU GPL).

Today's draft incorporates the feedback received from the general public, official discussion committees, and two international conferences held in India and Japan. Many significant changes have been made since the previous draft, released in July 2006. In recognition of this fact, the FSF now plans to publish one additional draft before the final text of GPL version 3.

Changes in this draft include:

* First-time violators can have their license automatically restored if they remedy the problem within thirty days.

* License compatibility terms have been simplified, with the goal of making them easier to understand and administer.

* Manufacturers who include the software in consumer products must also provide installation information for the software along with the source. This change provides more narrow focus for requirements that were proposed in previous drafts.

* New patent requirements have been added to prevent distributors from colluding with patent holders to provide discriminatory protection from patents.

Richard Stallman, president of the FSF and principal author of the GNU GPL, said, "The GPL was designed to ensure that all users of a program receive the four essential freedoms which define free software. These freedoms allow you to run the program as you see fit, study and adapt it for your own purposes, redistribute copies to help your neighbor, and release your improvements to the public. The recent patent agreement between Microsoft and Novell aims to undermine these freedoms. In this draft we have worked hard to prevent such deals from making a mockery of free software."

Today's draft will be open for discussion for sixty days. The FSF will solicit input in a wide array of public venues and make changes as needed in response. After this period, it will release a "last call" draft, followed by another thirty days for discussion before the FSF's board of directors approves the final text of GPL version 3.

More information about this draft is available at http://gplv3.fsf.org, including the full text, detailed explanations of the latest changes, and new plans for finalizing the license. As with the previous drafts, the FSF encourages community members to provide feedback on the new draft at this site.

About the GNU General Public License (GNU GPL)

The GNU GPL is the most widely used free software license worldwide: almost three quarters of all free software packages are distributed under this license. It is not, however, the only free software license.

Richard Stallman wrote the version 1 and 2 of the GNU GPL with legal advice from Perkins, Smith & Cohen. Version 1 was released in 1989, and version 2 in 1991. Since 1991, free software use has increased tremendously, and computing practices have changed, introducing new opportunities and new threats. In 2005, Stallman began revising the GPL for version 3. In January 2006, the FSF began a systematic process of public review and feedback, with legal advice and organizational support from the Software Freedom Law Center.

About the GNU Operating System and Linux

Richard Stallman announced in September 1983 the plan to develop a free software Unix-like operating system called GNU. GNU is the only operating system developed specifically for the sake of users' freedom. See http://www.gnu.org/gnu/the-gnu-project.html.

In 1992, the essential components of GNU were complete, except for one, the kernel. When in 1992 the kernel Linux was re-released under the GNU GPL, making it free software, the combination of GNU and Linux formed a complete free operating system, which made it possible for the first time to run a PC without non-free software. This combination is the GNU/Linux system. For more explanation, see http://www.gnu.org/gnu/gnu-linux-faq.html.

The GNU components in the GNU system will be released under GPL version 3, once it is finalized. The licensing of Linux will be decided by the developers of Linux. If they decide to stay with GPL version 2, then the GNU/Linux system will contain GNU packages using GNU GPL version 3, alongside Linux under GNU GPL version 2. Many other packages with various licenses make up the full GNU/Linux system.

About Free Software and Open Source

The free software movement's goal is freedom for computer users. Some, especially corporations, advocate a different viewpoint, known as "open source", which cites only practical goals such as making software powerful and reliable, focuses on development models, and avoids discussion of ethics and freedom. These two viewpoints are different at the deepest level. For more explanation, see http://www.gnu.org/philosophy/open-source-misses-the-point.html

The GNU GPL is used by developers with various views, but it was written to serve the ethical goals of the free software movement. Says Stallman, "The GNU GPL makes sense in terms of its purpose: freedom and social solidarity. Trying to understand it in terms of the goals and values of open source is like trying understand a CD drive's retractable drawer as a cupholder. You can use it for that, but that is not what it was designed for."

About The Free Software Foundation

The Free Software Foundation, founded in 1985, is dedicated to promoting computer users' right to use, study, copy, modify, and redistribute computer programs. The FSF promotes the development and use of free (as in freedom) software---particularly the GNU operating system and its GNU/Linux variants---and free documentation for free software. The FSF also helps to spread awareness of the ethical and political issues of freedom in the use of software. Its Web site, located at www.fsf.org, is an important source of information about GNU/Linux. Donations to support the FSF's work can be made at http://donate.fsf.org. Its headquarters are in Boston, MA, USA.


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