Licensing – Closing Open-Source Patent Loopholes

The Free Software Foundation (FSF) has released a draft version of its new general public software license (GPL) that is designed in part to protect open-source users from being sued over software patents.

The document (available at http://gplv3.fsf.org/draft) is the first major revision to the popular software license in 15 years and would change the terms under which a variety of open-source software, including Linux, Samba and MySQL, is used. The GPL is a license that allows users to freely copy software as long as they share any modifications they make to it.

The draft includes a provision requiring software distributors to “shield” users against patent infringement claims when they distribute software that incorporates patented technology. The provision is aimed at discouraging patent infringement suits and preventing users from being hurt in intellectual property disputes, such as the dueling lawsuits between SCO and IBM. The two companies contested who owns the rights to Linux and Unix, and some Linux users were caught up in the litigation.

The patent provision is likely to kick off a lot of discussion, especially from large companies with lots of patents that may wonder exactly what they must do to protect users, says Karen Copenhaver, general counsel with intellectual property management vendor Black Duck Software. Linus Torvalds, developer of the Linux kernel, a key component of the Linux operating system, says he’ll oppose the new license for another reason: its rejection of digital rights management.

Eben Moglen, one of the authors of the draft, predicts that the new license will “most likely” be finalized in early 2007.