GPL 3 isn't the 'last call;' FSF locks in on Microsoft-Novell

GPL 3 isn't the 'last call;' FSF locks in on Microsoft-Novell

Summary: Just when you thought that the General Public License third draft was the last word, the Free Software Foundation notes the process will drag on a bit more. There are at least 90 days until a final version and chances are it'll take a lot longer than that.

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TOPICS: Patents
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Just when you thought that the General Public License third draft was the last word, the Free Software Foundation notes the process will drag on a bit more. There are at least 90 days until a final version and chances are it'll take a lot longer than that. 

In its comments about the changes in the third draft of the GPL, the Free Software Foundation says the following:

Given the extent of the changes that we have made in Draft 3, we will not treat Draft 3 as a “last call” draft. A public discussion period of not less than 60 days will begin on the date of our release of Draft 3, after which we will release a last call draft. Then, following a 30-day comment period, we will formally adopt the final version of GPLv3.

Steven J. Vaughan-Nichols notes that it may take at least another year to get a final draft. And guess what sparked the delay--Microsoft's deal with Novell. It's unclear whether FSF's language in the latest GPL draft will prevent a similar deal in the future, but that's the intent.

We offer our apologies to the community for the delay in releasing Draft 3. Our original plan was to publish a third discussion draft in mid-autumn of 2006. The unforeseen agreement between Microsoft Corporation and Novell, Inc., announced in November, presents grave threats to users of free software. It was necessary for us to take the time carefully to develop mechanisms in GPLv3 that would deter agreements of this sort and provide strong defenses against their accompanying dangers.

What's most helpful to digest the GPL changes is FSF's rationale for the changes. In the PDF you can search on the key terms and them map them to the actual draft. Otherwise, you spend a lot of time on legalese.

For sake of discussion, here are some key changes in the latest GPL draft and how they're designed to target the Microsoft-Novell partnership. This meant to be a guide as you wade through the GPL. The FSF notes:

Draft 3 introduces two new provisions in section 11, located in the fourth and fifth paragraphs, that address the problem of collusive extension of patent forbearance promises that discriminate against particular classes of users and against the exercise of particular freedoms. This problem has been made more acute by the recent Microsoft/Novell deal.

More specific comments on how Microsoft and Novell impact discriminatory patents:

A software patent forbids the use of a technique or algorithm, and its existence is a threat to all software developers and users. A patent holder can use a patent to suppress any program which implements the patented technique, even if thousands of other techniques are implemented together with it. Both free software and proprietary software are threatened with death in this way. However, patents threaten free software with a fate worse than death: a patent holder might also try to use the patent to impose restrictions on use or distribution of a free program, such as to make users feel they must pay for permission to use it. This would effectively make it proprietary software, exactly what the GPL is intended to prevent. 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. 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. And they make disfavored free software developers and distributors more vulnerable to attacks of patent aggression, by dividing them from another part of our community, the commercial users that might otherwise come to their defense. We have added the fourth and fifth paragraphs of section 11 to combat this threat. This subsection briefly describes the operation of the new provisions...

More concerns on the Microsoft and Novell partnership:

The details of the agreements entered into between Microsoft and Novell, though subject to eventual public disclosure through the securities regulation system, have not been fully disclosed to this point.20 It is a matter of public knowledge, however, that the arrangement calls for Novell to pay a portion of the future gross revenue of one of its divisions to Microsoft, and that (as one other feature of a complex arrangement) Microsoft has promised Novell’s customers not to bring patent infringement actions against certain specific copies of Novell’s SUSE “Linux”21 Enterprise Server product for which Novell receives revenue from the user, so long as the user does not make or distribute additional copies of SLES.

The basic harm that such an agreement can do is to make the free software subject to it effectively proprietary. This result occurs to the extent that users feel compelled, by the threat of the patent, to get their copies in this way. So far, the Microsoft/Novell deal does not seem to have had this result, or at least not very much: users do not seem to be choosing Novell for this reason. But we cannot take for granted that such threats will always fail to harm the community. We take the threat seriously, and we have decided to act to block such threats, and to reduce their potential to do harm. Such deals also offer patent holders a crack through which to split the community. Offering commercial users the chance to buy limited promises of patent safety in effect invites each of them to make a separate peace with patent aggressors, and abandon the rest of our community to its fate. Microsoft has been restrained from patent aggression in the past by the vocal opposition of its own enterprise customers, who now also use free software systems to run critical applications. Public statements by Microsoft concerning supposed imminent patent infringement actions have spurred resistance from users Microsoft cannot afford to alienate. But if Microsoft can gain royalties from commercial customers by assuring them that their copies of free software have patent licenses through a deal between Microsoft and specific GNU/Linux vendors, Microsoft would then be able to pressure each user individually, and each distributor individually, to treat the software as proprietary. If enough users succumb, it might eventually gain a position to terrify noncommercial developers into abandoning the software entirely.

