GNU General Public License v3 Draft Gets Public Airing

Published: January 24, 2006

by Timothy Prickett Morgan

Perhaps more than anything else, the GNU General Public License and the freedoms and protections it affords to open source software and the people who create it, has fostered the very open source software community that the founders of the various GNU programs had envisioned so many decades ago. But times have changed, and even as open source software has proliferated and become more commercially viable, the GNU General Public License v2 that was announced in 1991--the year Linux was born--is inadequate to the task of protecting developers and open source software.

That's why the Free Software Foundation, the brainchild of computer industry luminary and visionary Richard Stallman, has spent the past couple of years rethinking and reworking the GNU GPL license that governs so much open source software. The first draft of the proposed GPL v3 license was presented at a conference at Stallman's stomping grounds, the Massachusetts Institute of Technology, last week. Eben Moglen, general counsel for the Free Software Foundation for the past 15 years and also a professor at the Columbia University Law School in New York, was also on hand to walk the open source community through the updated GPL v3 license.

"In 1991, we released GPL v2 to apply it to our own software, and in the hope that other developers might wish to apply it to theirs," explained Stallman and Moglen in a statement accompanying the release of the draft of the new license. "Today, we are delighted that our software is being used by so many people around the world. We are just as pleased to see so many developers applying the GPL to their own programs. The process of revising the GPL affords an opportunity to everyone who uses, or wishes to use, the GPL to help us make it better. We invite all members of the community to join us in this effort."

When the Free Software Foundation asks for input, unlike many other organizations in the world, it really does want the input because while Stallman has a high opinion of his own critical thinking abilities (and rightfully so), he also knows that there are plenty of other smart people in the world who care as much as he does about the flowering of the open source software community. Other people may see areas where that new license needs to address and does not, or they may have more clever provisions for dealing with problems than Stallman and Moglen have thought up. This is the essence of a meritocracy, where right makes right, not might. In a way, this is very much a kind of intellectual jousting, only the stakes are very real. The GPL v3 license will be under public review for approximately one year, and is open to public debate through a Free Software Foundation Web site dedicated to the GPL v3 license.

With the GPL v3 license as proposed, the basic license has not changed from v2, but it has been clarified and extended in important ways. Under the GPL, anyone who develops software has the copyright protections of their governing home countries (and copyright law is fairly international and homogenous, as it needs to be in order to be useful), but they also agree to take copyright a few steps further and add so-called "copyleft" features to the software that require source code and any modifications to that source code to be distributed freely. If you make modifications to an open source program, the copyleft provisions means that you must also make your derivative work available for free under the GPL provisions.

A new GPL license is necessary for a number of reasons, they explained. First, there has been a proliferation of other open source software licenses, which in many cases the GPL must co-exist with. There are also new threats to open source software in the form of patent retaliation both within the open source community and between vendors of commercial software and creators of open source programs. Just as Stallman said 15 years ago with the GPL v2 that the granting of patents on software was illogical and dangerous, he is throwing up the caution sign with regard to Digital Rights Management (DRM) in the GPL v3 license today. DRM, Stallman says, has emerged as a means to prohibit the use of software, including open source programs, and is seen as an anathema to the principles of open source software.

The GPL v3 takes on patents in the funny way that Stallman has of doing things: the license grants a worldwide, non-exclusive, royalty-free patent to any software under the GPL v3 license and any derivative works (which are covered by that license by default) as well as to redistributors of any open source programs. This provision is not aimed at trying to protect open source software from closed-source or freeware programs, but rather to keep various open source projects from suing each other on patent grounds. (Imagine if a Linux developer could claim a patent on some new technology and then sue a downstream developer or distributor of this Linux implementation for not using this patented code in its Linux distribution?)

The document explaining the rationale behind the license changes with the GPL v3 license is relatively short and speaks in plain language about the issues and how Stallman and Moglen are trying to address them. It is often funny, if you like stubborn idealists who put their idealism into democratic practice.

"Our draft of GPL v3 makes clear that we do not entirely share the current enthusiasm of others in the free software community for including broad forms of patent retaliation in licenses," the document explains. "Theorists of patent retaliation have, in our view, overestimated the deterrent value of denying access to free software. In this area, we have chosen instead to follow our general guidelines of limiting freedom only where demonstrably necessary to protect freedom, and of doing no more in granting permissions than permissions can be expected to accomplish."

Another favorite line: "Our aim is, and must be, the abolition of DRM as a social practice. Anything less than complete victory leaves the freedom of software in grave peril." You have to admire the clarity and the tenacity of that position. And this will put companies employing open source technologies that also love DRM to be put in a serious quandary. Which is exactly the position Stallman wanted to put them in. DRM is being used to restrict access to software in a way that the Free Software Foundation sees as limiting the spread of open source software, so the new license has a provision that the actual DRM components of any system that is being used to manage the rights of open source software has to itself be distributed with the open source software. (I don't know about you, but I laughed when I read this, since it is so diabolically simple.) Basically, if you want to try to lock down open source software using DRM technology, the license says you have to distribute the machine that makes the keys. Stallman is throwing down the gauntlet to the content industries of the world: stop trying to use DRM technology to protect your content and start using plain, old-fashioned copyright law.

Just like the software industry should be doing instead of using patent law to wage war. Software should never have been given patent protection. From a logical standpoint, patenting software is idiotic--as if the expression of an idea could be patented as the idea itself, thus quashing all innovation. Such patents only to benefit the few powerful software suppliers, and to be brutally honest, even the big players "steal" patents, then fight long legal battles, and then cross-license their patents to get out of the legal fight. This just ups the ante for being in the software racket. It doesn't make it right. I agree with Stallman that copyright protection is all that software ever needed, and I admire the copyleft provisions he added to promote open source software.