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GPL Patent Rule Pending


License might limit infringement lawsuits

By Alex Handy
June 1, 2006 — 
A provision regarding patent protection in a draft of the upcoming revision to the GNU General Public License has concerned corporate patent holders, who are worried that the new license will limit their ability to protect their software patents.

Of particular interest is a section of GPL 3 that dictates the protocol for patent litigation retaliation.

Under the current draft (gplv3.fsf.org/draft), if a company or individual modifies a GPL program, then enforces a software patent to prevent others from modifying the program in the same way, the litigious party initiating the lawsuit will lose all rights to use the GPL code in question.

Eben Moglen, president and executive director of the Software Freedom Law Center, said that the Free Software Foundation does not find patent retaliation clauses to be effective, and has therefore included only one clause for retaliation in the GPL draft. “Now that everyone knows that software patents are crappy,” said Moglen, “the FSF has not lost any of its enthusiasm” for its fight against patents. “It’s just that the foundation believes that patent retaliation clauses in [other open-source] licenses lead people to believe they’ve done more about the problem than they [actually] have.”

Diane Peters, who is discussing the changes to the GPL with large corporations in her capacity as general counsel for the Open Source Development Labs (OSDL), said that she expects the Free Software Foundation to address during the initial comment period many of the concerns raised by these companies with sizable patent portfolios.

“If I sue someone with a patent based on GPL v3 software, I have to choose between suing or running that GPL v3 software. It’s the first time FSF has ever reached in and controlled private behavior,” said Peters. “Every other provision in GPL v2 is triggered by distribution.”

The confusion here stems from the ambiguity of where in the patented software GPL code must exist in order to invalidate a lawsuit. If the entity enforcing the patent used GCC during its development process, Peters worries that this could be enough to negate the suit.

It is possible for a company to have GPL 3 code in its software stack without knowing about it, said Peters. “Then, if they choose to sue someone for infringement, the defendant can then go on a hunt for any GPL v3 code used in the company, and if they find it, they can say, ‘Aha, you can’t sue me.’ This may be changed. My hope is they change it to trigger by distribution, not by just privately running code.”

The next iteration should be arriving sometime around the beginning of July, and is expected to remove a good deal of the ambiguity and uncertainty from the draft document.

Moglen went on to say that the GPL 3 now includes the ability to integrate code released under other licenses, and as such, outside patent retaliation clauses could find their way into codebases that merge both GPL 3 code and, for example, the Apache Software License. The trick here

is figuring out which license clauses will remain dominant after a merger, something which Moglen and Peters expect will be clarified in the next draft release.

Moglen also expects the FSF to rework the way the GPL 3 deals with patent license holders offering protections to downstream users of potentially patent-infringing GPL code.


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