In the coverage and early reviews of the latest draft of the GPLv3, the "Microvell Escape Clause" is garnering alot of attention, causing alot of confusion and a even a bit of uproar around the community (we updated our poll, feel free to make your feelings known). I, too was quite shocked at first read, and immediately grabbed the rationale document [pdf] to mollify my concerns.

The so-called escape clause is, at this time, only a proposed piece of language (indicated by the fact it appears within brackets in the new draft) that essentially limits the effects of Paragraph 5 in Section 11 to any future discriminatory deals. On its surface, this is indeed a grandfather clause that would apply directly to the Microvell deal, but that is not its sole intent.

One point in particular that's drawing a lot of attention already is the bracketed clause in section 11. We've proposed language that would prohibit distributors from entering discriminatory patent deals like the one between Microsoft and Novell; the text in brackets is still under consideration, and would make that effective only against deals that were made starting today. If the text is removed, the draft would be "retroactive" because it would prohibit companies from distributing GPLv3ed software if they've already entered such a deal. That's as far back as it can go—we don't have a magic trick to retroactively stop those companies from distributing software under GPLv2.

So, if the text in brackets is adopted for the final version of the license, it is true that this would grandfather in Novell. That's not the reason we're considering it, though. After all, that deal would still be affected by the previous paragraph, forcing Microsoft to offer its patent protection to everyone instead of just Novell's customers. At the same time, a number of other companies who distribute free software are worried that our language will affect other kinds of patent agreements they've made that aren't harmful to the community, like patent cross-licenses. If you want to learn more about this, the rationale document has details.

So, Novell is not off the hook, if they want to be GPLv3 compliant as they have promised, they will likely need to revisit their Microsoft deal in some way if the current draft is accepted. As I understand it, Section 11, Paragraph 4 will require Novell to pass on their patent license to all recipients, rather than just "customers". I'm not sure how Microsoft will feel about that prospect, so we'll have to stay tuned for that.

I, personally, love the new GPLv3 draft improvements overall. In regards to the grandfather clause, I think I like it, but am still giving it consideration. I'll be perusing this draft a few more days, and looking for some enlightened analysis to help me, anyone who stumbles on a great link or article please leave it in the comments so that we may have an informed, fact-based discussion.