New GPLv3 draft takes new approach to patents, lock-down technologies

>Similarly, if software that you know falls under a patent license is distributed, then you must not only make the source code available and disclaim the patent license for it, but also extend patent protection to downstream recipients.

OK...now that's weird.

Disclaimer...I haven't been able to take time to read all the gory details and discussions around them, but that line has me twisted up in knots...You must both disclaim the patent license and extend the patent protection? How do you do that? The mind must not be sharp this morning because that line sounds like it contradicts itself.

As to the Novell deal...

With the patent license definition in place, the license may indeed prevent deals exactly like the Novell-Microsoft deal. How many variations on that deal actually get covered will depend mightily on the courts.

For example, what if the Novell-Microsoft deal had no per-copy payments to Microsoft? Would the deal still be related to "the extent of" Novell's Linux business?

What if it were transacted on a net-value basis? On net, Microsoft paid Novell hundreds of millions of dollars. Novell didn't actually pay Microsoft anything. If the deal were done as a lump sum payment from Microsoft to Novell, it doesn't seem like the new prohibition would apply.

At any rate, it looks like they've exercised restraint and done what they could without killing the patient. That deserves kudos.

I've read the entire rationale and I must say that I like draft 3 a lot better than draft 2. I have one big point of comment though (emphasize mine):

You may not convey a covered work if you are a party to an ar- rangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a patent license (a) in con- nection with copies of the covered work conveyed by you, and/or copies made from those, or (b) primarily for and in connection with specific products or compilations that contain the covered work, which license do es not cover, prohibits the exercise of, or is conditioned on the non-exercise of any of the rights that are sp ecifically granted to recipients of the covered work under this License

Why the bolded section? That doesn't protect us from patent trolls. Trolls don't distribute software themselves. I fail to see what kind of GPL appropriate patent arrangement exists that would benefit from the bolded section.

sander -

I think the drafters may have been facing reality.

My original concern over statements coming out of RMS and Moglen and co was that they would overreact to the Novell deal, and try to make the license do more than it reasonably can do without getting in its own way. After all, the GPL promotes freedom only to the extent it gets used.

The new language indicates that common sense has prevailed. Hooray for everyone! They have tightened things up usefully and, so far as I can tell with the very cursory looks I've given, have created a license people can live with.

I'm afraid that instead of over-reacting they have created a clause that is too easily worked around. All MS has to do is transfer some patents to a shell company that doesn't distributre software themselves and the deal goes on virtually unchanged.

I just don't see the need for the "that is in the business of distributing software" piece. The license would be just as nicely tightened up without that clause, without being too broad.

sander -

I must get home now, but when I do, I will take a closer look at all of this and see if I can come up with $.02 to offer.

Thanks dino :-)

What I would really appreciate is an example of a patent agreement that is desirable (or at least condonable) for Free Software that would be impossible if the bit I bolded was removed.

I'd like to see some "What happens if" scenarios answered regarding that section on patents during the review period. It's obviously been heavily twisted to fit some legalese but doesn't have as thorough a "This is what the legalese accomplishes" explanation for non-lawyers as the other changed sections.

From the Linux.com interview with RMS:

Quoting:The trick, he says, was to write the language in Section 11 so that it didn't exclude such agreements as [...] settlements with what he calls "patent trolls" -- companies that acquire patents and earn income through litigation or the threat of it.

I *think* I get RMS's reasoning. Without the bolded section I highlighted above, a patent troll could easily cripple an Open Source company. But to counter that: A company shouldn't settle with a patent troll. They should fight them and have the patents invalidated.

sander -

I haven't had time to go through everything yet, but that sounds reasonable. One of my early concerns was that a carelessly drafted provision would allow somebody to effectively make it impossible for anyone to distribute GPL'd software.

It's the old problem -- drafting to prevent one thing without opening the door for something ten times worse. Sometimes you just do what you can do.

Quoting:Reluctantly, he agreed to include a final sentence that would grandfather the Novell-Microsoft agreement, but he says, "I hope it won't be necessary." Whether that sentence remains, he says, depends on the community feedback received on the draft.

