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<version>1</version>
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2006-04-13 14:40:40 +00:00
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<head>
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<title>Patents and GPLv3</title>
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</head>
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<body>
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<h1>Patents and GPLv3</h1>
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<p>For printing, there is also
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available <a href="patents-and-gplv3.en.pdf">a PDF of this
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document</a>.</p>
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<p>For more information about GPLv3 and the consultation process,
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2006-04-14 12:38:37 +00:00
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see <a href="gplv3.html">FSFE's GPLv3 project page</a>.</p>
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2006-04-13 14:40:40 +00:00
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<p>This document shows the changes which are proposed for version
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three of the GNU General Public License which deal with patents. It
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includes public comments made by Richard Stallman and Eben Moglen.</p>
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<h2>Headings</h2>
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<ul>
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<li><a name="toc_About-this-document" href="#About-this-document">1 About this document</a></li>
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<li><a name="toc_Basic-Permissions" href="#Basic-Permissions">2 Basic Permissions</a>
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<ul>
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2006-04-13 23:29:33 +00:00
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<li><a href="#Basic-Permissions-em0">2.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</a></li>
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<li><a href="#Basic-Permissions-rms0">2.2 Richard Stallman, speaking in Turin, March 18th 2006</a></li>
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</ul>
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</li>
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<li><a name="toc_Compatibility-with-broader-retaliation" href="#Compatibility-with-broader-retaliation">3 Compatibility with broader retaliation</a>
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<ul>
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2006-04-13 23:29:33 +00:00
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<li><a href="#Compatibility-with-broader-retaliation-em0">3.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</a></li>
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2006-04-13 23:29:33 +00:00
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<li><a href="#Compatibility-with-broader-retaliation-rms0">3.2 Richard Stallman, speaking in Brussels, February 25th 2006</a></li>
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<li><a href="#Compatibility-with-broader-retaliation-rms1">3.3 Richard Stallman, speaking in Turin, March 18th 2006</a></li>
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2006-04-13 14:40:40 +00:00
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</ul>
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</li>
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<li><a name="toc_Explicit-patent-grant" href="#Explicit-patent-grant">4 Explicit patent grant</a>
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<ul>
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2006-04-13 23:29:33 +00:00
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<li><a href="#Explicit-patent-grant-em0">4.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</a></li>
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<li><a href="#Explicit-patent-grant-rms0">4.2 Richard Stallman, speaking in Brussels, February 25th 2006</a></li>
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<li><a href="#Explicit-patent-grant-rms1">4.3 Richard Stallman, speaking in Turin, March 18th 2006</a></li>
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</ul>
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</li>
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<li><a name="toc_Liberty-or-Death" href="#Liberty-or-Death">5 Liberty or Death</a>
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<ul>
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<li><a href="#Liberty-or-Death-em0">5.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</a></li>
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</ul>
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</li>
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<li><a name="toc_Closing-comments" href="#Closing-comments">6 Closing comments</a></li>
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</ul>
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2006-04-13 22:00:28 +00:00
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<h2 id="About-this-document">1 About this document</h2>
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<p>This document is published by FSFE to aid understanding of the
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proposed changes to the GNU General Public License (GPL) with respect
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to patents. It quotes version two of the GPL, the first published
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draft of version three of the GPL, Richard Stallman (the author of the
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GPL), and Eben Moglen (the legal counsel of FSF).</p>
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<p>The above people had no part in the compilation of this document or
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the selection of material for inclusion. Ciaran O'Riordan was
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responsible for those activities.</p>
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2006-04-13 22:00:28 +00:00
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<h2 id="Basic-Permissions">2 Basic Permissions</h2>
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<table>
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<tr align="left">
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<th valign="top" width="50%">GPLv2 </th>
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<th valign="top" width="50%">GPLv3, first draft </th>
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</tr>
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<tr align="left">
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<td valign="top" width="50%">(no corresponding section in version two)</td>
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<td valign="top" width="50%">2 Basic Permissions.<br />
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<br />
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This License explicitly affirms your unlimited
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permission to run the Program. [...]<br />
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<br />
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This License gives unlimited permission to privately modify and run
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the Program, provided you do not bring suit for patent infringement
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against anyone for making, using or distributing their own works based
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on the Program.</td>
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</tr>
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</table>
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2006-04-13 23:29:33 +00:00
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<h3 id="Basic-Permissions-em0">2.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</h3>
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<p><a href="http://www.ifso.ie/documents/gplv3-launch-2006-01-16.html#em-pat-ret">http://www.ifso.ie/documents/gplv3-launch-2006-01-16.html#em-pat-ret</a></p>
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<p>[This passage reflects] the one
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narrowly targeted form of direct patent retaliation we have elected to
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include in this license.</p>
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<p>We are not grand theorists of patent retaliation. We have been saying
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for 20 years, for nearly 20 years, that patents would be a terrible
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problem threatening the very existence of software freedom. I hope
