Proposed GPL Version 3: Revenge of the Free Software Foundation?

By John Ottaviani

Now for something NOT related to Grokster.

Earlier this month, Richard Stallman and Eben Moglen released an article discussing their plans to update the GNU General Public License (“GPL”). Version 2 of the GPL was released in 1991. Since then, changes in programming methods and technology have created a number of situations where it is difficult to apply the terms of the GPL to the code in question. While the GPL is widely used, there are also dozens of other “open source” licenses that are in use, some of which are inconsistent or even incompatible with the GPL. The more recent introduction of software patents and business method patents to the technology world has also made Messrs. Stallman and Moglen consider whether or not there need to be provisions relating to patent licenses and/or defensive terminations.

According to the release, there will be a process of gathering opinion and suggestions before the discussion draft of the GPL Version 3 is released.

I hope that the authors also use this opportunity to clarify one of the more difficult issues of the GPL: when is added code a “work based on the program” that requires distribution of the source code of the revised or modified or added code in addition to the original code licensed in. From a cynical point of view, it may not be in their interest to clarify this term, as they can then interpret the term differently in different contexts as they threaten developers with lawsuits or public embarrassment for alleged breaches of the GPL.

From a societal point of view, however, it would be much better to have certainty. When using open source software in projects, developers should be free to choose to license their projects under the GPL, or to structure their projects so that they can avoid the application of the GPL and license the project under different terms. The developers should not have to guess whether or not the GPL applies to the project, or have the GPL forced upon them by uncertain or vague licensing terms.

Stay tuned for details as this project moves forward.

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