http://www.itmanagersjournal.com/feature/23144
----- 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 update." 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 language. Companies will be forced to open their patent portfolios if they use GPLv3 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 companies 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 scope." 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, Linux.com, and IT Manager's Journal. Slashdot it! ----- regards, alexander. -- http://www.linuxtaliban.com/bilder.htm _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