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that it is clear to all now that we were right.</p>
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<p>None the less, we believe that broad patent retaliation clauses in
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licenses promise more to users than they can really deliver.</p>
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<p>Because the deterrent effect of denying the right to have and use and
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distribute free software is not enough in and of itself to break most
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patent aggression schemes. Where we have satisfied ourself that narrow
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targeted patent retaliation may have true deterrent affect, we have
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however incorporated it into the license as part of a general attempt
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to do everything we can about the patent problem. Here we believe that
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one narrow form of retaliation may actually have meaningful effect, so
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this license gives unlimited permission to privately modify and run
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the program provided that you do not bring suit for patent
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infringement against anyone for making, using, or distributing, their
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works based on the program. And as Richard has already told you, we
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believe the operative effect of this clause would be to deny continued
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opportunity to maintain privately modified versions on the part of any
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party who seeks to use its patent claims to prevent similar or
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equivalent modifications from being made by others. In this very
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narrow field we think retaliation may actually deter aggression and we
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wish therefore to include it.</p>
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2006-04-13 23:29:33 +00:00
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<h3 id="Basic-Permissions-rms0">2.2 Richard Stallman, speaking in Turin, March 18th 2006</h3>
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2020-07-06 10:05:20 +00:00
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<p><a href="/activities/gplv3/torino-rms-transcript.html#limited-retal">https://fsfe.org/activities/gplv3/torino-rms-transcript.html#limited-retal</a></p>
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2006-04-13 14:40:40 +00:00
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<p>The GPL itself does contain one very limited kind of patent
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retaliation[...]. It says if you make changes in a
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GPL-covered program and then somebody else makes similar changes and
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you sue him for patent infringement then you lose the right to
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continue making changes and copying the program to your own machines.</p>
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<p>This is a very limited situation and it's meant to protect against one
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particular kind of abuse on the part of server operators where they
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make an improvement, which they're free to do, and run it on their
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servers and they don't release their source code and if the code does
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not have the Affero clause on it then they don't have to release the
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source code, and then you decide that you are going to implement a
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similar improvement and then they sue you for patent infringement.</p>
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2006-04-13 22:00:28 +00:00
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<h2 id="Compatibility-with-broader-retaliation">3 Compatibility with broader retaliation</h2>
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2006-04-13 14:40:40 +00:00
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<table summary="">
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<tr align="left">
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<th valign="top" width="50%">GPLv2 </th>
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<th valign="top" width="50%">GPLv3, first draft </th>
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</tr>
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<tr align="left">
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<td valign="top" width="50%">(no corresponding section in version two)</td>
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<td valign="top" width="50%">7 e) They may impose software patent retaliation, which means
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permission for use of your added parts terminates or may be
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terminated, wholly or partially, under stated conditions, for users
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closely related to any party that has filed a software patent lawsuit
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(i.e., a lawsuit alleging that some software infringes a patent). The
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conditions must limit retaliation to a subset of these two cases:
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1. Lawsuits that lack the justification of retaliating against other
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software patent lawsuits that lack such justification. 2. Lawsuits
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that target part of this work, or other code that was elsewhere
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released together with the parts you added, the whole being under the
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terms used here for those parts. </td>
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</tr>
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</table>
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2006-04-13 23:29:33 +00:00
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<h3 id="Compatibility-with-broader-retaliation-em0">3.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</h3>
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<p><a href="http://www.ifso.ie/documents/gplv3-launch-2006-01-16.html#em-section7e">http://www.ifso.ie/documents/gplv3-launch-2006-01-16.html#em-section7e</a></p>
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<p>Part (e), which is phrased with some complexity, unfortunately, but it
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is necessary, states again a position on a subject of great
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controversy on which we wish to secure flexibility. Part (e) contains
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a two-part definition of what we consider defensive patent
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retaliation, and we say that you may put defensive patent retaliation
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additional requirements on your parts of a GPL'd work, if you wish to,
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and those parts will bear that requirement but can be ad-mixed with
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other GPL'd code.</p>
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<p>Again, we do not enforce those requirements, but we do not prohibit
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code bearing such requirements to be mixed with GPL'd code. The
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definition we have offered is a meta-language definition of defensive
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patent retaliation terms. We have worked it very carefully, we have
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subjected it to formal verification process, and we believe that it
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correctly describes all of the cases that it is our intention to
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include, and none of the cases that it was our intention to exclude. I
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will say here about those conclusions that the patent retaliation
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provisions of the ASL 2 and the patent retaliation provisions of the
