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GPLv3 Draft 3 is Here

Posted in Action, Free/Libre Software, FSF, GNU/Linux, GPL, Law, Microsoft, Novell, Patent Covenant, Patents at 1:10 pm by Shane Coyle

For anyone who still says that GPLv2 doesn’t address patents, Groklaw had a link to an interesting piece about implied patent license aspects of GPLv2. I especially agree with PJ’s analysis that the Microvell deal is not harmonious with GPLv2, but rather it was more expedient to address the issue via a new license clause rather than litigation.

They wrote that about GPLv2. So if you think no one should use a software license to address patents, the GPL already does, my friends. So please don’t waste my time placing that thought in a comment on the draft. Read this article instead. That’s why the Novell-Microsoft patent deal sticks in the community’s craw, and why I personally doubt it is harmonious with GPLv2. I think that Eben Moglen just found an easier way to block it than through litigation. If you’ve followed the SCO Magical Mystery Tour, where after four years, we still don’t know what it’s actually about, you may be able to figure out why it could be easier and cheaper to just fix the license to make things crystal clear.

Well GPLv3 is definitely going to address patents, here is the patents section of the new draft, and it is constructed in no uncertain terms to tell Novell that their patent license deal (and any others like it) are unacceptable, "however denominated". Then, it grants an odd semi-exception to their deal which at first read had me quite confused.

11. Patents.
Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor’s essential patent claims in its contribution, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contribution.
For purposes of the following three paragraphs, a “patent license” means a patent license, a covenant not to bring suit for patent infringement, or any other express agreement or commitment, however denominated, not to enforce a patent.

If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) disclaim the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients. “Knowingly relying” means you have actual knowledge that, but for the patent license, your conveying the covered work in a country, or your recipient’s use of the covered work in a country, would infringe one or more identifiable patents in that country that you have reason to believe are valid.

If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license providing freedom to use, propagate, modify or convey a specific copy of the covered work to any of the parties receiving the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a patent license (a) in connection with copies of the covered work conveyed by you, and/or copies made from those, or (b) primarily for and in connection with specific products or compilations that contain the covered work, which license does not cover, prohibits the exercise of, or is conditioned on the non-exercise of any of the rights that are specifically granted to recipients of the covered work under this License[, unless you entered into that arrangement, or that patent license was granted, prior to March 28, 2007].

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.

Here is the explanation of the cutoff date rationale [PDF] and "letting Novell off" from the FSF themselves.

Drafting this paragraph was difficult because it is necessary to distinguish between pernicious agreements and other kinds of agreements which do not have an acutely harmful effect, such as patent contributions, insurances, customary cross-license promises to customers, promises incident to ordinary asset transfers, and standard settlement practices. We believe that we have achieved this, but it is hard to be sure, so we are considering making this paragraph apply only to agreements signed in the future. If we do that, companies would only need to structure future agreements in accord with the fifth paragraph, and would not face problems from past agreements that cannot be changed now. We are not yet convinced that this is necessary, and we plan to ask for more comment on the question. This is why the date-based cutoff is included in brackets.

One drawback of this cutoff date is that it would “let Novell off” from part of the response to its deal with Microsoft. However, this may not be a great drawback, because the fourth paragraph will apply to that deal. We believe it is sufficient to ensure either the deal’s voluntary modification by Microsoft or its reduction to comparative harmlessness. Novell expected to gain commercial advantage from its patent deal with Microsoft; the effects of the fourth paragraph in undoing the harm of that deal will necessarily be visited upon Novell.

Update: Matt Asay has some on Novell’s his response to the draft, wherein Bruce Lowry also repeats Stafford Masie’s promise of GPL3 compliance – even if they must revisit their deal with Microsoft:

We are firmly committed to continuing the partnership with Microsoft and, as we always have, fully complying with the terms of the licenses for the software that we ship, including software licensed under GPL3. If the final version of the GPL3 does potentially impact the agreement we have with Microsoft, well address that with Microsoft.

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