| Analysts, legal eagles dissect new GPLv3 draft |
Mar. 29, 2007
 The new GPL draft's digital ink hadn't had time to dry before everyone began voicing their opinion on it. Some observers hate it, while others think this version represents a significant step forward in making the GPLv3 palatable both to the Linux community and big business.
When it comes to disliking the latest GPL draft, it would be hard to find someone who felt more strongly about it then ACT (Association for Competitive Technology) executive director Morgan Reed who said, "The newest draft of the GPLv3 is clearly designed to build unscalable walls between open source and proprietary software. The rest of the world has decided to make software more interoperable, but Stallman and the FSF are focused on ideology rather than the practical concerns of users."
ACT is a Washington, DC lobbyist firm representing, according to the company, small business innovators. Reed continued, "It started with four simple freedoms, but the new GPL looks more like the US Tax Code. The new draft no longer just defines freedom; it is designed to punish companies and business models that Richard Stallman just doesn't like. Novell, Microsoft, TiVo, Nokia, and Linux-based phone manufacturers are all in the crosshairs. In fact, the new version is now so complex and legally-squishy that it is essentially a full employment guarantee for intellectual property lawyers."
John Ferrell, founding partner of Carr & Ferrell LLP, a Silicon Valley intellectual property law firm, would agree that with this draft the GPLv3 is getting more complicated. "With each revision, the once 'GPL for Dummies' is quickly requiring a law department to interpret and understand," he suggests.
However, Ferrell also feels the GPLv3 is "becoming more sensitive to the legal needs of mainstream software manufacturers." Far from punishing companies, he sees this draft of the GPLv3 "protecting companies from liability associated with accidentally incorporating protected software, as well as protecting proprietary software improvements by defining the separation of GPL and non-GPL works."
In particular, Ferrell believes this draft "does a nice job of protecting GPL licensees from being burdened by upstream patents, while at the same time providing multiple options that protect patent owners from unknowingly donating their patents to the public by inclusion of patented technology in the licensed software."
Michael Graham, an attorney with Marshall, Gerstein & Borun LLP , the Chicago-based IP (intellectual property) firm, however, sees this GPL revision getting in the way of business. "Although proposed under the guise of updating the GPL and attempting to create a more universally applicable open software license, the GPL3 may in fact create a backlash sufficient to decrease support for and use of the GPL."
Graham explained, in language that's remindful of Reed's position, that "The present version would prevent the sort of interplay between open software and commercial ventures that utilize patent protection which has helped increase the importance of open source software and encouraged cooperative development. GPL3 merely reflects and appears designed to subject open source developers to the philosophies of the Free Software Foundation, rather than address and provide solutions for the expansion and interaction between open source and copyrighted or patented software."
In fact, Graham predicts that "In attempting to proselytize through this new form agreement, Stallman and the free software foundation may in fact drive a split between free software developers, commercial developers, and other open source developers."
Allonn Levy, an attorney with Hopkins & Carley, a San Jose, Calif.-based law firm, added that the proposed GPLv3 would add more conditions on companies, like TiVo, that use GPLed code within devices. "The new draft seeks to increase restrictions on the use of GPL software used in consumer products that employ technical means to prohibit further modification by consumers. In essence, the drafters are seeking to ensure that if businesses choose to employ GPL software in a device, the businesses cannot then technologically 'lock' that device up and prohibit users from further modifying it -- it seeks to guarantee that if a device uses GPL software the consumer will be permitted to 'pop open the hood and tinker with the engine.'"
Will embedded companies be willing to put up with users being able to modify their devices? "For businesses using software under the GPL, this means continued vigilance in weighing the benefits verses the costs of using that software. As with any license, at the end of the day, businesses need to ascertain whether what they are giving up is worth it for what they are getting," concluded Levy.
Mark F. Radcliffe, a partner at the giant international law firm DLA Piper and general counsel to the OSI (Open Source Initiative), had several observations to make about this draft.
Radcliffe believes big businesses will like the idea that "The new 'general' patent license is now limited to distributors who modify the software. The prior draft granted a patent license solely upon distribution. This change will remove a major concern for large patent holders such as HP."
The Microsoft/Novell provisions in this draft, which seek to prevent companies making patent pacts that exclude other companies and users, "are more complex." Radcliffe believes that the best thing Microsoft and Novell could do might be "to distribute all of the SLES (SUSE Linux Enterprise Server) certificates before the GPLv3 becomes effective: we could have a SLES land rush!"
