GPL 'Last Call Draft' Removes Language Threatening to Novell

After the publication yesterday of what the Free Software Foundation terms as a "last call draft" - a final version for comments and revisions by the public - of the next version of the General Public License, Novell stated on its corporate blog that it's pleased to discover that draft language it believed would threaten its Linux business has apparently been removed.

A modified paragraph in Section 11 of the latest GPLv3 draft would appear to prohibit an individual or company from being licensed to use or distribute free software if it has paid a third party for what it calls a "discriminatory license" - an agreement not to exercise some part of the GPL in exchange for the right to use material that may be patented within the free software.

That clause would appear, on the surface, to address Novell directly, which did exchange money with Microsoft (though Microsoft may have exchanged more) in return for a promise by Microsoft not to sue Novell's SUSE Linux customers.

But that paragraph contains the following clause: "...unless you entered into that arrangement, or that patent license was granted, prior to 28 March 2007."

This effectively "grandfathers in" the current Novell/Microsoft agreement, meaning that the GPL would effectively concede that it applies only to the GPLv2 version that was in effect last year. That clause was introduced during the previous round of discussions, and has evidently withstood the debate it triggered.

"Nothing in the last call draft of GPLv3 suggests that the final version of GPLv3 will inhibit Novell's ability to include GPLv3 technologies in SUSE Linux Enterprise, openSUSE, and other Novell offerings as these technologies become available," writes Novell PR manager Kevin Barney late yesterday. "We note that the language which grandfathered the Novell-Microsoft agreement remains in the draft. We will continue to distribute Linux and other GPL'd technologies. All of this is good news for our customers."

Excised from the current language is a description of a "patent license" as including "a covenant not to bring suit for patent infringement." This would likely have been the first time that word "covenant" - introduced to many by way of the Novell + Microsoft agreement - was invoked by the GPL. In its place is a sentence that more broadly defines the grant of a patent license as including an agreement by the granting party not to enforce its patents against the licensee. The new language may perhaps no longer be construed to imply that any party trying to enforce its patents must have some ulterior motive to do so, perhaps to undermine the GPL.

A footnote in the FSF's latest Rationale document explains, "The definition of patent license has been made more concise, and we have clarified what it means to 'grant' such a patent license, as used in the sixth and seventh paragraphs of section 11, given that patent non-assertion promises falling under the definition of patent license might not be stated as a formal grant of patent rights." In other words, the FSF concedes that a grant of rights to use patented technology, and a promise not to enforce patents against a licensee, may be entirely independent business transactions.

In a personal essay that was reprinted on Groklaw, FSF President Richard Stallman says that GPLv3 does try to address the issue of Microsoft extending a covenant to some Linux users and not to others.

"Microsoft wants to use its thousands of patents to make GNU/Linux users pay Microsoft for the privilege, and made this deal to try to get that," Stallman writes. "The deal offers Novell's customers rather limited protection from Microsoft patents. Microsoft made a few mistakes in the Novell-Microsoft deal, and GPLv3 is designed to turn them against Microsoft, extending that limited patent protection to the whole community. In order to take advantage of this, programs need to use GPLv3."

The provision to which Stallman refers now reads thus: "If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license providing freedom to some of the parties receiving the covered work authorizing them to use, propagate, modify or convey a specific copy of the covered work to any of the parties receiving the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it."

The presumption here is that the license's grant of the right to use and redistribute is non-exclusive to the licensee, thus any provisions the licensee grants to any one body of other licensed users or distributors must extend to all licensees. Of course, that extension would only be applicable for software whose licenses are upgraded to version 3. As Stallman states, upgrading is an option for license holders and not compulsory, though he does strongly advocate that licensees do so.

"Change is unlikely to cease once GPLv3 is released," he warns. "If new threats to users' freedom develop, we will have to develop GPL version 4. It is important to make sure that programs will have no trouble upgrading to GPLv4 when the time comes."