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GPL 3.0 Revision Offers Patent Protection


New clause written by FSF offers covenant for users, developers

By Alex Handy
August 15, 2006 — 
A July revision of the controversial Free Software Foundation’s GNU General Public License 3.0 draft adds a covenant to protect users of patented GPL software from legal action.

The prior draft of the license had drawn ire because of its unclear language in regard to patented GPL software.

Eben Moglen, general counsel of the FSF and co-author of the license, said, “We’ve spent a lot of time listening to a lot of people. We’ve done a good deal of redrafting and responding to ideas developed in the course of the spring.”

Moglen included, with the second draft, an audio recording in which he explains the reasoning behind some of the changes in this draft. Among those reasons, he cited the expansion of digital rights management and the danger of GPL software being used as bait for patent lawsuits as two of the primary concerns addressed in this new draft.

“You certainly wouldn’t want someone suing a user of free software for patent infringement. We want to make sure that nobody turns a patent or a patent license into a way of making a program that is free in appearance un-free in reality,” said Moglen in an interview with SD Times.

The newly added patent covenant appears in the completely revised section 11 of the second GPL 3.0 draft. In this section, the GPL reads, “You receive the Program with a covenant from each author and conveyor of the Program, and of any material, conveyed under this License, on which the Program is based, that the covenanting party will not assert (or cause others to assert) any of the party’s essential patent claims in the material that the party conveyed, against you, arising from your exercise of rights under this License.”

Essentially, said Moglen, this new paragraph means that the rights granted in the GPL cannot be suspended by a software patent. But, Moglen added, this does not mean that software licensed under the GPL cannot be patented: If a developer patents software that’s licensed under GPL 3.0, the developer cannot then mandate that end users have a patent license in order to modify said program.

The revised patent section closes out with a newly added clarification that ensures software patents and copyright privileges that do not infringe upon the GPL’s protections are fair game. “Nothing in this License shall be construed as excluding or limiting any implied license or other defenses to infringement that may otherwise be available to you under applicable patent law.”

But the softened and clarified take on patents doesn’t mean that the Free Software Foundation thinks that software patents are a good idea. “The FSF is a very realistic foundation. Mr. Stallman and his colleagues have always been clear that there’s only so much you can do [about patents in the GPL]. The patent problem hurts everybody because it’s a bad way to think about software, to think of it as patentable,” said Moglen. Richard Stallman is the founder and chairman of the FSF.

Other revisions to the GPL 3.0 include a mandate that requires that all additional licensing information added to software licensed under the GPL be included in the source code. The new draft also broadened the definition of what it means to make source code publicly available to include sharing over peer-to-peer networks.




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