The draft is very very good (not excellent yet). The guys did a fantastic job. The big concern was Kernel developers wont accept it, but all indication is they will.

Many doubter kept saying it is going to ruin the GPL and impact FOSS in a negative way, the contrary happened.

Many doubters didn't trust RMS or Moglen, they suspected them in sabotaging and antagonizing commercial software companies and trying to alienate them, all indications show that RMS & Moglen are sincere and doing their best to keep software freedom alive and well not by granting it to all users, but also by protecting from hostile thieves and hoodlums.

The quote above shows how cautious but fair they are. Even Novell is getting a fair chance by keeping that clause for the community to decide on Novells destinay.

I believe some doubter should eat their words and apologize for some of the statements they made. Yes, you know who you are. It takes a "big" person to do that.

>I believe some doubter should eat their words and apologize for some of the statements they made. Yes, you know who you are. It takes a "big" person to do that.

If you're referring to me, you've got your facts wrong.

I have repeatedly said that I expected reason to rule and that the final draft would be less all-encompassing than some of the talk that preceded it.

@Abe,

If you're referring to me, I'm not going to eat my words - Section 11 would not prevent the MS-Novell Deal from occurring - the deal was not, and is not, a patent licensing agreement. Therefore Section 11 doesn't apply. Nor is the MS-Novell conditional on either party giving up any enforcement rights. MS did *not* give up the right to sue for patent infringement, and neither did Novell. They only agreed that they'd sue each other and not their customers. Therefore, Section 11 again doesn't apply.

In other words, Stallman and Moglen failed to do what they claimed from the outset that they would do: they failed to word the GPL so as to put the kibosh on the MS-Novell Deal and prevent similarly structured deals from happening in the future.

Abe, Darren does have a point. Others have pointed out that theMS-Novell deal has effectively been grandfathered in, but RMS hopes that won't be necessary in the final draft. Iow, he's hoping to be able to drop the line that does that.

Don,

Even without that "grandfather" clause, the deal stands unimpacted. It's *not* a patent license deal (which is what Section 11 is about and why it's not in violation of Section 7 of GPL v2) and the deal is not conditional on the non-enforcement of rights by either MS or Novell. If MS wants to sue for Novell's infringement of their IP, they're still free to do so, even under the current terms of that convenant.

Darren: The GPLv3 3rd draft carries it's own definition of patent agreement, which would cover the MS-Novell deal:

Quoting:For purposes of the following three paragraphs, a "patent license" means a patent license, a covenant not to bring suit for patent infringement, or any other express agreement or commitment, however denominated, not to enforce a patent.

@sander,

It is NOT a covenant not to bring suit for patent infringement - under this agreement MS can sue the pants off of Novell for patent infringement.

I think the Novell deal falls under the "any other express agreement or commitment, however denominated, not to enforce a patent" part. It also depends on the wording in the MS-Novell contract, which we don't have.

Eben Moglen has seen the contract (under NDA). I trust he's made sure that the current draft does cover the MS-Novell deal.

But there is *NOTHING* preventing MS from enforcing its patents - and Novell has publically stated that there is *NOTHING* in the current draft of GPL that would impact its Linux business. But we shall have to wait and see, until the final version is released ... another six months.

Darren: Did you comment on the draft? Check http://gplv3.fsf.org/comments/gplv3-draft-3.html

I left a comment on the "that is in the business of distributing software" clause.

Darren,

Like sander said, why don't you comment on the draft? I am sure some one will clarify the relevant points much better than I can. IANAL

Quoting:But there is *NOTHING* preventing MS from enforcing its patents

That is for sure, MS can do whatever they want, they have the funds to sue any one for anything. The point though is whether they can win at the end or not and what harm they will bring upon themselves when their bogus patents are nullified or invalidated.

Let's wait and see how MS is going to react or respond with respect to GPL3 when it is approved and adopted by most FOSS developers.

edited: I am sure you are not going to be convinced easily, and I guess it is going to take a ruling in court to convince you. I have no idea when that would happen. We might have to wait for a very long time to see that unless MS is getting too threatened.