There are more than 40 different open source and free software licences in use, but the General Public Licence (GPL) is the most widely used. The Linux operating system is just one example of software licensed under the GPL. Yet Linux may not use a new version of the GPL now being drafted, and some of those who use it for other software are also hesitating.

The current version of the GPL, Version 2, was created in 1991. According to the Free Software Foundation, which developed the licence, free software development, use and distribution have changed tremendously in that time and the licence needs to be revising to take into account some of those developments.

In particular, GPL Version 3 contains new language dealing with digital rights management and software patents.

The new licence forbids the use of DRM to limit the operation or modification of the software covered by the GPL. This could affect companies such as TiVo, which uses Linux on its digital video recorder, but blocks any version of the operating system but the one it distributes from working on the hardware.

The draft of GPL Version 3 also forbids anyone who licences software in the GPL from asserting patent claims “in the covered work” against other licensees. The Free Software Foundation did not respond to requests for comment.

Russell McOrmond, an independent Ottawa-based consultant who follows open source software, said the licence needed updating to address the idea of software patents, which was “a relatively new bad idea” when Version 2 of the GPL was written and has now “evolved into a full-blown bad idea.”

Feathers ruffled
But the anti-patent provisions have ruffled a few feathers, notably at Hewlett-Packard Development Co., which continued to express concern about the issue even after the second draft of the new licence modified the language somewhat.

“HP had hoped that the second draft would clarify the patent provision such as to ease concern that mere distribution of a single copy of GPL-licensed software might have significant adverse (intellectual property) impact on a company,” Christine Martino, vice-president of HP’s Open Source and Linux Organization, said in a prepared statement the company issued shortly after the second draft appeared. “Unfortunately, the concern lingers in draft 2.”

McOrmond said it appears HP is concerned that licensing software under the new GPL might limit the company’s ability to exploit its patent portfolio. He said HP and others may be concerned that the provision could prevent them asserting patent rights unrelated to software licensed under the GPL, though McOrmond said he does not believe that’s the intent of the licence. “I don’t think at the end of the day that there’s going to be any reason to disagree with it,” he said.

But HP wasn’t alone in its concerns. Linux developer Linus Torvalds has expressed reservations about the new version.

Torvalds has taken issue with the provisions aimed at blocking DRM restrictions. “I think it’s insane to require people to make their private signing keys available, for example,” he wrote in an online discussion group last January. “I wouldn’t do it. So I don’t think the GPL v3 conversion is going to happen for the kernel, since I personally don’t want to convert any of my code.”

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