GPL Draft Has Microsoft/Novell Deal in Mind

A lawyer involved in the next version of the open source license lays bare the terms in the latest draft, including the recent patent covenant between Microsoft and Novell.

NEW YORK -- When the the third draft of the General Public License (define) comes out, look for language that addresses the recent Microsoft-Novell patent deal.

Members of the Free Software Foundation, which oversees the draft change process for the GPL, said a new patent clause is being inserted in the draft that could effectively thwart future patent pacts similar to Microsoft's deal with Novell.

The November agreement between Microsoft and Novell provides Novell users with a promise from Microsoft not to sue Novell's Linux customers for alleged Linux patent infringements.

Experts at the LinuxWorld OpenSolutions summit here said the latest draft of proposed changes to the dominant open source license would include an indirect patent license provision that will prevent GPL version 3 users from striking deals similar to Novell's agreement with Microsoft; Novell is not directly providing patent protection but rather is receiving it indirectly via Microsoft.

During a panel discussion yesterday, Richard Fontana, legal counsel at the Free Software Foundation's Software Freedom Law Center, argued that it is not clear whether Novell's deal with Microsoft is in violation of GPL version 2, which is why the new clauses in version 3 are necessary.

"Microsoft is taking its first step in a new strategy to attack free and open source software by driving a wedge between commercial vendors and the community," Fontana said, during a lively and sometimes raucous panel discussion. "We feel it to be the beginnings of a very dangerous attack by Microsoft to attack free software and that's why we want to address it in version 3."

GPL version 2 is the premier open source license in use today and is currently undergoing discussion and draft revision. After two drafts in 2006 , a third and final draft is expected early this year. Among the key changes in the new license are new terms regarding patents and digital rights management.

Though the third draft of the GPL is not yet publicly available, Mark Radcliffe, a partner in legal firm DLA Piper, offered some clues about what it would include. He mentioned defined terms and a move away from copyright terminology that is more U.S. centric. The new agreement will be broader and will have global applicability, and will apply to both documentation and hardware.

A key new addition will also be a new termination provision. The GPL version 2 only provides for immediate license termination if a user is found to be in violation. New terms in the third draft of GPL version 3 will provide for both notice and cure such that immediate termination is not the only remedy for license violations.

Radcliffe, who runs one of the four committees tasked with discussing the GPL version 3, is also learning a thing or two about the process of updating the license contract as well. "I've been practicing law for 25 years and this is the most unique way of drafting a contract I've ever seen."

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