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GPLv3 draft gets thumbs down from IP attorney

The latest GPLv3 discussion draft is ambiguous at best, and received a vote of no confidence from one IP attorney.

IT managers would do well to table the Microsoft-Novell debate for now, because the real crux of the GPL today is that it is becoming too ambiguous a document to be taken seriously by the enterprise, said Jeff Seul, a partner with the Boston office of law firm Holland + Knight.

Seul, a veteran of the IT industry who once worked with Ray Ozzie at Groove Networks, has reviewed the 12-page discussion draft of the GPL and the accompanying 60-page explanatory document released by the Free Software Foundation last week. Seul said several major changes in that draft, including a grandfather clause in section 11 that effectively exempted Novell from persecution for its patent covenant with Microsoft, were ambiguous and at odds with what the FSF had said publicly of that deal in the past.

In this interview, Seul sat down with to discuss why he thinks GPLv3 will fall short of not only the Free Software Foundation's expectations, but the very software developers it was designed to protect.

There is already a lot of discussion about the section 11 brackets, and how they deal directly with the Microsoft-Novell partnership. Is this the big ticket item to take away from the draft?

Jeff Seul: The big thing does seem to be the Novell-Microsoft deal [in section 11]. And that's not just media noise, because the FSF also issued a long explanatory document with it that said as much. Even [FSF general counsel] Eben Moglen has said as much in the past to the press. But I honestly don't know what those brackets are really supposed to mean. Obviously, this ever-changing draft was previously vetted by many people before [its release Wednesday]. One can only speculate, but likely what this means is 'this is something we are considering.' Sounds like the question the FSF is putting to the community is 'Do you want us to grandfather this deal or not?'

[Editor's Note: Section 11 is the 'patents' section, and contains a bracketed sentence that exempts partnerships like the one between Novell and Microsoft from persecution as long as the agreement was created prior to March 28, 2007.]

What's so funny about this is GPL is it was supposed to be all about freedom, but there are freedoms that GPLv3 tries to deny users.
Jeff Seul
PartnerHolland + Knight

The FSF was against the Microsoft-Novell deal before this document was released, and now section 11 appears to contain a grandfather clause that protects it. Are there contradictory statements coming from the FSF?

Seul: Basically my understanding is that as much as the FSF does not like the deal, they are saying we have to agree that it is acceptable under the GPLv2. It is a tacit acknowledgment of that fact; of the fact that they aren't going waste any more calories to attack that particular deal.

A few users I spoke with today called the draft ambiguous and confusing. Do you agree?

Seul: This draft is a terribly ambiguous document. Even people who are the quote 'true believers' are scratching their heads about the new major sections of this draft and what they mean. What I predict will happen as a result is people in the open source ecosystem -- the developers, open source software companies, the proprietary companies that want a kind of cooperative coexistence with open source, the users and customers – will be reluctant creating, distributing and interoperating with GPLv3 code. It is ironic, given the purpose of this new draft, because according to the FSF it was meant to clarify the ambiguity of version 2. I don't think they've accomplished that.

The new draft is bad for the vast majority open source supporters, and especially for customers. The reality is open source technology is mature and widely adopted -- particularly in the enterprise. However, the enterprise customer wants the freedom to have heterogeneous IT environments. They want various systems to interoperate freely.

Morgan Reed, executive director of the Association for Competitive Technology, said the new terms mean the GPL "no longer just defines freedom; it is designed to punish companies and business models that Richard Stallman just doesn't like." Is this the case?

Seul: I couldn't have said it better. If you read the preamble to GPLv3, freedom is the key theme. What is so ironic about what is going on is Linux is really achieving significant market penetration. It has been free to grow in the market. Then out comes GPLv3 and the FSF is saying they are going to deny some of the freedoms you want; that they are creating a licensing environment that discourages people form providing you the choices you want. I personally see this situation as one where the mission of FSF is collapsing in on itself.

Major changes in the latest discussion draft of GPLv3 include:
  • License compatibility terms have been simplified, with the goal of making them easier to understand and administer.
  • Manufacturers who include GPL'ed software in consumer products must also provide installation information for the software along with the source.
  • New patent requirements have been added to prevent distributors from colluding with patent holders to provide discriminatory protection from the patent.
  • First-time violators can have their license automatically restored if they remedy the problem within thirty days.

What's so funny about this is GPL draft is it was supposed to be all about freedom, but there are freedoms that GPLv3 tries to deny users. Developers and companies that want to have some level of responsibility for patent rights will have to make hard choices, like whether they are going to be GPLv3 or not. In these mixed environments where users want freedom of choice, the GPLv3 really is going to kill all that off.

Compare the ambiguity of GPLv3 to other licenses in the open source community.

Seul: With other open source licenses out there, like the Mozilla public license, and the Apache license, you discover that they are brief and are in plain English. The GPLv3 is 12 pages with a 60-page explanatory document. I don't know how people are going to cope with a 12-page licensing agreement with 60 pages of ancillary text – that's 70-plus pages of text and it's ambiguity run amok. If I ever had a client come to me, and they said they wanted to build a business around the GPLv3, and were asking for a legal opinion on it, this lawyer would not have the confidence in it to give them clear legal advice.

Just how important is the GPL these days? Has it lost some of its significance going from version 2 to 3?

Seul: It is hard to say. Take for what it's worth, but my prediction is the code that is already released under GPLv2, that is being used in mixed mission-critical environments by millions of users, will stay under the GPLv2. People will recognize that GPLv3 is not a practical or useful version of the license. We may see some new projects under GPLv3, but I think it will be a long time before those projects, if ever, gain widespread acceptance within the enterprise.

Can this be completed in the 60-day discussion window provided by the FSF? Can this ambiguity be addressed and tightened up?

Seul: Presumably, that is the purpose of this discussion draft. I believe this is the third discussion draft, and at this point in the drafting process things have become fairly fractious. We should all hope they can clarify it in the final draft, but I think given the process so far it seems unlikely that they are going to be able to extract all the ambiguity in this document.

Do you have a question or comment about this article? Email Jack Loftus, News Writer or visit the Enterprise Linux Log.

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