What should GPLv3 do about MS and Novell?

While the deal is being analysed for GPLv2 compliance, it’s a useful example of a more general case worth thinking of regarding GPLv3.

The problem to be considered is: what if company A distributes some GPL’d software, and company B announces that they will not sue customers of company A. This creates a situation where some users are safe from patent litigation, and some are in danger – and company A now has an interest in sustaining or maximising that danger.

It’s probably safe to assume that this will only happen in cases where a business agreement exists between companies A and B.

The goal is that we wouldn’t want to discourage anyone from obtaining patent protection for all users of the software, but we mustn’t accept people stopping short of this in ways that give them a commercial advantage or an incentive to increase danger for others.

Some interesting details from the Novell/Microsoft issue are that Microsoft are not distributing any GPL’d software directly. They will instead be distributing coupons for Novell’s GNU+Linux distribution. Also, Novell are saying that the patent protection is not coming from them, instead it is coming from Microsoft direct to the users of Novell products.

Here’s what the current discussion draft says about patents: (from Section 11)

You receive the Program with a covenant from each author and conveyor of the Program, and of any material, conveyed under this License, on which the Program is based, that the covenanting party will not assert (or cause others to assert) any of the party’s essential patent claims in the material that the party conveyed, against you, arising from your exercise of rights under this License. If you convey a covered work, you similarly covenant to all recipients, including recipients of works based on the covered work, not to assert any of your essential patent claims in the covered work.

If you convey a covered work, knowingly relying on a non-sublicensable patent license that is not generally available to all, you must either (1) act to shield downstream users against the possible patent infringement claims from which your license protects you, or (2) ensure that anyone can copy the Corresponding Source of the covered work, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means.

Will that wording prevent companies making patent deals that shaft the free software community? What improvements should be made to that wording? Any suggestions, submit them to gplv3.fsf.org, and see FSFE’s GPLv3 page for more general information.

Ciarán O’Riordan,
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