New GPL Will Contain Patent Protection

The details on how the GPL will deal with patents, however, are still far from clear.

Contrary to recent reports that the next version of the GPL would include penalties against those who patent software or use anti-piracy technology, no such decisions have actually been made.

According to FSF (Free Software Foundation) Europe president Georg Greve, "It appears that the journalist at Reuters was somewhat confused in terms of separating speculation and fact, so he ended up publishing speculation as fact and largely ignoring the facts."

Specifically, the new GNU GPL (General Public License) may contain a patent retaliation clause.

"These are things that are being tossed around, but whether, how and in what form it will take place, we dont know," said Greve.

Whats far more important, according to Greve, is that "for the first time in human history, such a license will be discussed in a globally moderated process."

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"So everyone with a stake in GPL 3 will be able to give their input, to be heard—and that means about anyone these days."

That said, how the GPL should deal with patents will be a major, and contentious, part of creating a new license.

Eben Moglen, general counsel for the FSF, who is authoring the new license with Richard M. Stallman, its creator, said in November that talks will center on the use of copyrights to retaliate against patent law.

"We perceive some difficulty and enormous complexity in the fact that the GPL is a worldwide license and the global law of patents is not uniform."

Still, patent issues must be dealt with in the next GPL.

Other open-source licenses already do, noted Larry Rosen, founding partner of a partner in the law firm Rosenlaw & Einschlag and author of "Open-Source Licensing: Software Freedom and Intellectual Property Law."

"Im pleased that FSF is going to add patent defense to its new GPL 3. Many other open-source licenses have such provisions already," said Rosen.

Jason M. Schultz, staff attorney for the Electronic Frontier Foundation, agrees that the GPL needs patent protection language.

"Id love to see some opportunity to give open-source software makers the power to protect themselves against unwarranted patent attacks. If this addition to the GPL helps, Im all for it," said Schultz.

"Id have to see the language, though, to know how effective it will be," Schultz said.

Exactly how the new GPL will deal with patents remains an issue.

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