The changes in the draft, said attorney Mark Radcliffe of DLA Piper and general counsel of the Open Source Initiative, address the concerns of three major constituencies. "One is that of large companies, which are very concerned about the patent provisions," he explained in an interview. "A second constituency is [the] Linux community, which is particularly concerned about DRM [digital rights management technology]. And the third constituency is the general developer community that wants to see the GPL work with other licenses, and deal with what's called the 'ASP hole.' "
The ASP hole refers to GPLv2's failure to address code-sharing obligations in situations where open source software provides a service over the Internet rather than being distributed for local installation.
One of the major changes is that the GPL is no longer limited to software. "It's basically now any copyrightable work," Radcliffe said. "And that reflects the fact that Sun has released the RTL code for its Sparc processor."
A second major change is the narrowing of the patent section from a broader license of the entire work to one that's based on contributions. "That is something that many large companies with patent portfolios were concerned about because the prior draft said if you distribute GPL licensed code, you grant a patent license to it, even if you don't change it at all," says Radcliffe.
A third major change addresses the Microsoft-Novell agreement, which provides Novell licensees with what amounts to an exemption from patent infringement liability granted by Microsoft. "That was obviously viewed as very controversial," says Radcliffe. "It was viewed in the community as an effort by Microsoft to split the Linux community."
Indeed, in its explanatory note, the Free Software Foundation said, "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. Such deals threaten our community in several ways, each of which may be regarded as de facto proprietization of the software."
The new language attempts to make covenants like the Microsoft-Novell agreement apply to all GPL users rather than just to those using a specific Linux distribution. "How enforceable that is, it's difficult to say, because obviously Microsoft is not a party to the contract," Radcliffe said.
GPLv3 also attempts to address this problem from the Novell side by saying that entering into an agreement with a third party that tries to restrict rights under the GPL is a potential violation of the license.
At the same time, Radcliffe pointed out, this change includes a grandfather clause that would permit Novell's deal. The clause is in brackets, which means its presence in the final draft of the new GPL is not certain. Radcliffe said this is referred to as negotiation by punctuation. "The grandfather clause could be very important to Novell because it would mean that Novell wouldn't have to modify its deal with Microsoft," added Radcliffe.
The absence of this clause from the final version could mean that Novell would lose the right to distribute GCC, the GNU Compiler Collection, a critical development tool, and generally complicate Novell's ability to distribute software covered by GPLv3.
Radcliffe also noted that the foundation has moderated its position on DRM, narrowing the prohibition against DRM to situations where it would prevent people from exercising their rights under the GPL.
The draft also includes a complicated new set of definitions for when encryption keys need to be disclosed. In response to industry concerns, the Free Software Foundation has tried to limit encryption keys to consumer devices. "They've taken aim at the consumer electronics industry," said Radcliffe. "They want to make sure that if a consumer electronics company has something that prevents a user from modifying the code in its product, then that company needs to provide the source code and the encryption keys so someone could make a modified version."
Radcliffe noted that because things become complicated when devices interoperate with a network, such as TiVo does, the foundation has added an exception for situations in which the modified software interferes with the network.
This particular draft remains open for comment for 60 days, followed by a 30-day period to finalize the license.
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