And the specific provisions to prevent future deals like the Novell-Microsoft partnership:

Preventing these harms is the goal of the new provisions of section 11. 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. This will negate part of the harm of the Microsoft/Novell deal, for GPLv3-covered software. In addition to the present deal, however, GPLv3 must act to deter similar future arrangements, and it cannot be assumed that all future arrangements by Microsoft or other potential patent aggressors will involve procuring the conveyance of the program by the party that grants the discriminatory promises of patent safety. Therefore, we need the fifth paragraph as well, which is aimed at parties that play the Novell role in a different range of possible deals. Drafting this paragraph was difficult because it is necessary to distinguish between pernicious agreements and other kinds of agreements which do not have an acutely harmful effect, such as patent contributions, insurances, customary cross-license promises to customers, promises incident to ordinary asset transfers, and standard settlement practices. We believe that we have achieved this, but it is hard to be sure, so we are considering making this paragraph apply only to agreements signed in the future. If we do that, companies would only need to structure future agreements in accord with the fifth paragraph, and would not face problems from past agreements that cannot be changed now. We are not yet convinced that this is necessary and we plan to ask for more comment on the question.

This is why the date-based cutoff is included in brackets. One drawback of this cutoff date is that it would “let Novell off” from part of the response to its deal with Microsoft. However, this may not be a great drawback, because the fourth paragraph will apply to that deal. We believe it is sufficient to ensure either the deal’s voluntary modification by Microsoft or its reduction to comparative harmlessness. 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.

Reading between the lines it seems like there's not a lot that can be done about the Microsoft-Novell deal. Similar deals down the road could be difficult. The comments should be interesting to watch.

Topic: Patents

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63 comments
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  • Several thoughts...

    I guess the first thing that stands out to me is the depth of the legalize. (The size of the new licnense) Users have always had a difficult time understanding and applying the GPL properly (several law suits over it in fact). This is going to do nothing but complicate it even more for the end user and even developers. Will it complicate it so much that the majority simply say no thanks? I believe it will. Especially in the corporate world where lawyers have sway in decision making. Face it, corporate lawyers would always prefer to error on the side of caution.

    The second thing is how much power Microsoft has had in forcing and to some extent controling this version of the GPL. They managed to induce a level of paranoia that I find disheartening. As stated in the article, the MS/Novell deal didn't really cause a bit of harm, and yet the *emotional* (read as zealotry) responce borders on the fanatical. Like it or not, this fact will not go un-noticed by the corporate world. In fact many in the corporate world will see this as open source being afraid to compete on merit and at a minimum will see it as open source not wanting to give users interoperability. (Unless of course Stallman gets to dictate what interoperability is and how it happens.)

    Reading through the draft it is apparent that it is targeting DRM in both hardware and software. Simply put, that is going to leave open source "out in the cold" as more and more people wish to protect their IP. (Users and providers from all walks.)

    And finally, Linus T. has been adament that Linux is not going to adopt the GPL-3 (It can not due to all the contributers and tracking them down and getting their permission.) Without open source's "flag ship" offering the entire thing becomes all but moot.

    The truth is, all I see here is one man's (Stallman) political/emotional view manifesting itself to the detriment of users and indeed the open source movement in general. Everyone can say "It's not about corporate acceptance" but they are kidding themselves. If it dies in the corporate world there is nothing left but the tiny minority of users left to keep it alive and that won't last long.

    What do I see in the future? The GPL-2 will be with us a very, very long time...
    No_Ax_to_Grind
    • Damn, Beazulbub must be shivering in his knickers

      cause I think hell just froze over. I actually agree with your post. ]:)
      Linux User 147560
      • I do aw well, except for one part of it.

        I think it's time Google, as I've said all along, adopt what's been proposed for v3. They are getting away with using Linux, modifying linux and "repackaging" and selling the "packaged" product. Which of course is serach, desktop and enterprise web apps. I don't like Stallman at all cause he's a megalomaniac, but he's right on services. They need treated like any other product and code be released.
        xuniL_z
    • If this continues...