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Eclipse license, in our working of this example, meet this standard.</p>
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<p>Accordingly, we believe that without further alteration, were this
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discussion draft to be GPL3 it would have attained full compatibility
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with both ASL 2 and the Eclipse license, which are presently separated
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from compatibility with GPL version 2 by their patent retaliation
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terms and those alone.</p>
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2006-04-13 23:29:33 +00:00
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<h3 id="Compatibility-with-broader-retaliation-rms0">3.2 Richard Stallman, speaking in Brussels, February 25th 2006</h3>
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<p><a href="http://www.ifso.ie/documents/rms-gplv3-2006-02-25.html#compatibility">http://www.ifso.ie/documents/rms-gplv3-2006-02-25.html#compatibility</a></p>
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<p>Another big change - comparatively big - is that we've decided to make
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the GPL compatible with some additional free software licences that
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are incompatible with GPL version two. It's a practical inconvenience,
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this incompatibility, and it's nice to get rid of it. We can't get rid
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of all these incompatibilities because that would require eviscerating
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the GPL, making it null, effectively. The GPL requires that users must
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get certain freedoms and we can't allow the addition of absolutely any
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requirement but instead we decided to list a specific set of
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additional requires that are ok. So other licences can add
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requirements of those kinds.</p>
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<p>[...] another kind of requirement that the GPLv3 is compatible with,
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and that is: patent retaliation. There are several free software
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licences that have patent retaliation clauses where they say that if
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you sue for software patent infringement, then you lose the right to
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use and distribute this program. And the details vary, because
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different licences work this out in different ways, so we drew up a
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criterion for acceptable software patent retaliation clauses and they
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are allowed now in GPL version three in compatible licences. So a
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licence can be compatible with GPL version 3 and contain a software
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patent retaliation clause - but only certain kinds of software patent
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retaliation clauses.</p>
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<p>There are two kinds that we said are ok. One kind is where retaliation
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only occurs against aggression. You see, if Party A sues B for patent
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infringement, the thing B is most likely to do, if he can, is
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counter-sue. If Party B has a software patent, Party B will look for a
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way to counter-sue. We've decided we want retaliation only against A,
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not against B. We want retaliation only against those who commit the
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aggression. Not against those who are themselves retaliating. So we
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have a way to make the distinction.</p>
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<p>The other kind of software patent retaliation clause that's okay is
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where it retaliates only from lawsuits directed at the same code or
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code that was released with it. That is, retaliation for software
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patent lawsuits that are targeted very close to the same program that
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would target them.</p>
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2006-04-13 23:29:33 +00:00
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<h3 id="Compatibility-with-broader-retaliation-rms1">3.3 Richard Stallman, speaking in Turin, March 18th 2006</h3>
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2006-04-13 14:40:40 +00:00
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2020-07-06 10:05:20 +00:00
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<p><a href="/activities/gplv3/torino-rms-transcript.html#compatibility-with-patent-retaliation">https://fsfe.org/activities/gplv3/torino-rms-transcript.html#compatibility-with-patent-retaliation</a></p>
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2006-04-13 14:40:40 +00:00
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<p>There's another kind of requirement that we've decided to permit, and
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this is patent retaliation clauses. Now, the reason is that there are
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several other free software licences that have patent retaliation
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clauses.</p>
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<p>Patent retaliation means, if you sue somebody for patent infringement,
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then you lose the right to use this code.</p>
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<p>Of course there are many ways to do that because every patent
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retaliation clause puts on some specifics, if you sue him or him for
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patent infringement in certain circumstances, then you lose the right
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to use this code, and the question is, what are those circumstances,
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what are the conditions under which the retaliation operates.</p>
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<p>Now, we saw that there are some very broad and nasty patent
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retaliation clauses. Some of them say, "if you sue me for patent
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retaliation, for any reason about anything, you lose the right to use
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this code". Now that's bad because it means, suppose I sue you for
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patent infringement and you have a patent so you counter sue me, and
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then my free software licence retaliates against you and you lose the
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right to use that code, now that's not fair because in that case you
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are defending yourself, you're not the aggressor, so we decided to
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accept only patent retaliation clauses that are limited enough that
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they do not retaliate against defense, that they only retaliate
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against aggression, so there are two kinds of clauses that we
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identified that do this. One is, if the clause itself, makes a
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distinction between defense and aggression, so it says, if you sue
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somebody for patent infringement and it's aggression, then you lose
|
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the right to use this code, but if you are suing in retaliation for
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aggression, then what you are doing is defensive and then we do not
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retaliate against you.</p>
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<p>This is one kind of patent retaliation clause that we accept.</p>
