The Free Software Foundation has published the third draft of its re-write of the GNU General Public License, making good on its plan to outlaw Novell Inc’s recent patent deal with Microsoft.
The FSF’s founder, Richard Stallman, declared in late November that it would use the third draft of GPLv3 to prevent a repeat of the Novell/Microsoft patent deal, which saw each party promise not to sue the other’s customers for patent infringement, and Microsoft pledge not to sue non-commercial Linux developers and any contributors to Novell’s openSUSE project.
After investigation the FSF decided that the deal was not a violation of the current GPLv2, used by the many free and open source software packages distributed by Novell as SUSE Linux Enterprise, but that it was against the spirit of the free software movement in that it discriminated in favor of Novell’s distribution.
The fact that it also enabled Microsoft’s chief executive, Steve Ballmer, to claim that non-Novell Linux users have an undisclosed balance sheet liability for their use of Microsoft intellectual property, also ensured that efforts were made to make the deal a breach of GPLv3.
Novell and Microsoft have recently attempted a new way of using patents against our community, which involves a narrow and discriminatory promise by a patent holder not to sue customers of one particular distributor of a GPL-covered program, the FSF said in a note accompanying draft three.
Such deals threaten our community in several ways, each of which may be regarded as de facto proprietization of the software. If users are frightened into paying that one distributor just to be safe from lawsuits, in effect they are paying for permission to use the program. They effectively deny even these customers the full and safe exercise of some of the freedoms granted by the GPL.
The result is the addition of two paragraphs to the draft that deal both with the existing Microsoft/Novell deal and any potential similar deals.
The fourth paragraph deals with the most acute danger posed by discrimination among customers, by ensuring that any party who distributes others’ GPL-covered programs, and makes promises of patent safety limited to some but not all recipients of copies of those specific programs, automatically extends its promises of patent safety to cover all recipients of all copies of the covered works, explained the FSF.
In other words, if Microsoft has promised not to sue Novell SUSE Linux users, it has promised not to sue any users of any of the open source packages that make up that distribution.
Preventing potential future deals is a tougher nut to crack, not only because the FSF is trying to guess what form they might take, but also because it is wary of accidentally outlawing current patent contributions, covenant and cross-license agreements that are benefit open source.
The draft therefore states that any vendor that enters into such an arrangement will be prevented from distributing software licensed under GPLv3. It only applies to deals done after March 28, 2007 at this stage.
While that might sound like Novell has been let off the hook, the FSF said it is open to removing that clause, but is confident that the extension of patent protection to all parties will be enough to quash its patent deal with Microsoft.
We believe it is sufficient to ensure either the deal’s voluntary modification by Microsoft or its reduction to comparative harmlessness, noted the FSF. 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, it noted.
Upon completion of the GPLv3 a significant number of free and open source projects are expected to transfer to the new version, which could potentially leave Novell users with patent protection that only applies to older versions of the GPL.
If the data clause were removed, Novell would be further prevented from distributing GPLv3 code at all.
Linux kernel creator Linus Torvalds has maintained that the kernel will remain licensed under GPLv2, but with the GPL covering an estimated three-quarters of all free and open source projects, including the GNU system that completes a workable Linux distribution, Novell could find itself left behind even if the data clause remains.
Since entering into its agreement with Microsoft Novell has declined to comment on the GPLv3 ahead of its completion.
While the latest draft is scheduled to be the last, it will be available for public comment for 60 days, during which it may be updated in response to comments. A final call draft will then be published followed by a comment period of 30 days before the final GPLv3 is published.