      ... version 3 will be more complex and restrictive than any known EULA. And you're right, corporate attornies will look at the provisions attempting to prevent guarantees against patent enforcement, and wonder how many contortions they can accept.

      There can also be a problem for those who profess to reject Mr. Stallman's views but still advocate for open source. Eventually they will arrive at a situation in which open source cannot do what they believe it should because of Mr. Stallman's restrictions. Like the attornies looking at complexity, they will have to decide whether open source is worth it.

      And Mr. Stallman will also be reaching the limit of tolerance. Too many people attempting to get around his control in order to preserve their jobs or otherwise failing to live up to his vision. He could decide to be even more absolute than he is now.

      The inherent contradictions of open source are becoming more and more clear. It can be commercial software, in which case it has to approach proprietary. Or it can return to the hobbyists from whom it came. Which would be the best solution for the market and everyone in the field.
      Anton Philidor
      • Reality

        Do you ever visit reality Anton?

        FOSS is not commercial software. It can be used to further commercial interests. There is a difference.

        "more restrictive than any known EULA"?

        That's the silliest thing I've ever heard Anton. Are we now supposed to take you seriously? The standard proprietary EULA is all about restricting users and absolving the proprietor of any and all liability. The GPL on the other hand is about protecting maximum freedom for all. Taking free software for the use of one entity or a few excluding all others is NOT freedom Anton.

        I would ask you the same thing I asked bit. Since you clearly love proprietary software why do you care which version of the GPL free software devs choose?
        Tim Patterson
        • Restrictions are restrictions

          Whatever the goal, telling people and organizations what they can and cannot do is setting restrictions.

          Tim, reread this and see if you don't recognize the logic satirized in Animal Farm:

          "The standard proprietary EULA is all about restricting users and absolving the proprietor of any and all liability. The GPL on the other hand is about protecting maximum freedom for all."

          What if protecting maximum freedom means restricting users?
          What if protection involves establishing or removing liability?

          The very length of the GPL v3 says EULA to me. If you were to think about it without advocacy, I think you'd agree.
          Anton Philidor
          • In your world

            Are you implying Anton that restricting people's freedom is a good thing?

            That's how it appears Anton. You seem to be saying that prohibiting a company from taking away user's freedoms is a bad thing and why you oppose the GPL.
            Tim Patterson
          • Think of FSF as a union...

            ... negotiating working conditions with the employers, including how the work is to be treated after use. True, the Auto Workers don't tell GM and Ford how to sell vehicles, so the GPL control is more stringent than in that example.

            So perhaps the better comparison is to agreements between the Guilds and newspapers determining what use may be made of the written materials produced by the employees, and what rights the employee retains.

            Freedom? In commercial transactions governed by a contract, that's a combination of control and monetary advantage, right?

            Any document which lists what can and cannot be done is going to have an effect on freedom.
            Anton Philidor
          • I think your problem is who has the freedom.

            In the case of the GPL, the developers are given certain freedoms as per the licence to use Copywrited works. Corporations can actually use other peoples Copywrited works if the agree to a given license taht granst one use of said Copywrited works. You apear to not understand that if you want to use someone (indivisual developer or corporations) Copywrited works, you have to agree to a license (and the restrictions set forth in the license).

            In a commercial/binary way, the EULA is similar (sans rights given to the individualto modify and use the source). The BSD license also presents restrictions as per usage of the Copywrited materials that are linked to it. This si just how licensing works.

            Why is this a hard concept for you?
            B.O.F.H.
          • Users?

            The GPL is a copyright license, not an End User License Agreement,
            so the General Public License is no EULA, no matter how dense the legalese its licensed publishers must adhere to.
            epcraig
        • Restriction is in the eyes of the beholder.

          While *you* may or may not find something restrictive, others don't share the same view.

          If you are 5'6" tall and you see a sign that says no one over 6' allowed you obviously don't see it as a restriction, someone 6'1" would...
          No_Ax_to_Grind
          • No no no no no no! And NO!

            Restriction is in the EULA. Evidently,
            you have never read your Microsoft EULA.

            I just have to laugh at the clowns who
            use software under a Microsoft EULA
            discussing the FSF license. Where do
            they find such nonesense? Why don't you
            post a section of the FSF license and
            the corresponding section of Microsoft's
            EULA?
            Ole Man
    • Nope

      Sorry bit but I think you are suffering from a case of wishful thinking. We all know that you don't like Linux or the GPL and we really don't care for that matter.

