GPL Version 3 divides open source community

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 hesitating about it.

Thee 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 revised to take account of 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 like 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.”

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.”

Martino’s statement also said HP’s earlier concerns about DRM had been addressed and the company remained hopeful the issues could be worked out. HP said it could not make a spokesperson available for further comment at press time.

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 licenced 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 he added that some other companies also appear to have concerns about the patent provisions.

It’s not so much of a surprise that companies such as HP have concerns about the GPL as it is that one of the best-known figures in the open source community, Linux developer Linus Torvalds, has expressed reservations about the new version.

Torvalds has taken issue about 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.”

It would take a deliberate decision to make Linux subject to Version 3 of the GPL, because the licence language used with Linux today does not include a crucial phrase that appears in the boilerplate version of the GPL. The terms of the licence state that “version 2 of the licence, or (at your option) any later version” applies. But the licence distributed with Linux omits “or (at your option) any later version.” So Version 2 will continue to apply unless that language is changed.

That won’t likely happen. Even if everyone in the Linux community loved the revised licence, McOrmond said, it would be impractical to change the licence terms attached to Linux because hundred of programmers have contributed to the Linux kernel and they retain rights to their code, so changing the licence would require either obtaining their agreements or replacing their code.

Open-source database software firm MySQL AB had been licensing its software under the default terms that allow later versions of the licence to apply, but has recently removed that clause so that Version 2 will continue to apply to its software. 

Kaj Arno, vice-president of community relations for MySQL, told ITBusiness.ca in an e-mail exchange from Munich that MySQL took this step “to see how the market responds to the new licence.” It is quite possible the company will revise its license again later to adopt Version 3, he said.

“I fully understand where the DRM and patents provisions come from,” Arno said, adding that MySQL AB believes software patents harm the industry. He said his company – which is represented on the committee preparing the new licence – wants to ensure Version 3 is acceptable to the main GPL vendors and wants it to support the dual-licensing model, which MySQL AB and some other companies use to offer software in both open-source and commercial versions.

Comment: info@itbusiness.ca

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