The draft of the version 3 of the GNU General Public License (GPL) has finally been released, and what a document it is! In general, the wording is clearer, tidier and tighter than version 2. The preamble is still as ideological as always (an in my opinion a tad superfluous). But the real surprise comes in the main text. Before its release, it was rumoured that the text would attempt to overhaul the protection of GPL software against software patents, but there was less talk about the amazing implication to digital rights management and technical protection measures. The new GPL could have a lot of implications for the future of open source usage in the entertainment industry. One of the most contentious sections is likely to be section 3 on DRM:

As a free software license, this License intrinsically disfavors technical attempts to restrict users’ freedom to copy, modify, and share copyrighted works. Each of its provisions shall be interpreted in light of this specific declaration of the licensor’s intent. Regardless of any other provision of this License, no permission is given to distribute covered works that illegally invade users’ privacy, nor for modes of distribution that deny users that run covered works the full exercise of the legal rights granted by this License.

In other words, the distribution of derivatives with works that contain DRM will be prohibited. The new draft also attacks the anti-circumvention measures in the WIPO Copyright Treaties by specifically stating that no work under the GPL shall constitute “an effective technological protection measure”, and it would therefore not apply for such protections.

Surprisingly, the new version is not as adamant against software patents as it was expected, perhaps as a reflection that some of the biggest open source and free software players in the United States are acquiring patents as well. The new draft maintains the licensing of patents for those who use the GPL that already existed in the older version (section 11 of v3). The licence prohibits distribution of the software by people who have initiated or brought patent suits arising from the software. This is a clever attack on software patents, it does not forbid people to apply for them, but it frowns upon enforcement. Strangely, the licence allows developers to add a stronger patent retaliation clause that is not incompatible with the licence. This clause is spelled out, but it is not really a part of the licence, it is just not incompatible with it. This is terribly confusing in my opinion, and bad drafting practice. The compatible patent clause states:

e) They may impose software patent retaliation, which means permission for use of your added parts terminates or may be terminated, wholly or partially, under stated conditions, for users closely related to any party that has filed a software patent lawsuit (i.e., a lawsuit alleging that some software infringes a patent). The conditions must limit retaliation to a subset of these two cases: 1. Lawsuits that lack the justification of retaliating against other software patent lawsuits that lack such justification. 2. Lawsuits that target part of this work, or other code that was elsewhere released together with the parts you added, the whole being under the terms used here for those parts.

The final verdict will undoubtedly come soon, but it seems clear that the GPL is becoming more restrictive, and I would not be surprised if larger enterprises stay away from the new GPL and favour other licences.

Categories: Open source

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