      You as well as everyone else is free to use GPL'd software or not.

      I read this draft and there is nothing in it I find to be unacceptable. It seeks to provide maximum protection of freedom. It is clear to most who understand the intent of GPLv2 that the MS/Novell deal violated the clear intent of that license. The wording of GPLv2 however did not preclude the legal obfuscation of the MS/Novell deal. This is nothing more than revision to protect the long-held intent of the GPL.

      GNU will adopt it as will many current GPL projects. Sun has said that they are looking at possibly moving Java and maybe even Solaris to GPLv3.

      What you apparently fail to understand bit is the fact that companies like Novell didn't create the vast majority of the software they now base their business on. Since they are using (and are even dependent upon) software NOT created by them the least they can do is honor the license chosen by those who did create the software.

      We all know you are a fan of proprietary software. The only question here is why do you care about the GPL or which version is preferred among creators of free software?
      Tim Patterson
      • Agreed in part.

        Good point here:


        "... companies like Novell didn't create the vast majority of the software they now base their business on. Since they are using (and are even dependent upon) software NOT created by them the least they can do is honor the license chosen by those who did create the software."

        Yes, companies can save on staff expenses by using (or exploiting) the contributions of others. The companies cannot control the actions of their contributors.

        So what happens when those contributors attempt to damage - actively - the company which is using their work?

        This is probably not the worst contradiction we'll see between those making a living from software and those following open source principles.

        But it could determine just how vulnerable open source companies are, and how leery potential customers should be about these... labor issues.
        Anton Philidor
        • Where to start...

          Companies may not have the ability to control their contributors Anton but what has that got to do with anything? In some cases many othe "contributors" are employees of the company.

          How exactly would these contributors attempt to "damage" companies using their work? Such a statement indicates a lack of understanding of the GPL.

          In many cases Anton "those making a living from software" and those "following open source principles" are one in the same.

          It's a simple proposition Anton. Here is this free GPL software. You may use it as can everyone but you must make sure it remains free. You may not make it proprietary in any way as that would violate the intent of the software creators. Simple choice here Anton. Use it with under the stated conditions or go write or license proprietary software as you see fit with all of the cost and implications that such entails.
          Tim Patterson
          • PMFJI, but...

            ... herein lies the conundrum that allowed the MSFT/Novell deal to go through:
            "You may not make it proprietary in any way as that would violate the intent of the software creators." The operative word here is intent. If the GPL does not specifically and explicitly prohibit or ban an action, any agreements entered into that do not violate the letter of the GPL are allowed.

            It seems to me that the whole argument/debate/debacle is over how MSFT was able to follow the letter of the GPL with Novell but still violate its (stallmans's) intent.

            Intent is such a murky area that I think this debate will not be settled even long after GPL 3 is approved. Indeed, I think that will be the real beginning of a concrete debate as opposed to idea(l)s being knocked around.
            Confused by religion
          • Doing damage.

            Let's say that Novell gains an advantage from Microsoft's agreement not to sue Novell customers for violating patents.

            And let's say that the GPL v3 were to apply to that agreement.

            And let's say that the contributors decided to force Novell to terminate the agreement with Microsoft, that company not agreeing to extend the Novell deal without specific agreement.

            None of these may be true, but I'm using the subject of the article discussed.

            In that case, Novell could be damaged by contributors to the product the company sells.

            A document as intentionally and carefully restrictive as the GPL is going to take away freedom of action on the part of individuals or organizations every time its provisions are applied.
            Anton Philidor
          • Damage? How about all the fanatics

            blasting Novell in public at every opportunity.
            No_Ax_to_Grind
        • Sounds like a skunk here

          Trying to make out that a rose stinks.
          Ole Man
      • You are wrong on a number of things.

        First, I do not dislike Linux. I have a Novell server sitting in the corner doing its job along side the Windows servers.

        The GPL however is something else and you are correct, I do not like it or its terms or the supposed "freedom" with a hundred strings attached. (Its either completely free or its incumbered, there is no middle ground on that one.)

        "The only question here is why do you care about the GPL or which version is preferred among creators of free software? "

        Because UNLIKE Stallman, I fully accept that its a part of the environment with my corporate customer base and am forced to deal with it.
        No_Ax_to_Grind