GPL 3 – The good, the bad, and the patent protected

Editor’s Note: Deana A. Labriola is a member of the Technology Practice Group of Ward and Smith, P.A.

Version 2 of the General Public License ("GPL 2") has led a long and prosperous life in the software community since its release in 1991. It has been embraced by software developers and used more than any other free software license. Proponents of open source software continue sharing and allowing modification to code because such proponents think it is a superior way to create, develop, and improve code.

Most broadly, all versions of the GPL allow developers to copy, create, and modify code and freely redistribute it to other users who also may freely modify and redistribute it. However, on June 29, 2007, the Free Software Foundation released the hotly-debated final draft of GPL 3. GPL 3 had been several years in the making.

The goal of GPL 3 is to bring the concepts of GPL 2 into the modern era by addressing certain of GPL 2's loopholes and omissions. In large part, GPL 2 did not provide patent protection for software because it wasn't needed. At the time of GPL 2’s release in 1991, it addressed proprietary software head-on by its mere existence. The GPL was true free software and required downstream users who modified, developed, or used it to maintain its free nature by providing all source code downstream. However, GPL 2 no longer addresses the modern world's problems.

GPL 3 and Patents

Not surprisingly, proponents of free software licensing are opposed to the general use of patents on software because patents, by their terms, restrict the free flow of software and derivative software among users by placing restrictive protections on source code. GPL 2 prevented a user from obtaining a patent license to a GPL program unless the license benefited others who used the program – a share-and-share-alike protection for all users. And while this protection has been retained in GPL 3, the latest draft goes further.

One of the big debates surrounding the final release of GPL 3 was its treatment of patents. Under GPL 3, if a person conveys a work under the GPL, all recipients of such work are extended a license to use any patented work necessary to exercise the recipient's rights under the GPL. In essence, GPL 3 carries with it an explicit patent grant, meaning that any contribution of software grants downstream users a license to use any patents applicable to that contributed software.

Indirectly, GPL 3 assures that all downstream users are granted a license to use any patented work in a GPL-covered program by including a provision that prevents any user who holds a license to a patented work under the GPL from suing to prevent a downstream user from exercising rights received under the GPL. If a suit is filed, the plaintiff's rights automatically will be terminated under GPL 3. This provision aligns the idea of free software with patents. In short, users and developers may create or modify works without fear that another contributor will sue for patent infringement.

The Microsoft-Novell Problem

In a bold move, GPL 3 also implicitly addresses a recent deal between Microsoft and Novell by prohibiting certain patent indemnification arrangements found in licensing or patent agreements between parties. Microsoft agreed not to sue Novell’s customers for patent infringement for such customers’ use of certain Microsoft products, and vice versa. The Microsoft-Novell arrangement also provides payment from and to each other based upon how many of each party's customers agree to such no-sue provision.

GPL 3 attempts to block this type of behavior through a provision that states if a software patent holder (like Microsoft or Novell) provides patent indemnification protection to an affiliate or partner's customers (as occurred in the Microsoft-Novell deal), then such patent holder must provide the same patent indemnification protection to all other downstream users.

This provision is meant to block the very type of deal entered into by Microsoft and Novell. However, whether as a self-preservation tactic by proponents of free software, or simply as a result of political pressure, the final version of GPL 3 actually grandfathers in the deal between the two companies. The Microsoft-Novell deal stands, but all future patent holders using a GPL program cannot enter into a patent indemnification arrangement without providing the same protections to all other users.

This provision is particularly interesting because several large patent holders, like IBM, Novell, and HP, are also active open-source users. Despite grandfathering in the Microsoft-Novell arrangement, the drafters of GPL 3 explicitly prohibited future arrangements of this type and, by doing so, made their opinion about patent indemnification arrangements quite clear.

Conclusion

The storms seen after several of the draft releases of GPL 3 did not reoccur when the final version was released. Only time will tell if companies will transition from GPL 2 to GPL 3 in a relatively uninterrupted manner. While GPL 3 takes steps to integrate open source software with proprietary software in the modern era, its targeting of certain practices and companies may end up alienating the very users it is trying to retain.

© 2008, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Deana A. Labriola practices in the Technology and Business Practice Groups, where she advises small and large technology companies on all facets of their operations and business. Comments or questions may be sent to dl@wardandsmith.com

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.