Suits and Patents: A Report from the GPLv3 Launch Conference

To be sure, the free and open source community was well represented: Bruce Perens, Andrew Tridgell, Chris DiBona, Seth Schoen, and many other free/open source stalwarts. But you would expect them to be here, while the corporate presence was definitely a sign of the times. Indeed, as I sat waiting for the presentation to start, two corporate folks were walking up the stairs behind me and one said to the other "Oh, yeah, we are all here to watch the ground shake."

The ground may not have shaken immediately, but the session began around 10am with Richard Stallman welcoming the crowd of 200+ attendees and providing a broad introduction to the GPLv3. He spoke on the overall goal of increasing the compatibility of the GPL with other appropriate licenses (such as the MIT X11 and BSD licenses) and then discussed the threats of digital restrictions management (DRM) and how it can never be compatible with the goals of free software. At the end, he introduced Eben Moglen, who proceeded to take the crowd through about an hour-and-a-half of line-by-line analysis of this first draft of GPLv3.

In all my years working with free and open source software, I'd actually never heard Eben Moglen speak and it turned out to be quite an enjoyable time. With occasional wit and humor, he guided us through the new clauses and the rationale behind the changes. As others have already provided some analysis and the FSF's GPLv3 rationale document gives their view on the changes, I'll not repeat much of that. His main thrust, though, was that the changes were about the increased compatibility of which RMS spoke, as well as clarifying a number of areas in which GLPv2 was unclear or vague. There was also a good amount of effort put into trying to make the GPL more "global" in the sense that it would better comply with copyright laws of more countries. One example is the new use of the term "propagate" in Section 0 as "distribute" turned out to have some formal connotations in some countries.

Moglen spent a good bit of time on the minimal "patent retaliation" clause now found in Section 2 and the reasons (explained in the rationale document) why the FSF did not go further. There was also an involved discussion of the ability to add additional permissions and requirements and how those flow on to recipients during the propagation/distribution process. Predictably, he spent a significant amount of time on Section 7, "License Compatibility", discussing what the different clauses mean with regard to the other free and open source licenses.

One of the discussions I found most interesting concerned the changes to section 8 ("Termination") specifically around the "60 day" clause. GPLv2 provided for the "automatic termination" of the license if you violated it and the license also essentially required someone in violation to contact all copyright holders to obtain forgiveness for having violated the license. As the FSF was very often the one acting to aggregate the claims and help entities come into compliance, they did see the pain this requirement caused when the process of contacting all copyright holders became long and protracted. In their view, this new arrangement provides a stronger incentive for entities in violation to come into compliance quickly as it gives them some assurance that if they do comply, they will not have the threat of GPL-infringement lawsuits looming over them once the first 60 days have gone by.

Another interesting addition was section 18 that speaks of the program not being tested for use in "safety critical systems". He said that at the time the GPL was first being applied, no one was thinking that free software might be used to run nuclear power plants or other systems that might have critical implications if there was a failure. This phrase was added to explicitly state that programs were not tested for these environments. However, he also said that he fully expects some companies to offer warranties (for a fee) to provide coverage for using such programs in those environments.

Throughout the talk he threw in entertaining quips such as "Most of us would see the copyright law of 1897 as being better than that of 2004", "Protecting freedom is hard work!" and "That's our legal theory and we're sticking to it." He also received a great deal of laughter when he relayed that the warranty sections (now 16 and 17) were not changed at all - except that he moved them from being all in uppercase. He said that he had yet to find a lawyer who could explain why they were all putting warranty provisions in all caps and that it seemed to be something people were just doing because everyone else was. So he decided for the sake of readability to make the change.

Moglen concluded his presentation with a moving comment on the "spirit" of the license and the overall need to preserve "the spirit of tinkering, of hacking, of making an unexpected invention out of the materials lying around". He spoke of this revision process as trying to keep the GPL safe, make it bigger and add more people to the discussion - and with that he invited people to become part of the process. He turned the floor back to RMS who said a very few final words and then opened it up for questions.

Predictably, the questions came quite quickly and were mostly about... patents. Two clauses received the most questions. The first was the "patent retaliation" clause in Section 2 and the second was the part of Section 11 which says that, if you distribute a work "knowingly relying on a patent license, you must act to shield downstream users against the possible patent infringement claims from which your license protects you." The response on this latter part from Eben Moglen was that they are not looking to require companies to search all their patents to ensure they are not infringing before distributing work, but more to prevent people from distributing work that they know requires a patent license which they may already have, but which the people who receive their work will not. He went on to say that this clause really only applies to a very small number of people and companies and that he looked forward to working with them to make sure this clause works well.

Beyond the patent questions, there were questions about the 60-day notice, the DRM provision and some general questions about the process of moving from GPLv2 to GPLv3. Overall it was a very useful, interesting and intense morning session.

My one critique of the FSF conference would be what happened next. As we broke for lunch, a subset of the participants (including many of the corporate folks and high-profile members of the free/open source community) apparently went off to separate "discussion groups" to which they were specifically invited. That left the rest of us (myself included) returning from lunch around 1:30pm to face a "Q&A session" with FSF Executive Director Peter Brown, FSF web/wiki coordinator John Sullivan and a young FSF staffer/volunteer who did not identify himself. After a brief statement around the process that would be starting how to comment online, the floor was opened for questions... many of which could simply not be answered.

I don't really fault the three of them. They tried as best they could to answer some of the questions, but they were definitely out of their element. The questioners wanted to ask specific points about the license and clearly needed RMS and Eben Moglen to be there. After a bit, Peter Brown tried to direct the questions away from the license draft and toward the process, asking for other questions to be held until Eben Moglen could return around 3 or 3:30pm. The frustration was visible in a number of the folks there.

I do understand that the FSF was trying to make use of the fact that it had all of these various folks in one physical location and certainly a room of 200 people is not a great way to get a large quantity of feedback. Small groups work far better for that type of thing. I also know that numerous media personnel were there and that RMS and Eben Moglen needed to spend some time with those folks. Still, given that the published agenda said that the afternoon session was for "Q&A" with no mention that RMS and Moglen would not be there, it was a bit frustrating to learn that it was not the type of Q&A that most attendees wanted.

Having said all that, there were some very good questions raised during this afternoon session. Patents were raised again several times, but a question was also asked about the definition of "Complete Corresponding Source Code" in Section 1 where it includes "any encryption or authorization codes necessary to install and/or execute the source code". The specific concern was about whether code could be encrypted with GnuPG for sending, but I failed to understand the issue as to my mind you would be encrypting it with the recipient's key, so they would already have it.

Far more of a concern for a few questioners, though, was the requirement in Section 6b that you will make available your source code on a "durable physical medium customarily used for software interchange." The concern was that solo developers might have to get into the business of stamping out CDs to distribute source code. It was pointed out by someone there that, per Section 6d, one easier way to comply was simply to offer a download. Still the concern persisted. Interestingly, Eben Moglen stated in his earlier presentation that this phrasing had been inserted primarily so that an entity could not "give you the source code" by giving you a printout, which he indicated was a possible way to comply in GPLv2. Now, you must be able to receive the source code in a fashion where you can use it electronically.

All in all, and even with my critique, it was well worth spending the day at MIT and I certainly think the FSF is to be commended for starting this revision process in such an open manner. While I was unable to attend the second day of the conference, I am sure that it was quite involved, as this is, for all of us, only the start of a conversation that will last most of a year. The GPL is incredibly important in this day and age and all of us should definitely monitor this first revision in 15 years, and get involved as much as we are able. The suits will be there - will you?