Guest Blog: Open source expert speaks out on GPLv3

Mark Radcliffe joins us this week to give his expert opinion on the latest draft of GPLv3. Mark is a friend and one of the industry’s premier IP attorneys, especially with open source licensing questions. He is outside counsel for the OSI and chairs Committee C in the GPLv3 drafting process.

In other words, he knows his stuff.

Dave and I invited Mark to contribute to Open Sources on GPLv3. Here’s his response:

The most recent draft of the GPLv3 was released on Wednesday, March 28. This guest blog will summarize the legal issues in the draft and some of the open issues. I have been involved in the process since the beginning because I am the chair of Committee C, the Users Committee, and I serve as outside general counsel on a pro bono basis for the Open Source Initiative. These comments are mine alone and do not represent the views of any of my clients.

The draft is part of a year long process of preparing the first new version of the GPL in fifteen years. The existing version of the General Public License (“GPLv2”) is, by far, the most widely used open source license: more than 70% of open source projects on SourceForge are licensed under GPLv2. GPLv2 is used by many well known programs such as the MySQL database and the Linux operating system.

This third draft (“Draft 3”) is dramatically different from the second draft of GPLv3 (“Draft 2”). These changes reflect the challenges faced by the FSF:

(a) many corporations were concerned about the breadth of the patent license;

(b) the Linux kernel developers have expressed concern about need for a new license, in particular the prohibition on digital rights management; and

(c) Novell entered into a controversial deal with Microsoft in which Novell apparently was able to sell certificates to its customers which included a promise by Microsoft not to sue such customers for patent infringement (the terms of the deal are not public).

This draft responds to many of these issues, but it is not clear if the responses will satisfy these constituencies. However, the initial response by Linus Torvalds, who developed Linux, has been modestly positive. FSF will be accepting comments for sixty days to produce a final draft which, in its turn, will have a thirty day comment period.

The major provisions of Draft 3 of the GPLv3 are:

1. Scope. Draft 3 permits the GPLv3 to apply to copyrightable works other than software, such as documentation and RTL files.
2. Digital Rights Management. The prohibition on the use of programs licensed under the Draft 3 to implement digital rights management functions has been modestly narrowed. The FSF has also limited the requirement of distribution of “encryption keys” as part of “source code” to software which is a part of consumer devices (see below). This approach is a response to another criticism of Linux community. However, it remains to be seen if the changes are sufficient to satisfy the Linux community.
3. Consumer Devices. The draft limits the requirement to provide encryption keys as part of the Source Code (which applied to all software in Draft 2) to consumer devices. It also imposes new requirements specifically aimed at permitting the installation of modified code in consumer devices. This change is in response to the complaints from the Linux community and others about the general requirement to provide encryption keys. This provision may be problematic in the consumer electronics community given the widespread use of Linux and other FOSS software in such devices.
4. Compatibility: Optional Terms. The type of additional terms which can be added to the GPLv3 has been dramatically narrowed. Draft 3 limits such additional terms to minor ones such as different warranty disclaimers and notices. The most important deletion is the option in Draft 2 to add the “Affero” provision. The Affero provision fills the “ASP” loophole by requiring the provision of source code for software provided over a network to all users of the network. The optional Affero provision was strongly opposed by most corporate members on the user committee because the option of adding this provision would make it very difficult to effectively manage their FOSS software use: the corporation would need to review the use of every program which was licensed under the GPLv3 to determine if the Affero provision was included.
5. Patent License. The changes to the patent license are some of the most important in Draft 3. The “general” patent license has been limited to situations in which the program has been modified. Consequently, mere distribution of an unmodified work will not trigger a patent license. This change was very important to large patent holders.

   In addition, two provisions have been added to prevent another Microsoft/Novell type deal. The license provides separate provisions to discourage both Microsoft and Novell as well as companies in their positions in similar deals in the future. For Novell (and similar distributors of works under the GPLv3), the provision would permit termination of the GPLv3 if such distributors enter into certain arrangements with third parties in which such third parties provide patent licenses only to the customers of such distributors. This provision has a potential “grandfather” clause which would limit its application to future deals and thus not require Novell to renegotiate its deal with Microsoft (however the provision is in brackets and may not be included).

   For Microsoft (and similar third parties), the provision would require that the patent license extend to all recipients of the licensed FOSS software. This provision does not have a grandfather provision (no surprise) Such a provision, if enforceable, would potentially require Microsoft to extend its patent license to all Linux users, not just Novell customers. However, both Microsoft and Novell could avoid any problems if all of the certificates (so called SLES) are distributed prior to the effective date of the GPLv3 in ninety days.

6. Network Use: Many members of the FOSS community have expressed concern about the “ASP” loophole. The “ASP” loophole permits companies to modify software licensed under the GPLv2, but not provide the source code of those modifications to third parties if the modified software is not distributed, because the source code requirement is based on “distribution”. ASPs such as Google and Yahoo do not “distribute” their software and, thus, need not make their modifications available. Draft 2 made such a provision optional under the “Compatability Section”, but this option has been deleted. Instead, Draft 3 provides that the software licensed under GPLv3 can be linked with software licensed under the Affero license. The scope of the provision remains unclear.

Since the FSF has reserved the right to issue “interim” modifications to provisions, the next two months should be very dynamic. Stay tuned.

Mark Radcliffe is a partner at DLA Piper, LLP, a 3200 attorney law firm and chairs their Technology and Sourcing Practice as well as the Open Source Industry Group. He works with companies on open source matters ranging from startups to large companies and his open source clients include startups such as SugarCRM and Cleversafe and large companies such as Sun Microsystems, Inc. He is also the outside General Counsel of the Open Source Initiative and is the chair of Committee C for the Free Software Foundation’s review of the GPLv3.