GPL 3 draft draws mostly positive response

Major update of GNU GPL does raise some concern about software patent protection, DRM

The open-source community and lawyers have greeted the Free Software Foundation's (FSF's) first take on a major update to its GNU GPL (general public license) with more bouquets than brickbats.

While there is concern about some areas of the initial draft of version 3 of the license, notably software patent protection and DRM (digital rights management), the general IT industry response to GPL 3 so far is positive.

Last fully revised in 1991, the GPL gives users the right to freely study, copy, modify, reuse, share, and redistribute software. The FSF estimates that the majority of all free and open-source software (FOSS) is distributed under the GPL, including the Linux operating system, MySQL AB's database and the Samba file and print server project.

"It takes some interesting and, I think, very promising approaches to problems that have been big issues for the free software community for a long time, such as the patent problem and the problem of license incompatibility," Andrew "Tridge" Tridgell, founder of the Samba project, wrote in a e-mail request for comment. Calling the draft "a really good starting point," he added that all parties involved will probably take quite a while to work through the implications of the initial GPL 3, with revisions needed to some of the draft language.

The FSF recently released the initial license draft at the two-day First International Conference for GPLv3 at the Massachusetts Institute of Technology. Based on advance registration, the conference attracted registered 262 attendees, just under a quarter of whom came from abroad, including Europe, Asia and South America, according to Peter Brown, FSF executive director.

"There was a true cross-section of people," Brown said in a phone interview, with attendees including members of the various worldwide FSF groups, along with lawyers and executives from corporations such as Google, Hewlett-Packard, IBM, and Yahoo.

Kaj Arnö, vice president of community relations with MySQL, had a more colorful way to describe the conference attendees. "I think there was a good balance between different hair and beard lengths," he wrote in an e-mail interview. "Overall, I saw a lot of respect for the FSF by the attendees, and by the FSF for the varying nature and backgrounds of the attendees."

The conference was "a very successful kick-off" to the GPL 3 process, according to Eben Moglen, an FSF board member and one of the authors of the GPL 3 draft. "It's exactly what I'd hoped it would be," he said in a phone interview. Moglen also chairs the Software Freedom Law Center and is a professor of law and legal history at Columbia University Law School.

Moglen was impressed by the attention given to his "28 slides of text" in his 90-minute presentation of the GPL 3, which drew an estimated audience of 400-plus individuals. "[As a professor], you listen for the shuffling of feet," he said. "I was quite surprised how little there was of that."

He characterized his audience's response to the draft as mixed. "In one or two places, people were thinking to themselves, 'That's ingenious, it's pushing licensing technology of copyleft forward a bit,'" Moglen said. "Then, there were places where people wiped their brow a bit, it was less harmful than they'd feared. They felt the bullet had been dodged."

The FSF defines "copyleft" as a general method for making a program or other work free, requiring all modified and extended versions of that program to also be free.

One provision in the GPL 3 draft that is already generating plenty of feedback concerns patent licensing. With many large software vendors owning patents and engaging in the cross licensing of patents with their peers, the draft requires such organizations to "shield downstream users" of their applications against any possible patent infringement claims. Currently, there's the potential for larger companies to "export patent risk" to their users, Moglen said, a risk that the companies, as patent holders, don't share.

Moglen foresees many ways of shielding downstream users, including companies disclaiming their own licenses or creating patent pools like the Open Invention Network formed in November by IBM, Red Hat, and others. Like many of the conditions in the draft GPL 3, the shielding issue should be read as "an invitation to a discussion," Moglen said, implying the language of the license may well change.

Arnö welcomed the move. "The GPL 3 attempts at minimizing the problems from the Sick Man of Software, i.e. the patent system, without fighting the SWPATs [software patents] in a windmill fashion," he wrote. "For the sake of the downstream users (that's you and me), I hope there is enough legal clarity." This is one area that the FSF's Discussion Committee B, which Arnö co-chairs, will focus on over the coming months, he added. The committee includes representatives from HP, IBM, and Intel along with midsize companies such as MySQL, Red Hat, and Trolltech.

While the FSF has long held that software patents presented a major problem, a newer area of controversy the organization is taking up in the GPL 3 draft is DRM. "There's no end to the harm" DRM can cause, according to Moglen, with consumer electronics and IT companies likely to find themselves in the middle of the ongoing furious debate between content producers and end-users, he said.

"Not all players will like the FSF position," Arnö wrote. "But, hey, FSF is the 'benevolent dictator' whose wisdom developers and users of GPL software have to rely on!"

One area that surprised some people was the FSF's move to make the GPL 3 draft compatible with the Apache Software License and Eclipse Public License. Previously, the organization had stressed the incompatibility between GPL and the two open-source software licenses. Having the compatibility in place going forward may result in more people using the GPL in combined works as well as making them feel more comfortable about adopting the FSF license, according to Brown.

"At MySQL, we've gone through a lot of trouble to create what we call the "FOSS Exception", which actually is an extension (or, "permission" in GPL 3 parlance) of the license," Arnö wrote. "That took a lot of effort and lawyer fees."

Christine Martino, vice president of open source and Linux at HP, also foresaw a positive impact in more easily being able to combine source code from different projects. However, she cautioned that such compatibility may add a degree of complexity to the management of license information. "If this feature of the license is adopted, it would become necessary to track a new class of special license information; whereas in the past, GPL-licensed projects had much simpler licensing information (just GPL)," Martino wrote in an e-mail request for comment.

The FSF has worked hard on trying to further internationalize the GPL, according to Moglen, with the ultimate aim to create a "global GPL," he said. "We've cut free from the moorings of the U.S. law as much as we could," he added. "We've got a lot to do."

Where the FSF has not yet ventured is in creating legally binding translations of the GPL, according to Arnö.

While previous versions of the GPL have been translated into a plethora of languages, none of the translations have the official approval of the FSF. The only authentic version of the license is in English, with the FSF stating that checking translations of the license would be difficult and expensive and should any errors slip through the translation process, the entire free software community could be harmed. The unofficial translations are for native speakers to better understand the license, not to be used in any legal process.

Arnö fully understands those concerns. For any official translation, the FSF would want to be absolutely sure that the license could be defended by very competent lawyers fluent in that language. "But when it comes to freedom, I also would like to tout the horn for freedom from dependence on any single language," he wrote.

The FSF intends to continue receiving comments on the initial GPL 3 draft into late April and early May, according to Moglen. Then, Richard Stallman, creator of the GPL and FSF president, and Moglen will take a break and work on the second draft of the license, which they currently hope to release in late May, he said.

"This [the second draft] could be the final release, if there are no open issues on major subjects," Moglen said. However, he doubts that will be the case, so a "last-call" draft scheduled for the fall is likely, he added.

Stallman and Moglen are also working on an initial draft for the Lesser GPL (LGPL) 3 that could appear in May. The LGPL is a looser license than the GPL and can be linked to free or proprietary software not licensed under the GPL. The aim to is run the LGPL 3 process in parallel with GPL 3, according to Moglen.

(Robert McMillan in San Francisco contributed to this story.)

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