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Wednesday, May 23, 2007


Some Randomish Thoughts on draft 3 of GPL version 3

[This is a guest post, written by Brendan Scott, principal of Open Source Law, an ICT legal practice with a special focus on open source and customer copyright. Email: -- Catherine]

In March 2007, the Free Software Foundation (FSF) released the third draft version three of its General Public License [sic] (the “GPL”). There will be another “last call draft” prior to the licence text being settled. A final draft is scheduled for July 2007. The window for comments on this draft closes (on my calculation) on 27 May (US time) – so if you are interested in commenting now is your chance.

This version updates the previous GPL v2, which dates from 1991. To put this in context in 1991 the world did not have: Windows 95 or any later version (Windows 3.0 was released in 1990); the Internet (science departments in universities did); the World Wide Web; peer to peer file sharing; CD or DVD writers; Google or broadband. The technology landscape has changed substantially since 1991. In addition, we didn't have the TRIPS Agreement, the US did not have the DMCA, and Australia did not have the Australia-US Free Trade Agreement. Not only has the technology changed, the law itself has changed since the licence was last updated. GPL v3 is intended to update the licence to address some of these changes.

The wording of GPLv3 is determined by the FSF in consultation with the broader free software community. The FSF has engaged the Software Freedom Law Centre and, through them, other lawyers, to assist in the drafting (disclosure: the SFLC engaged me in relation to some aspects of GPL v3). The FSF has a public website through which anyone can provide comments. The FSF also maintains a number of committees who have reviewed and commented on the drafts. While difficult to prove, I hazard it would be fair to say that GPL v3 has been subject to wider public input than any other licence in the history of the world.

The main aims of the new draft are fundamentally the same as those of GPL v2. That is, to protect users' freedom (“Our primary concern remains, as it has been from the beginning, to give users freedom that they can rely on” - from original process definition document). This draft has attempted to be pragmatic while being consistent with this aim. This emphasis on practicality can be seen in, for example, the limiting of some obligations to “User Products” – that is, the obligations only apply in circumstances where the drafters expect that there will be an inequality of bargaining power between the supplier and the acquirer.

Some of the issues that GPL v3 addresses include “Tivo-isation”, where a device manufacturer locks down a device so that, while the user has the theoretical freedom to modify the device, they do not have the practical ability to; TPM/anti-circumvention legislation, that is, that free software should not be suborned to defeat others' freedom; software patents; and internationalisation.

The final issue to be addressed by GPL v3, and the reason this draft has been delayed, is the use of software patents to undermine free software. In November of 2006, Novell and Microsoft announced a deal under which both Microsoft and Novell agreed not to sue each other's users for patent infringement. The FSF announced it would be extending the drafting deadline to specifically address this patent agreement. The overarching scenario is set out by Eben Moglen in a talk he gave at the recent Red Hat Summit (references below).

The GPL v3 has harnessed the tendency (at least prior to the decision of the High Court in Stevens v Sony) of the courts to give overly expansive readings to the scope of copyright law. GPL v3 is drafted to implicitly adapt to differing interpretations as to the scope of the law. The new terms it introduces (“propagate” and “convey”) now attempt to cover the field of rights and do so in a way which is jurisdiction neutral (in my view, some term better than “propagate” could probably have been found). It is on these expansive readings (eg of the authorisation right) which will permit GPL v 3 to have a broad reach.

By and large draft 3 of GPL v 3 has been well received, with many former critics warming (or, at least not objecting) to the revised wording. While there is some criticism of the text, I have not noticed any of substance against this draft to date. That said, they have failed to rectify my pet annoyance with the licence – each of its paragraphs should be numbered.


Moglen video:
Transcript (apparently) here:


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