Initial report from GPL 3 conference

by Andy Oram

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We got it just a few hours ago--the proposed GPL 3 license. Most of
the world got it from a web site, while a lucky few hundred of us got
it at a formal meeting at MIT,

Lots of observers wondered how Richard Stallman, Eben Moglen, and
their advisers would handle such hot issues as remote services (called
Application Service Providers in the 1990s) and patents. Surprisingly,
the license embodies both the conservatism and the room for
experimentation for which we can take U.S. law as a metaphor.

There's a big right to innovate in law, as in everything else, in the
United States. The right to make law is divided among the national,
state and local governments. For instance, states vary widely in tax
schemes, health insurance provisions, abortion controls, environmental
protections, and other things. This latitude is important not only
because different regions have different needs, but because an
experiment in one state can prove whether something is a good idea,
and can then be adopted at the national level.

The designers of the proposed GPL took a similar open approach in
remote services and patent retaliation. On both issues, the proposed
GPL upgrade takes a middle ground.

Thus, it makes no change that would restrict remote services from
using free software. This is wise in my opinion, because no
reasonable observer would want to drive Google (for instance) away
from free software by requiring them to release all the code that
implements their ranking algorithms.

But the proposed GPL leaves an opening for experimentation: it allows
people to add clauses that would require remote services to propagate
their source code.

This means that if you think you have a smashing good restriction that
would help the public by encouraging remote services to share their
software, and you have a valuable program these services might want to
use, you can release your code under the new GPL and add in your pet
cause. If you strike it lucky and your software is so valuable that
services want it, they will comply with your restriction.

That means there's a market for legal innovation in the GPL. If others
in the free software community decide your clause led to more benefit
than harm, they'll start adding it to their own licenses. And
eventually, I assume, after several years of success, the guardians of
the GPL may incorporate your clause into a new version of the GPL.

Similarly, the GPL designers took a much more modest approach to
patents than many people expected. The GPL itself includes a handful
of limited clauses.

Thus, if you have a patent on any software you release under the GPL,
you are granting a patent license without encumbrances on everyone who
uses the software.

Furthermore, if you have a patent license yourself (obtained by
cross-licensing, for instance) on software you release under the GPL,
you have to "act to shield" all users of that software. This is a
vague clause that Moglen hopes to tighten up after discussion.

Neither of these clauses address the most common situations where
holders of patents swoop down to attack free software. But clearly,
Moglen's years of research into patents have not persuaded him that he
can provide an effective defense against this in a license (or, I
imagine, in patent pools and other mechanisms).

But again, a clause in the GPL 3 allows other people to impose patent
retaliation. This can provide a legal prop for efforts such as patent
pools. We will see how well they function over time.

Meanwhile (as several people at the conference have stressed) we need
to continue to fight software patents on a policy level. In the
European Union, software patent proponents react to every defeat in
every legal forum by finding another legal forum to bring the issue
back to life.

In contrast to the tentative steps toward handling remote services and

patents, the GPL comes out very strongly against Digital Rights
Management, even the term for which Stallman objects to. (No law gives
a copyright-holder or broadcaster rights to impose the restrictions
that DRM usually imposes.) And the new GPL contains a complicated
clause targeted at DRM. As I read it, the clause requires the sharing
of any key that controls access, thus rendering the key useless for
such control and making access equally available to all.

The conference was buzzing long before the opening statements and has
been buzzing ever since, but I wonder how much more we'll learn, or be
able to improve on the proposal, during the next day and a half. In my
opinion, Moglen did a stupendous job presenting the meaning and
reasons for the clauses. Thoughtful responses will take weeks or
months to emerge, and the proposal is open now for world discussion.

I also heard from Free Software Foundation staff that more conferences
like this one are being planned, one for somewhere in Latin America
and another in Europe. Stallman apologized for holding this conference
in the United States, explaining that they couldn't arrange an
alternative and listing diverse ways that people were prevented from
visiting the United States (or refused to come and be subjected to
harrassment at the consulate or the airport).

Meanwhile, it's a whale of a conference. The weather is cold outside
but the atmosphere is popping in the conference hall, which is full to
capacity. I think I've never been with so many people I know in one
place, including my own wedding. The tone is very constructive.

People who have always hated the GPL will show no new warmth to the
new version. People who have used the GPL, I predict, will move to the
new one. The changes are relatively conservative, in my opinion, and
the ones that take the most risk are doing so for causes that all of
the GPL's supporters are united on. However, no one is forced to
move. If substantial projects stick to the GPL 2, it will represent a
failure to persuade on the part of Stallman and Moglen. But in this
matter there is always choice.