The Manager’s View of GPL Version 3: Two (and a Half) Things to Like and Two More to Look Out For

IT departments that embrace open-source software are uncertain about the new version of the GNU Public License, arguably the most common FOSS license. Learn what’s in the works, and how GPLv3 may change the way your company adopts new software.

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What to Like About GPLv3

1) It improves the language in regards to internationalization of the GPL’d license.

Kat McCabe, vice president and general counsel for Black Duck Software, a firm that specializes in advising on open-source licensing, summarizes the changes so:

Internationalization of the license was talked about early on as a key goal for the new license. GPL3 allows developers to add local disclaimers, which is certainly helpful from an international point of view. The license also uses broader defined terms around distribution, which arguably captures some activities that weren’t covered under GPL2 but should have been.

Still, there are likely a number of issues that are not optimal for enforcement of the license in specific countries—and that raises some concerns for lawyers based outside of the United States. In a commercial context, most licensors use multiple versions of their base license, tailored to meet local requirements. The FSF did not want to take this approach. Having one license is certainly simpler. But to the extent enforcement is actually impaired, it may not be worth the trade off. Of course, we haven’t seen much litigation around the GPL. It remains to be seen whether concerns raised by international lawyers will play out in a way that hinders the use and adoption of the license.

2) It increases compatibility with other open-source licenses.

In the past, you couldn’t mix libraries written under the GPL with those written under the Apache or Mozilla licenses, for example. Again, McCabe describes the changes:

One of the original goals was to increase compatibility of GPL with other licenses, to expand the world of code that can be combined with GPL3 code and with that to expand development options. A worthy goal—but increased compatibility has proven to be very hard to achieve. GPL3 has a fairly complex mechanism that doesn’t seem to get us much past where we are today as a practical matter. In addition, GPL3 is now expressly compatible with a yet-to-be-published version of the Affero license. The current version of Affero is a license that is rarely used—so that seems to add complexity without clear value. There have been steps toward compatibility with Apache, which would be welcome news for many in the open-source community. As we understand it, though, that negotiation is still in process. So, seemingly a lot of effort without much in the way of results.

3) It puts pressure on companies not to patent software.

This can be a good or bad thing, depending on whether you’re a smaller firm worried about being slammed with infringement cases by patent trolls or a large company that holds a lot of software patents.

Essentially, what GPLv3 says is that if you use GPL’d software to create a new product, you can’t sue anyone who uses your product to create a new product with patent infringement. A later provision, aimed directly at the Novell-Microsoft cross-licensing deal, further restricts companies by basically saying that you can’t cut a deal to distribute GPL’d software with a patent protection from a third party for which you pay, unless that same patent protection is also granted to anyone else using the software. Here’s McCabe’s analysis:

GPL3 is designed to have much greater reach than GPL2 on the patent side. Companies with significant patent portfolios will need to evaluate the impact of GPL3 code on their patent strategies—in terms of their enforcement choices and their licensing programs. There has been some stated concern about a chilling effect on contributions from large companies because of those patent implications.

That said, to the extent companies are using and distributing GPL3 code that doesn’t relate to key patents in their portfolios, it’s probably not much of an issue. So, as complex as the patent issues are, and as much time and attention that has been paid to those provisions, they likely affect a small group of companies in the end.

Those items may make you feel more positively toward the new version. But you probably shouldn’t put away the worry beads just yet.

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