Monday, January 16, 2006


Important news in the free software world today. The Free Software Foundation released a draft of version 3 of the GNU Public License, the cornerstone of much free open source software. The chief change in this version of the software license is in its dealings with those who would use patents against free software:
It is changes in law, not computer technology, that pose the principal challenges to the free software community. Chief among these changes has been the unwise and ill-considered application of patent law to software. Software patents threaten every free software project, just as they threaten proprietary software and custom software. Any program can be destroyed or crippled by a software patent belonging to someone who has no other connection to the program.

We were among the few to recognize the gravity of the software patent problem in 1991. At that time, however, the problem seemed to be confined to one country, the United States. Today the situation is very different. Most countries have followed the direction of the United States, permitting software to be patented to at least some degree. This worldwide shift in patent law has brought about immense harm and injustice. In 1991 GPLv2 was unique in raising a defense against the problem of software patents, in its section 7. It is indicative of the scale of this problem that, by the end of the decade, commentators were criticizing the GPL for doing too little to combat patents.

A program's own license cannot protect it from the threat of software patents. The only real solution to the problem of software patents is to abolish them. However, we can protect against attempts by some participants in a program's development to use patents against other participants. GPLv3 provides an explicit patent license covering any patents held by the program's developers, replacing the implicit license on which GPLv2 relies. GPLv3 also implements a narrow scheme of patent retaliation against those who undertake this precise form of aggression.
We have therefore decided to make the patent license grant explicit in GPLv3. Under section 11, a redistributor of a GPL'd work automatically grants a nonexclusive, royalty-free and worldwide license for any patent claims held by the redistributor, if those claims would be infringed by the work or a reasonably contemplated use of the work.

The patent license is granted both to recipients of the redistributed work and to any other users who have received any version of the work. Section 11 therefore ensures that downstream users of GPL'd code and works derived from GPL'd code are protected from the threat of patent infringement allegations made by upstream distributors, regardless of which country's laws are held to apply to any particular aspect of the distribution or licensing of the GPL'd code.

A redistributor of GPL'd code may benefit from a patent license that has been granted by a third party, where the third party otherwise could bring a patent infringement lawsuit against the redistributor based on the distribution or other use of the code. In such a case, downstream users of the redistributed code generally remain vulnerable to the applicable patent claims of the third party. This threatens to defeat the purposes of the GPL, for the third party could prevent any downstream users from exercising the freedoms that the license seeks to guarantee.

The second paragraph of section 11 addresses this problem by requiring the redistributor to act to shield downstream users from these patent claims. The requirement applies only to those redistributors who distribute knowingly relying on a patent license. Many companies enter into blanket patent cross-licensing agreements. With respect to some such agreements, it would not be reasonable to expect a company to know that a particular patent license covered by the agreement, but not specifically mentioned in it, protects the company's distribution of GPL'd code.
So, there you have it. A software company that distributes GPLv3 software explicitly licenses, royalty-free, any patents that may cover that software to all downstream users and developers. The number of companies that now rely on open source software as part of their business model is now huge: IBM, HP, Sun, Novell, and even Microsoft -- not to mention folks such as SCO. If they don't want to give royalty-free licenses away for patents covering open source software, their choice is clear: they must cease distribution of that free software.


Blogger A concerned progressive said...

Has anyone considered the fact that this might have unintended consequences?

Dragging the legal profession further into the GPL arena with an explicit patent license risks making the "gift economy" of open source software more expensive to operate in.

I advocated that the W3C adopt a royalty-free standard for patents in web technologies, but I'm still concerned.

2:50 PM  

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