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

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.