Lawyers Express GPL 3 Concerns

Not everyone is happy with the first draft of the GPL 3 open-source license.

The first draft of the new GPL is out and lawyers are beginning to form their impressions of this open-source license.

This first look at the GPL (General Public License) 3 came at the First International Conference on GPLv3 at the Massachusetts Institute of Technology.

This new revision of this seminal license tackles the issues of license compatibility, software patents and DRM (Digital Rights Management).

While the Free Software Foundations "goal is for the GPLv3 public discussion process to be as transparent and accessible as possible," there will still be long debates on how the GPL should address IP (intellectual property) issues.

Patents, for example, have become a live wire issue for both open-source and proprietary software vendors.

Heather J. Meeker, an IP attorney and shareholder in the Silicon Valley office of the Greenberg Traurig LLP law firm, said, "It is not surprising that some of the most significant changes in the new version of the GNU GPL relate to patent law."

/zimages/1/28571.gifFree Software Foundation explains GPL 3.0 vision. Click here to read more.

"Many members of the free software movement have taken strong public positions against software patents. Mr. Stallman [founder of the Free Software Foundation Richard Stallman] has long been clear about his views on this issue," said Meeker.

However Meeker contends that, "the question of whether software patents are a serious threat to free software remains controversial. Some argue that software patents do not discourage innovation; some argue that they do.

"Many in the business community take the view that the quality of software patents needs to be improved—a mend it, dont end it approach."

That said, "Dealing with patents more explicitly in this version of the GPL is a step in the right direction. Regardless of ones view of software patents, clarity in the license serves every constituency," Meeker said.

After all, "the free software community and the software industry both benefit when they better understand the patent terms of the license, and can make reasoned decisions about using GPL code, or applying GPL code to their projects.

"Prior versions of the license did not contain an explicit patent license grant or explicit terms about reversion of rights in the event of patent suits—and such terms are common in other open-source software licenses such as the Mozilla Public License, CPL (Common Public License), and CDDL (Common Development and Distribution License)," said Meeker.

Michael R. Graham, an IP attorney and partner with Marshall, Gerstein & Borun LLP, an IP specialty firm based in Chicago, has other concerns about the GPL.

"I note that Mr. Stallmans comments suggest that the GPL3 may in fact limit the desirability of utilizing open-source software in the commercial environment.

"This could force software developers and companies to commit themselves solely to either the open-source or proprietary rights model for software rights ownership," said Graham.

/zimages/1/28571.gifGPL 3.0 draft tackles patents, compatibility. Click here to read more.

This, however, doesnt seem to fit with such FSF statements as Section 7 of the GPL 3 draft which "explicitly allows added parts covered by terms with additional permissions to be combined with GPLd code" according to the GPL 3 Rationale Document.

Graham went on to say, "Both models offer benefits to different types of software and software development, and their interaction has led to some important developments in software utilizing both models [for example MySQL]."

Graham continued: "GPL3 is being presented as a line drawn in the sand between the two models and, as such, may be more likely to limit the development of open source rather than expand it.

"The bottom line is that legal practitioners, software developers and technology users need to review the GPL3 carefully and share their observations candidly. This is not a working copy, according to Mr. Stallman; this is the Agreement absent serious flaws," said Graham.

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