The second draft of the GNU General Public License version 3 is now available to the public. I have spent some time this weekend reading through the new draft and comparing it with the original. You can find some of my earlier opinions about the first draft in this SCRIPTed article. The new draft has been released alongside some useful information about the drafting process, including an audio comment by Eben Moglen and a document explaining the changes. The draft comes after three international conferences, thousands of comments on the website and hundreds of hours of committee discussions.
The text has been tidied and compressed, making the new draft much more readable and easier to follow. However, the end result is still a long document, but it is good to see that there are some efforts in making the license as user-friendly as possible. It must be remembered that the primary audience of the GPL is not the legal profession, the recipients are software developers.
One of the stated goals of GPL version 3 has been to make it compatible with international standards set out in the Berne Copyright Convention, as it has been recognised by the drafters that the licence has international use, but earlier versions were designed with American law in mind. In my opinion, the most welcome change to the new draft has been to get rid of some American-specific terminology by using international definitions. This applies particularly to the term “derivative work”, which has specific meaning in American law as a work based on another. However, derivative work has other meanings in other jurisdictions (such as the UK), so the term has been a sticking point for international lawyers and academics since earlier GPL versions. The new draft uses the term “modified”, defined as “versions in which material has been translated or added“.
A lot of re-drafting has gone into Section 1 with regards to source code. This was perhaps one of the most complicated sections, and it has been considerably cut down to make it easier to understand. The spirit of the section still remains, as it requires the release of keys in cases in which the modified work is encrypted. This was controversial originally, and by reading the new draft I believe that it is still controversial. Although the text has been made clearer, the keys still have to be released, which could be a sticking point with some developers.
The similarly controversial section on Digital Rights Management has also been modified, which is a very welcome development in my opinion. The text used to read: “Regardless of any other provision of this License, no permission is given to distribute covered works that illegally invade users’ privacy, nor38 for modes of distribution that deny users that run covered works the full exercise of the legal rights granted by this License.” The new draft now reads: “Regardless of any other provision of this License, no permission is given for modes of conveying that deny users that run covered works the full exercise of the legal rights granted by this License.” This is another welcome change, as the mention of privacy was redundant and could produce legal challenges in jurisdictions with restrictive privacy protection legislation.
Another interesting change with regards to DRM is that the draft has added some wording to the previous definition of technological protection measure. The old draft stated that: “No covered work constitutes part of an effective technological protection measure…” This was initially designed to excludes all works distributed under the GPL from the anti-circumvention measures in the WIPO Copyright Treaty (WCT) by specifically stating that the licensed software shall not constitute “an effective technological protection measure”, and it would therefore not apply for such protections. However, this was extremely confusing to those who were not familiar with the legal terminology and the origin of the definition, as it can be seen in the heated exchanges generated by this paragraph in the comments section. The new draft states that “No covered work constitutes part of an effective technological “protection” measure under section 1201 of Title 17 of the United States Code.” This makes it evident that what the paragraph is covering is the legal definition of “technical protection measure” found in international treaties and national legislation. Specifically, section 1201 of the U.S. Code is the DMCA anti-circumvention measures provision. This is useful, but if the licence wants to be really international, why not mention the WIPO Copyright Treaty instead?
The most innovative feature of the draft is that the Lesser GPL (LGPL) will now become an extra permission of the GPL, which helps to make the licensing process simpler.
I will continue with the analysis in the following days, but my initial opinion is that I am extremely pleased with the direction that the draft is taking. While it still has some of the problems that I noted in the first draft, the FSF must be commended for the amazing effort placed in democratising the discussion and involving the open source and free software community into the drafting process.