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Re: GPLv3 comedy unfolding -- Byfield: "Eight common misunderstandings a

From: Alexander Terekhov
Subject: Re: GPLv3 comedy unfolding -- Byfield: "Eight common misunderstandings about GPLv3"
Date: Fri, 11 May 2007 16:17:53 +0200

Eight common misunderstandings about GPLv3

May 10, 2007 (8:01:00 PM)
By: Bruce Byfield 
The official release of the third version of the GNU General Public
License (GPLv3) is still a couple of months away, yet already, the
misunderstandings about it are almost as numerous as those for the
second version (GPLv2).

Some of these misunderstandings are due to the lengthy and public
revision process for GPLv3, which offers plenty of opportunity for
rumors and misreadings. Others may be due to the extensive rewriting of
several key sections of GPLv3, notably the language on patents and
TiVoization, during the process, so that people are concerned about
issues from earlier drafts that the current one corrects or addresses.
Still others seem due to willful misunderstandings by opponents of free
and open source software. Perhaps, too, the fact that GPLv3 is more
obviously a legal document in structure and content than GPLv2 adds to
the confusion. But, whatever the origins of the misunderstandings, many
have gained currency in both the media and some parts of the free and
open source software community.

To separate the confusions and half-truths from the reality, we went to
the source: members of the Free Software Foundation (FSF) such as
compliance engineer Brett Smith, founder Richard Stallman, and executive
director Peter Brown; and the Software Freedom Law Center's Richard
Fontana, who is one of the main drafters of the new license. Taken
together, their comments help to create a clearer picture of the goals
behind GPLv3 and the final form that the license will probably take.

GPLv3 is extending its concern beyond software and attempting to control
business practices

GPLv3 does cover technologies and business practices that have emerged
since the second version of the license was produced. Some, like the
reference to "peer-to-peer transmission" such as BitTorent in section
6e, are uncontroversial, while others, such as the new language about
patents and TiVoization, are seen as more intrusive.

However, the Free Software Foundation does not consider these new
concerns a change of direction, but a natural evolution. When the latest
draft was released, Stallman made clear that the purpose of the GPL was
to block methods "to make free software proprietary." The first version
of the license blocked the methods known then: adding additional license
terms, and not releasing the source code. The second version added
section 7 to block the use of patents to impose restrictive conditions
on users. "Now," Stallman says, "we've found out about two other ways to
try to make free software effectively proprietary: one of them is
TiVoization, and the other is the Novell-Microsoft deal, so we're trying
to block them both. And any time we find some new threat to a user's
freedoms, we will try to block it."

The FSF's objection to the Novell-Microsoft deal is that Microsoft's
payment of a royalty to redistribute Novell's SUSE Linux Enterprise and
Microsoft's protection only for Novell customers in the event of any
patent dispute are circumventions of the intent of GPLv2, although not
the letter. That is why, in moving to block such deals, Peter Brown can
say on behalf of the FSF, "We do nothing new in GPLv3. It's just an

The new patent language could make GPLv3 unenforceable

Section 11 of the latest draft states that, if patent protection is
granted to some users of software released under GPLv3, then it must be
granted to all users. The language in this section was written
specifically to block arrangements such as the one announced by
Microsoft and Novell in November 2006. 

Last month, the Association for Competitive Technology (ACT) issued a
paper claiming that, in adding this language, the FSF risks making the
GPL unenforceable. Assuming that the language is specifically aimed at
the Microsoft-Novell agreement, the paper argues that this language
amounts to a group boycott that is contrary to American antitrust
legislation and illegally attempts to extend the scope of copyright by
using it to control patents and to extend patent protection. The danger,
the paper suggests, is that the language "can give rise to claims for
copyright misuse that would block all enforcement of such copyrights
until the misuse is purged."

However, by focusing on the agreement that inspired the language, ACT's
analysis ignores the fact that, no matter what the writers of GPLv3 may
have said in public, the language itself does not specify any particular
agreement. Moreover, the language does not apply to patent agreements in
general, but only to how patent agreements interact with GPLv3. This is
a much narrower area, and, basically an extension of section 7 of the
existing version of the GPL -- the so-called Liberty or Death provision
-- which has never been challenged in 15 years. 

Admittedly, the new language can probably not be applied retroactively.
That is why the FSF is considering a grandfather clause for any patent
agreements signed before March 28, 2007, exempting them from the new

Companies will be forced to open their patent portfolios if they use

In a position paper published in September 2006, a dozen Linux kernel
developers claimed that GPLv3 "would potentially jeopardise the entire
patent portfolio of a company simply by the act of placing a GPLv3
licensed programme on their Web site."

However, this claim is unsupported by any reading of any draft of GPLv3.
Smith explains, "When a company distributes software under GPLv3,
they'll be required to license any patents practiced by that software so
that users can use, share, and modify the work -- and nothing more. They
aren't required to license any patents that aren't practiced by the
program they distribute. Nor are they required to surrender the patent
entirely -- if a different proprietary software developer infringed on a
patent that was licensed for use in GPLv3 software, the distributor
would still be able to sue for patent infringement."

The proposed grandfather clause gives Novell an advantage over other

The grandfather clause allowing selective patent protection based on
agreements signed before March 28, 2007, may in fact give Novell an
advantage over other companies that distribute GPLed software. Alone
among distributors of free software, it could offer immunity to its
customers should any Microsoft intellectual property be found in
GNU/Linux in the future.

