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New GPL Version May Include Patent Retaliation Provision

By Jennifer LeClaire
Sep 7, 2005 9:08 AM PT

While the open-source license covering the Linux operating system is not scheduled to be released for public comments until early next year, there is already speculation about how some of its provisions could impact developers.

New GPL Version May Include Patent Retaliation Provision

Specifically, the General Public License (GPL) version 3, a draft scheduled for release in January 2006, could contain a patent retaliation clause. That clause would prevent a company from redistributing a product if it were accused of infringing on free software patents.

The GPL could also contain a clause that would penalize companies for using copy-restricting technologies. These potential clauses are mere speculation at this point, but legal experts said one thing is clear: patent issues surrounding the GPL need to be cleared up as commercial software vendors embrace open-source technologies.

Mainstream Issues

"Historically, the open-source movement was viewed as a radical fringe within the software world. Open source was an idealistic philosophy that software should be free. It was a cultist type movement," James Gotto, an attorney with the law firm of Pillsbury Withrop Shaw Pittman told LinuxInsider. "That has changed into a mainstream movement with a significant part of the commercial world adopting open source."

With mainstream status comes mainstream issues, namely patent issues. Gotto said perceived or real, the GPL license needs to resolve issues like the patent retaliation. One of the big questions is whether or not a a patent holder can enforce his patent against others downstream that are using open-source licenses.

"A cross-license agreement between two companies won't give rights to a third party," Gotto said. "The existing GPL license says that if my company can't grant you the rights that I have under a patent, then my company can't use the open-source software. This needs to be cleared up."

Other Proposed Changes

The public debate over GPL version 3.0 is expected to include comments from 150,000 people around the world. The GPL should end with a revamped and ready version 3.0 by early 2007.

Other proposed changes to the GPL include resolving incompatibilities with other licenses, and accommodating Web services. There is also the possibility of dealing with wikis in GPL version 3.0.

Incompatibilities have led companies to develop their own open-source licenses. Sun Microsystems with its Common Development and Distribution License is one recent example.

"Compatibility is a huge issue," Gotto said. "If you take open-source software under the GPL and redistribute it with or without modification, you have to do it under the same terms of the GPL. You cannot impose additional restrictions on somebody."

Analysts predicted we may also see clarification on static versus dynamic linking, an area over which there has been considerable uncertainty.

Under the current version of the GPL, if you use an open-source program with a proprietary program, which analysts said is quite common, then a question arises as to whether that open-source product has been incorporated into the proprietary product.


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