Open-Source GPL Rewrite on Fast Track?

The next edition of the most popular open-source software license, the GPL, may show up sooner than expected and will cover patents, says primary author Eben Moglen.

NEW YORK—Seeking to relieve patent licensing worries by the open-source community, industry heavyweights here at the LinuxWorld Conference & Expo said a revised version of the GPL could arrive sooner than many had expected.

At a LinuxWorld panel, Eben Moglen, the legal counsel for the Free Software Foundation, said that the first public draft of the GNU General Public License 3 will be available for comment shortly.

"It wont be long before the first public draft of the GPL 3 will be out, and it will include clauses on how to conduct patent defense," he said.

The GPL is the most widely used free software license.

Moglen estimated that 65 percent to 70 percent of all open-source projects were licensed under the GPL, which had its last major update in 1991.

Since then, change in the software industry—such as the rise of the importance of software patent issues and questions about how the GPL handles derivate works—has made an update necessary.

Click here to read more about how changes in business models are changing open source.

Part of the push behind a revised GPL, many LinuxWorld attendees suggested, is not to create simply another license, but to create a better GPL that can garner popular support and solve the most glaring problems found with the current version.

Resource Library:

The GPLs language must be cleaned up, according to Daniel Egger, chairman of Open Source Risk Management, which offers open-source risk management products, services and insurance.

"The GPL uses various terms that describe when you should, and should not, license software based on GPL software under the GPL," he said.

However, he pointed to uncertainties: "Should a work that only uses hooks to GPL software also be licensed under the GPL? A program that is only loaded at run time?"

"Because the language is different, its not always clear," Egger said to the panel and gathering of attendees.

The position of the Free Software Foundation is that the language should mean a "derivative work," the legal term for a work that is based on (or derived from) one or more already existing works, but is nevertheless copyrightable.

Egger, though, wants Version 3 of the GPL to be more explicit on this point.

However, the hot-button issue with the GPL for LinuxWorld attendees concerned patents.

Steven Henry, an IP (intellectual property) attorney with the Boston-based IP specialist law firm Wolf Greenfield & Sachs PC, said that dealing with patent issues will be critical for the new GPL.

Patent and the "proprietary rights [that go with them] are the elephant in the room," Henry said. "Proprietary right issues must be dealt with if open source is to survive."

Egger agreed. "Conflict between patents and Linux is inevitable because of the GPLs liberty or death provision about patents, which forbids GPL users from putting patent license restrictions on downstream distributes and because [with the popularity of GPL software] theres too much money at stake."

"Companies arent going to throw away their patent rights. They want to gain something," Henry said.

As one author of the GPL, Moglen responded that software freedom is its own reward, because it creates better and cheaper software. He said Version 3 will include clauses on how to conduct patent defense.

Still, Moglen said that this revision wont come easily. "Its a very contentious topic. Everyone wants to be safe, but no one is sure what the best defense."

MySQL co-founders say the notion of patents should be canned altogether. To read more, click here.

Besides, the best defense cant be in the license, Moglen continued. The best defense, he said, is when vendors such as IBM and Nokia Corp.—holders of significant patent inventories—say, "Well not use these against free software," and instead use patents to help open source.

IBM plans on doing that, according to Adam Jollins, chief Linux strategist for the IBM Software Group.

"You can expect us to do more than we have done so far to increase communications with the community including the area of patents," Jollins said.

"IBM is looking for collaboration with other companies and the open-source community. [Ideally,] we want other people to pledge patents."

One option that the FSF is considering, Moglen said, will make it necessary for companies that distribute GPL software to pledge that theyre also explicitly giving the right to use the patents found in their code.

Under U.S. copyright law, there is an implicit right that lets users employ patents in this way. That right is not explicit, however, and it covers only U.S. customers.

Exactly how this option will be deployed hasnt been decided yet, and Moglen said that the issue will be very controversial. But in the end, he said, freedom of information will be more important and valuable for both developers and businesses than keeping information locked away in patent vaults.

Editors Note: Peter Galli, eWEEK, provided additional reporting for this story.

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