New GPL draft has olive branches, thorns

The latest draft of revisions to the dominant open-source license offers an accommodating approach to some significant objections, but it could throw a wrench into the works of a major open-source company, Novell.

When the Free Software Foundation released the previous draft of the General Public License version 3 eight months ago, it caused indigestion among some open-source software fans. Among them were Linus Torvalds, leader of the Linux operating system kernel project, and Hewlett-Packard.

The third draft of GPL 3, released on Wednesday, softens some positions in areas where Torvalds and HP were concerned, but it raises the possibility of crippling Novell's budding Linux business. That would be a dramatic change, given that Novell is one of two major Linux sellers and that it's staked much of its future on the software.

The new draft reflects the difficulties in meeting ideological goals but not alienating a software industry that's only begun to embrace the 16-year-old GPL 2. "At some point you become so shrill that you lose the audience, who moves on to something that better fits the business needs," Steve Mills senior vice president of IBM's software group, said on Wednesday while discussing the new GPL 3 proposal.

Through a patent partnership announced in October, Microsoft agreed not to sue Novell's Suse Linux customers over patent infringement. The new GPL draft would ban such arrangements, but the foundation said it hasn't decided whether the ban will apply only to future deals.

If past deals aren't grandfathered in, the effect on Novell could be "catastrophic," said Mark Radcliffe, an intellectual property attorney with DLA Piper and member of a committee providing comment on the license. "If (the Microsoft deal) violates this, somebody could terminate their license to distribute Linux."

Microsoft and Novell have more optimistic interpretations. "The draft of the GPL 3 does not tear down the bridge Microsoft and Novell have built for their customers," Horacio Gutierrez, Microsoft's vice president of intellectual property and licensing, said in a statement. Novell spokesman Bruce Lowry added, "Nothing in this new draft of GPL 3 inhibits Novell's ability to include GPL 3 technologies in Novell's Suse Linux Enterprise, OpenSuse and other Novell open-source offerings, now and in the future."

Although the Free Software Foundation left the door open for the Microsoft-Novell deal to survive, that's because it also crafted language to ensure all recipients get the benefits that Novell customers get from Microsoft. Any company offering promises of patent safety to one audience automatically extends those promises to all recipients of the software involved, according to the new draft.

"We believe it is sufficient to ensure either the deal's voluntary modification by Microsoft or its reduction to comparative harmlessness," the foundation said in its 61-page explanation of the new license draft.

Torvalds mollified
Torvalds said he's "pleased" with changes in the new GPL draft, a significant change from his earlier strong objections.

"Whether it's actually a better license than the GPLv2, I'm still a bit skeptical, but at least it's now 'I'm skeptical' rather than 'Hell no!'" he said. Torvalds had frowned on earlier provisions that he believed could lead to incompatible versions of the GPL and that reached inappropriately into the domain of hardware designers.

Torvalds is noncommittal about whether he might try to move the Linux kernel to GPL 3 -- a change that would require the permission not just of Torvalds but also of all other Linux kernel copyright holders. Torvalds didn't rule it out, however.

"The current draft makes me think it's at least a possibility in theory, but whether it's practical and worth it is a totally different thing," he said. "Practically speaking, it would involve a lot of work to make sure everything relevant is GPLv3-compatible even if we decided that the GPL 3 is OK."

HP, which earlier was outspoken about a patent-related complaint, isn't commenting on the third draft. But the draft appears to have addressed at least one of its concerns.

HP had objected to a provision that said any party that distributes GPL software agrees not to sue recipients for infringement of patents involved with the software. The new draft is more moderate, however. In it, a party agrees only to sue for patents related to software it contributes to an open-source project, not for software it distributes without modification.

Barriers to code sharing
Sun Microsystems picked the GPL to govern its Java software and OpenSparc processor design and is considering the GPL for its OpenSolaris operating system.

But there's one thing that Simon Phipps, Sun's chief open source officer, would still like to see in the new draft: more compatibility between different open-source licenses.

"The wider free and open-source community has really got to do something about license compatibility," Phipps said. "We've got lots of software (projects) around that (are) free software, yet we can't mix them. It's like friendly-fire casualties. We need to do something about that, but it seems clear that GPL 3 is not going to be the vehicle by which we do that."

Sun is considering GPL 3 for Solaris, but the Linux kernel is governed by GPL 2, and license incompatibilities could keep the two projects separate. In Phipps' opinion, though, that particular divide is technical, not legal.

"The main reason why we're not seeing intermingling is because the two are designed in radically different ways that makes intermingling impossible," Phipps said.

The issue also crops up in Java. Sun chose GPL for that project, but much open-source Java work -- including the Apache Harmony project to reproduce the Java's core components -- is under the Apache License. The Free Software Foundation had hoped for Apache License compatibility, but said that patent provisions got in the way.

"We regret that we will not achieve compatibility of the Apache License, version 2.0, with GPL 3, despite what we had previously promised," the foundation said in its GPL 3 draft explanation.

It's inevitable that not everybody will be happy with the new GPL, but there's still room for more adjustment. A penultimate "last-call" draft is due in 60 days, and the final version 30 days after that -- June 26.

The changes in the new draft released on Wednesday show the foundation is willing to budge, Radcliffe said. "It shows the FSF has been listening to the various constituents and has been responding."

CNET News.com's Candace Lombardi contributed to this report.