New GPL takes shots at patents, DRM

The Free Software Foundation on Monday released a draft version of its new GNU General Public License Version 3 software license designed to address two increasingly important issues in the software industry: software patents and digital rights management.

This document is the first major revision to the popular software license in 15 years and, if adopted, will change the terms under which a variety of open source software, including Linux, Samba and MySQL, is used. It was released Monday at the First International Conference for GPLv3, a two-day conference being held at the Massachusetts Institute of Technology.

The draft includes a provision requiring some software distributors to “shield” software users against some patent infringement claims, and it also prevents GPL-licensed software from being used in DRM copy-protection software, called “digital restrictions management” software by the FSF.

“We are trying to do what we can, in a limited way, to use the freedoms that our license gives us to actively work against the spread of DRM restrictions,” said Eben Moglen, an FSF board member and one of the authors of the draft.

The DRM restrictions send a message to device manufacturers who would like to use GPL-licensed software in their products, he said. “Don’t try to say, ‘We can make $50 music players because the software comes to us cheaply,’ and then handcuff the music and the users.”

The provision will also discourage the use of GPL software in the creation of programs such as Sony BMG Music Entertainment’s XCP (extended copy protection) digital rights management application, said Karen Copenhaver, general counsel with intellectual property management vendor Black Duck Software. Security problems with that program eventually led to the recall of millions of Sony music CDs.

The patent provision calls on software distributors who “distribute a covered work knowingly relying on a patent license,” to “shield downstream users against [certain] possible patent infringement claims,” according to the draft.

This provision is likely to kick off a lot of discussion, especially from large companies with patent portfolios, who may wonder exactly what they must do in order to “shield downstream users,” Copenhaver said.

“This puts a real burden on them,” she said. “The word ‘shield’ is pretty strong.”

Moglen said the language in this section will probably change by the time the final version of GPLv3 is released. “We think it’s a serious problem; we don’t have a solution to recommend,” he said of the patent problem. “We regard today’s draft as simply serving notice that this is a problem that can no longer be ignored.”

The draft also includes new language designed to make the license less dependent on U.S. legal concepts and terms, as well as a provision relating to the use of GPL software for Web services, Moglen said.

Some observers had been expecting the draft to go into more detail on the subject of Web services, but Moglen said the FSF elected to use a “narrow and targeted approach,” in this area. “We did not want to take measures that would achieve little at the expense of a lot, and we believe that the very limited measure that we are taking will do something at very low cost.”

At least one prominent open source developer seemed satisfied with the new GPL. “At first glance it looks really good,” said Jeremy Allison, a lead developer on the Samba file and print server project. “There are some things we’d like to clarify but I can’t see any reason why Samba wouldn’t move forward with it,” he said in an e-mail interview.

After reviewing comments, the FSF expects to publish a second and then final draft of the license by September, meaning that a final version of GPL Version 3 could appear as early as October, Moglen said. Though the FSF has given itself until March 2007 to complete this work, Moglen predicted that the new license will “most likely” be finalized around January 2007.