GPL 3.0 Draft Tackles Patents, Compatibility

By Peter Galli  |  Posted 2006-01-16

GPL 3.0 Draft Tackles Patents, Compatibility

CAMBRIDGE, Mass.—The first discussion draft of the GNU General Public License was finally released on Monday, and addresses the issues of patents and patent-related retaliation, as well as its compatibility with other licenses.

Richard Stallman, the founder of the Free Software Foundation and author of the original license, was the first to take the floor here at the First International Conference on GPLv3 at MIT (the Massachusetts Institute of Technology), to express his vision for the new license.

Speaking to several hundred attendees, Stallman said, "The world has sprung nasty threats on the community and so the license needed to be updated. This need was realized four years ago when some discussions took place about a new license."

Click here for the full text of the first draft of GPL 3.0.

The biggest changes to the license were in the area of license compatibility, removing the obstacles that prevented it from being combined with code from other free software packages.

"We have now put in provisions to extend the number of licenses and code compatible with the GPL. We think this will benefit our community," Stallman said.

This seems to address the hopes of open-source software advocates, many of whom were hoping that effective provisions for software patents, as well as GPL compatibility with other licenses, would be prominent in the draft.

The other biggest changes to the license were regarding the issue of DRM (Digital Rights Management), which was seen as denying users the freedom to control the software they had.

"DRM is a malicious feature and can never be tolerated, as DRM is fundamentally based on activities that cannot be done with free software. That is its goal and it is in direct opposition to ours. But, with the new GPL, we can now prevent our software from being perverted or corrupted," he said.

A patent license grant has now also been included, as well as a narrow kind of patent retaliation clause. "If person A makes a modified version of a GPL-covered program and then gets a patent on that and says if anyone else makes such a modified version, they will be sued, he then loses the right to make any modifications, meaning he cant commercially use his software," Stallman said.

While the license does not require that the modified version be released, it does ensure that others would not be prevented from writing similar modifications under the license, he said.

An effort had also been made to use language that would prevent differences with international copy licenses, but these changes were so small as to be barely noticeable, Stallman said.

Eben Moglen, the general counsel for the FSF and the co-author of GPL 3.0, told the audience that the process had been "lonely and a little too secret" over the past few months, and that he preferred to be able to talk about it publicly.

Read Eben Moglens comments here about why the GPL 3.0 drafting process is not democratic.

"I have been working with Richard for 13 years, and it was after just a few months of first working with him that we started talking about what would follow GPL 2.0. We are now there," he said.

Next Page: Specific changes to the license.

Specific Changes to the


Some changes to the license include the following text, found in the draft document:

  • "To propagate a work means doing anything with it that requires permission under applicable copyright law, other than executing it on a computer or making private modifications;
  • Modified work must carry prominent notices stating that you changed the work and the date of any change;
  • The source code for a work means the preferred form of the work for making modifications to it. Object code means any non-source versions of a work. The propagation of covered works is permitted without limitation, provided it does not enable parties other than you to make or receive copies. Propagation which does enable them to do so is permitted as distribution;
  • As a free software license, this License intrinsically disfavored technical attempts to restrict users freedom to copy, modify, and share copyrighted works. Each of its provisions shall be interpreted in light of this specific declaration of the licensors intent;
  • Regardless of any other provision of this License, no permission is given to distribute covered works that illegally invade users privacy;
  • If you distribute a covered work knowingly relying on a patent license you must act to shield downstream users against the possible patent infringement claims from which your license protects you;
  • When you distribute a covered work, you grant a patent license to the recipient, and to anyone that receives any version of the work permitting, for any and all versions."

    Moglen also said that while he and Stallman were not "grand theorists of patent retaliation, we have been saying for 20 years that patents would be a terrible threat to software freedom, and I hope it is clear to all now that we were correct."

    GPL 3.0 in its current form would bring unlimited rights to use software under the GPL, but would also prevent anyone trying to use patents to stop others from making amendments.

