With the release of the most recent discussion draft today, one thing is immediately clear: this third version of the General Public License can be simply written “GPL v.” – where “v” stands not for “version” but for “vendetta.”
There’s little doubt that this GPL 3 draft is a vendetta against the patent non-assertion agreement we saw in the Microsoft and Novell deal. But it is also aimed at the use of technological protection measures like digital rights management. This may not upset the fundamentalists at the Free Software Foundation, but here’s something that I think will concern them: GPL code will become more isolated and less relevant in the technology marketplace.
Turning the Four Freedoms into the Ten Commandments
The GPL 3 draft is no longer just about protecting the four freedoms. Instead, it preaches about what can’t be done with software – thou shall not use DRM, thou shall not partner with proprietary software companies, etc. The draft contains provisions that block the use of anticircumvention technologies and patent non-assertion agreements. It’s the patent provision that attempts to strike a dagger at the heart of the collaboration between Microsoft and Novell.
According to the new GPL Vendetta -
Your permission to convey a covered work terminates if you are a party to an arrangement under which a third party grants, to any of the parties who receive the covered work from you, a patent license (a) in connection with a specific copy of the covered work, or (b) primarily for and in connection with a specific copy of a product or compilation that contains the covered work, if the patent license does not include within the scope of its coverage…the rights that are specifically granted to recipients of the covered work under this License.
The new GPL specifically tries to prohibit deals like the
Microsoft and Novell collaborative arrangement. Under GPL Vendetta, a deal like
Microsoft’s legally binding promise not to assert its IP rights against Novell’s
SuSE Linux would prevent Novell from continuing to distribute SuSE – and have
the effect of putting Novell out of business.
Interestingly, the draft does include a grandfather clause for the Novell Microsoft deal itself – but even that may not hold up over the long haul. The original deal can work, but if SuSE were to add a new GPLv3 based feature that wasn’t covered under the original agreement, it could reduce the original deal to ashes.
GPL 3 Elevates Code over Consumers and Developers
If this seems draconian – well, it is. Richard Stallman’s Free Software Foundation is positioned to create a morally absolute position on “right and wrong” when it comes to software code. They believe that believe that community is king—or at least, the right kind of “community.” But this new iteration of the GPL creates a gated community to the detriment of the community as a whole.
Let’s take Microsoft’s non-assertion agreement, which legally prevents Microsoft from asserting its patent rights against individual contributors to OpenSUSE.org whose code is included in the SuSE Linux Enterprise platform, including SuSE Linux Enterprise Server and SuSE Linux Enterprise Desktop. In a previous blog post, I discuss how this arrangement helps Novell’s OpenSUSE.org developers.
Similar deals could be done with other companies besides Novell. But GPL Vendetta puts the kibosh on non-assertion agreements unless it is for all GPL code. This blanket immunity is impracticable, and Stallman knows it. Consumers will lose out in this sort of arrangement.
There’s No Reason to “Upgrade” to GPL 3
Technology consumers are notorious for their desire to upgrade to the latest version of a product. When it comes to GPL Vendetta, software developers may want resist the upgrade urge. The new GPL is more complicated and harder to administer than the previous version.
The patent non-assertion clause is just one of the controversial new additions. Another new provision is Section 3, which prohibits the use of technological protection measures like DRM. Specifically:
When you convey a covered work, you waive any legal power to forbid circumvention of technical measures to the extent such circumvention is effected by exercising rights under this License with respect to the covered work, and you disclaim any Intention to limit operation or modification of the work as a means of enforcing, against the work’s users, your or third parties’ legal rights to forbid circumvention of technical measures.
Again, this is another example where GPL Vendetta strays from open source proponent into anti-intellectual property ideology. Given the legal cloud that will linger over the patent section, GPL proponents should just stick with version 2.
Or migrate to another open source license. The FSF doesn’t have a monopoly on community licenses, and there are plenty of choices for the open source market.
A Bonfire of the Vanities?
That’s the question – will anyone adopt this licensing model? Because the GPL is supposed to be about free as in freedom, not V for Vendetta.