Novell, itself, is continuing to watch and wait. "This is a draft for public comment. Novell is not going to offer a public interpretation on specific provisions of the draft at this time," said Bruce Lowry, Novell's PR director, in a posting on Novell's blog.
That said, Novell, according to Lowry, is "firmly committed to continuing the partnership with Microsoft ... If the final version of the GPL3 does potentially impact the agreement we have with Microsoft, we'll address that with Microsoft."
Concerning the Novell-Microsoft patent pact, Doug Levin, president and CEO of intellectual property software company Black Duck Software, worries that "the language seems to prohibit similar future deals but doesn't prohibit the actual deal that caused such discussion and concern. That puts other Linux providers at a disadvantage, since a similar relationship with Microsoft would not be allowed under GPL3. It's still unclear how that issue will play out."
Other Linux companies, notably Red Hat, have already stated that they would not make a patent deal with Microsoft.
Radcliffe also observed that "The DRM (digital rights management) provision itself has been modestly reduced in scope. However a major change is the limitation of the requirement to include encryption keys in 'Corresponding Source' to only consumer devices. This change is very important. It is difficult to determine if it will satisfy Linus Torvalds and the kernel developers."
In the past, both Torvalds and the core kernel developers have objected very strongly to the GPLv3. According to Linux journalist Stephen Shankland's blog, Torvalds is skeptical about this new draft, "but at least it's now 'I'm skeptical' rather than 'Hell no!'"
Radcliffe is also concerned that this draft doesn't address the issue of how to deal with combining programs that are under different versions of the GPL. This could lead to a situation where "Linux will face a challenge of dealing with modules that are under different, incompatible licenses."
For Linux, Radcliffe suggested that "One easy solution is for the Linux distributors to fork GCC and any other program switching to GPLv3 and maintain a GPLv2 licensed version. Or they could replace it."
However, "This problem will also arise outside of Linux where it may be more serious. The default provision of GPLv2 permits anyone distributing GPLv2 code to adopt another version of the GPL (unless, like Linux, they have specified a particular version of GPL). However, we have never had two versions of GPL available."
This means that there's a "risk is that a single project could fragment into multiple incompatible forks as various individuals shift to GPLv3 at different times (i.e. one person shifts to GPLv3 on version 3.2 of a project while another person waits until version 4.1: you will potentially have multiple incompatible versions of the project)," Radcliffe worried.
Levin wisely concludes that "Given the changes between drafts two and three, it is important for companies using open source software to follow this process." The GPLv3 debates are only going to continue.
-- Steven J. Vaughan-Nichols
Do you have comments on this story?
Talkback here
NOTE: Please post your comments regarding our articles using the above link. Be sure to use this article's title as the "Subject" in your posts. Before you create a new thread, please check to see if a discussion thread is already running on the article you plan to comment on. Thanks!
(Click here for further information)
|
|
|
7 Advantages of D2D Backup
For decades, tape has been the backup medium of choice. But, now, disk-to-disk (D2D) backup is gaining in favor. Learn why you should make the move in this whitepaper.
4 Legal Reasons to Control Internet Access
The Internet is obviously a valuable resource for many organizations. However, many are exposed to legal liability concerns because they fail to control Internet access. Learn if you're safe in this white paper.
Rapidly Resolve J2EE Application Problems
Whether you are in the process of building J2EE applications or have J2EE applications already running in production, you must ensure that they deliver the expected ROI. Learn how in this white paper.
Load Testing 2.0 for Web 2.0
There are many unknowns in stress testing Web 2.0 applications. Find out how to test the performance of Web 2.0 in this white paper.
Build Better Games Online
For the game infrastructure providers, life is complex. Making money from games has become more complicated. Why? Find out in this white paper.
Building a Virtual Infrastructure from Servers to Storage
This white paper discusses the virtual storage solutions that reduce cost, increase storage utilization, and address the challenges of backing up and restoring Server environments.
Gaining Faster Wireless Connections with WiMAX
Welcome to what is quickly becoming the hyperconnected world where anything that would benefit from being connected to the network will be connected. Learn more in this white paper.
Is Your Desktop a Security Threat?
The new wave of sophisticated crimeware not only targets specific companies, but also targets desktops and laptops as backdoor entryways into those business’ operations and resources. Learn how to stay safe in this white paper.
Increasing SAN Reliability by 100 Percent
Storage area networks (SAN) are a strong part of storage plans. Learn how to increase your reliability and uptime by 100 percent in this case study.
|
|
|
|
|
news feed