The clause is essentially a tactical move, included out of legal and
practical necessity. It is legally necessary because the GPLv3 probably
cannot be applied to agreements made before is released, and practically
necessary not to upset other distributors of free software. According to
Smith, the FSF is wary about introducing language that might apply to
what he characterizes as "harmless" patent settlements by other
companies as well as Novell. "It would be a Pyrrhic victory if we drove
away lots of free software distributors when we prohibited Novell from
distributing the software, too," Smith says.

At any rate, no final decision has been made about the grandfather
clause. Stallman, Smith, and Brown have all indicated that they would
like to remove it from the official release if possible. But, even if it
remains, any advantage it gives to Novell will expire with the company's
agreement. "Even if the playing field isn't fair for a while," Smith
says, "it will likely fix itself in a few years."

GPLv3 prohibits digital rights management (DRM) technologies

The first draft of GPLv3 included strong language in section 3 that
would not only disallow lock-down technologies, but -- at least in
theory -- simple file encryption. Together with the title of the
section, "No Denying Users' Rights through Technical Measures," as well,
perhaps, as the FSF's anti-DRM "Defective By Design" campaign, this
language created the impression that the new version of the license
would prohibit all DRM measures. This move was widely denounced,
especially by Linux kernel developers, who offered a philosophical
objection to any restrictions on how software was used.

This perception should be corrected by the third draft. According to
Richard Fontana, the current version of section 3 "has nothing directly
to do with DRM at all. Rather, it's concerned with protecting users from
certain kinds of laws that can be used to prevent users from copying and
modifying free software. Beginning in the late 1990s, some countries
have enacted what are called 'anti-circumvention laws,' which in effect
enlarge the traditional powers of copyright holders to the detriment of
users of copyrighted works, eviscerating rights of fair use. In the
United States, for example, an anti-circumvention provision is contained
in one section of the Digital Millennium Copyright Act. Section 3 of
GPLv3 does what little the GPL can do to protect users of GPL-covered
works from being subjected to civil and criminal liability under
anti-circumvention law for exercising their rights under the GPL to
copy, modify, and share free software."

Language that directly addresses DRM along with other forms of
TiVoization are included in section 6 of the current draft. But, rather
than forbidding DRM, the section simply requires distributors to include
the source code for lock-down technologies that is required "to install
functioning modified versions of the software." As Fontana adds, "this
is hardly a radical or controversial idea; it's a slight generalization
of a feature that has been present in the LGPL [the GNU Lesser General
Public License] for many years."

The definition of "user product" will make GPLv3 inapplicable outside
the United States

The latest's draft's anti-TiVoization language introduces the concept of
a "user product." According to section 6, a user product is "a consumer
product" intended for "personal, family, or household purposes," and
software that runs on a consumer product must conform to the provisions
described in the section. Smith describes this definition as a
compromise that addresses the major problems for free software "without
interfering with certain kinds of business models that aren't harmful to
us." In its definition of a consumer product, the latest draft cites the
definition in the American Magnuson-Moss Warranty Act, which some people
have seen as an attempt to impose American law on other jurisdictions.
But, according to Smith, all the FSF is doing is "providing judges with
source material that provides an interpretation of a particular
definition -- one that just happens to live in US law. Based on our
research, we don't think this will hurt the license's international

You won't be able to run GPLv3 programs with a GPLv2 kernel

This belief has caused considerable concern because Linus Torvalds and
other kernel developers have declared that the Linux kernel will
continue to use GPLv2. But Smith notes that programs that interact with
the kernel through programming libraries and system calls have never
been considered derivative works of the kernel as defined in the GPL.
Therefore, programs do not need to use the same license as the kernel.
They can even be proprietary.

GPLv3 will cause a proliferation of different licenses

Section 7 of the third draft allows for specified additional "terms that
supplement the terms of this License by making exceptions from one or
more of its conditions." Smith explains that this section is intended to
make it easier for the GPL to interact with other licenses used in the
free software community. Often, these other licenses include provisions
that are either trivial to meet or legal requirements; for example, they
might state that you do not have permission to use the trademarks
associated with the code. In essence, Smith says, this section "just
explicitly says that it's OK to use code that has trademark protection
or other requirements that we've historically accepted."

Smith grants that the exceptions specified in section 7 may be used to
produce variations of the basic license. He suggests, though, that the
exceptions will be used chiefly on software that originally used a
different license. Yet, even if he is wrong, he expects no practical
problems because "section 7 will let you take code released with that
additional term and use it in all other projects released under GPLv3."

As the process continues

These are only the major issues raised by the third draft of GPLv3. For
a more complete view, see the annotated version of the third draft.

The public consultation process for GPLv3 is not over yet. The last call
draft is still more than a month away, and the FSF has announced the
possibility of publishing interim drafts both before and after that
based on last-minute feedback. So far, no interim drafts have been
released, but the possibility remains. Some language, especially that
about patents and the grandfather clause, could still change radically
before the official release of the license.

Still, in many sections, GPLv3 is nearing its finished form. Even though
the process is ongoing, it is not too early to educate yourself about
the details, so you can consider whether to use the new version when it
is officially released.

Bruce Byfield is a computer journalist who writes regularly for
NewsForge,, and IT Manager's Journal.

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