    The distribution clauses have been only slightly modified and no changes have been made that would make any existing distribution fall outside the GPL, Moglen said. "No one must come to the conclusion they must fight to remain in the community if what they were doing was legal under the GPL 2.0 and nothing they were doing was restricting user rights in some sort of DRM-ish way," he said.

    The "copyleft" clause of the license has been modified for greater clarity. Copyleft is a method for making a program, and all its successive versions, free. "Anyone who has a copy of the binary is entitled to a copy of the source, no matter how they came upon it. Notices of copyright status and attribution have also been modified," he said.

    "GPL 2.0 was as strong a copyleft license as could be, and we have now added additional permissions, or exceptions, as they were known under GPL 2.0. GPL 3.0 formalizes that and has some additional rules," he said.

    The concept of unwritten permissions had caused a certain amount of grief and "was a provision we no longer wished to renew," Moglen said.

    In other changes, any permissive free software licenses that were not compatible with GPL 2.0 would now be compatible with GPL 3.0, he said. "For example, the patent requirements of the Eclipse License meet the requirements of this license as well as ASL, which are separated from GPL 2 by their patent retaliation terms. Were this draft discussion document the actual GPL 3.0 license, the Eclipse Public License would be compatible with it," Moglen said.

    Asked which free and open-source licenses would not be compatible with GPL 3.0, Stallman said the BSD Advertising clause was still not allowed, as going against the goals of the license.

    Moglen added that the goal was to take permissive licenses and to make them compatible with the GPL wherever possible, particularly where unintentional content had caused them to be incompatible.

    But there are still licenses with forms of patent retaliation that could be used in aggression, and those would still be incompatible with the GPL because the treatment of patent retaliation remained overly broad, he said.

    Next Page: Issues still on the table.

    Issues Still on the


    Stallman said they had tried to make sure that none of the added license requirements caused future legal issues or trouble for those with programs already running under GPL 2 and for GPL 3.0.

    "We have done our best, but if you see anything in a requirement added that could be problematic for things licensed under GPL 2 or later, please tell us about this, as we really need to fix them," he said.

    The GPL is also not a contract and people are not required to accept the license in order to receive a copy of the program, Moglen said.

    But, Stallman said, "That does not mean that we are in favor of, or against, copyright law. We are not defending the global copyright system imposed on the world. We use it simply because it is there and we are trying to do some good with it wherever we can."

    Another issue the community now needs to face head-on is how to prevent people from being deliberately endangered by risks that others with patents do not face, Moglen said.

    "In short, we need to face the issue of cross-licensing. The basic principle is that parties should act with recognition of the dangers that patents impose and demand that they act to constrain the harm that patents are doing to that community at large," he said.

    Doug Levin, the president and CEO of IP (intellectual property) tracker Black Duck Software Inc., said he welcomed the move to address DRM, licensing and patent issues. "The new draft addresses DRM in the context of complex legal, computing, cultural, business and societal problems," he said.

    Other issues addressed by the GPL 3.0 draft include IP licensing and patents, as well as the differences in copyright law between English-speaking countries, Western Europe and Asia. "These will have lawyers making a variety of nuanced arguments," Levin said.

    But he noted that GPL 3.0 would require greater software compliance management because of the rigorous distinction being drawn between source and object code, "as well as the need to document exceptions to GPL 3.0, which the license permits."

    Karen Copenhaver, the general counsel for Black Duck Software, said a primary issue to be vetted by the community during the GPL3 review process was whether the right to share and improve software licensed under the GPL extended to end users. "In other words, is a user of a Web-based application that is based on modified GPL-licensed code entitled to request and receive the source code for the application? This could be one of the great debates during this process," she said.

    In the conclusion of his 75-minute address, Moglen said that while some would argue that the license should be shorter—and he and Stallman shared that view—there was a year to try and fix that. "But the protection of freedom and free software is not an easy task or process. However, I am glad that this is all now your problem and no longer ours," he joked.

    Stallman also apologized for the difficulties involved in holding this event in the United States, and the difficulty involved for many in getting here. "We looked at the possibility of holding the event elsewhere, or holding parallel events, but this was not possible. So all we can do is apologize," he said.

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