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<p>The other kind is, if you sue, alleging that some free software,
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relating to this code is patent infringement, then you lose the right
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to use this code. In the broad space of possible kinds of patent
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retaliation clauses, we picked two kinds, each of which is limited
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enough that it will not retaliate against people for practicing
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defense with patents. It will only retaliate against aggressors. And
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we've said these two kinds of clauses are OK to add to your code in a
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GNU GPL covered program. This is a conceptually complicated
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thing. There's no way to make it any simpler, I hope, at least, that
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I've explained it clearly.</p>
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2006-04-13 22:00:28 +00:00
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<h2 id="Explicit-patent-grant">4 Explicit patent grant</h2>
|
2006-04-13 14:40:40 +00:00
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<table summary="">
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<tr align="left">
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<th valign="top" width="50%">GPLv2 </th>
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<th valign="top" width="50%">GPLv3, first draft </th>
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</tr>
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<tr align="left"><td valign="top" width="50%">(no corresponding
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section in version two) </td>
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<td valign="top" width="50%">11 Licensing of Patents.<br />
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<br />
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When you distribute a covered work, you grant a patent license to the
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recipient, and to anyone that receives any version of the work,
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permitting, for any and all versions of the covered work, all
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activities allowed or contemplated by this License, such as
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installing, running and distributing versions of the work, and using
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their output. This patent license is nonexclusive, royalty-free and
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worldwide, and covers all patent claims you control or have the right
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to sublicense, at the time you distribute the covered work or in the
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future, that would be infringed or violated by the covered work or any
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reasonably contemplated use of the covered work.<br />
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<br />
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If you distribute a covered work knowingly relying on a patent
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license, you must act to shield downstream users against the possible
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patent infringement claims from which your license protects you. </td>
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</tr>
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</table>
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|
2006-04-13 23:29:33 +00:00
|
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<h3 id="Explicit-patent-grant-em0">4.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</h3>
|
2006-04-13 14:40:40 +00:00
|
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<p><a href="http://www.ifso.ie/documents/gplv3-launch-2006-01-16.html#em-section11">http://www.ifso.ie/documents/gplv3-launch-2006-01-16.html#em-section11</a></p>
|
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<p>Now, in section 11, we reach, as Richard told you in his opening, the
|
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|
next major area of change under the license. These two paragraphs
|
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|
point in different directions and I want to take them separately.</p>
|
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<p>The first paragraph is simply a grant of patent claims that every
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distributor, licensor, modifier makes in the act of propagation that
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allows others to receive copies.</p>
|
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<p>GPL version 2 depended on the implicit patent license in US patent law
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which is assumed to burden any manufacturer who distributes any
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product practising its own claims. That implicit patent license, in US
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law, had the protection of obscurity, and we appreciated
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that. Unfortunately, we can no longer afford any obscurity with
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respect to patents and it was a creature of US patent law, absent in
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most of the World's patent systems, and actively disclaimed by
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some. It was therefore clear to us that a deliberate and explicit
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grant of patent rights would be necessary in the license, and this is
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it.</p>
|
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<p>Those who have fun making patent licenses -- a sub-group of a
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|
sub-group of a sub-group in this room -- may be able to improve on
|
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|
that one, and we certainly encourage the attempt.</p>
|
|
|
|
|
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|
<p>The last sentence is a different kettle of fish altogether.</p>
|
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<p>Here, we face a problem that we all, or at least those of us steeped
|
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|
in the patent problem as it presently exists, know is there but which
|
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everybody has been reluctant to deal with and we now serve notice that
|
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|
something must be done.</p>
|
|
|
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|
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<p>This is not about restrictions upon you put by that patent
|
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|
license. That remains covered by the, used to be section 7, now
|
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|
|
section 12, that I'm about to show you. This is not about what happens
|
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|
|
if your license contains terms incompatible with GPL, that's a
|
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|
|
|
separate question. This question is: what to do to prevent patent
|
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|
|
distributors from in-succinctly putting their customers or
|
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|
|
beneficiaries in a position of a danger from which they themselves are
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|
exempt by non-sublicenseable licenses.</p>
|
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<p>We recognise that for parties who have extensive portfolios that are
|
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|
|
extensively cross-licensed, what we are saying here for the first time
|
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|
creates questions concerning their cross-licenses in relation to their
|
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|
distribution.</p>
|
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|
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|
<p>We recognise also that to say that you must "act to shield" is not
|
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|
explicit enough. We recognise that this is a very hard problem and
|
|
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|
|
though we have worked long at it we have no unique solution to offer
|
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|
|
you, even as a beginning for conversation.</p>
|
|
|
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|
<p>In this coming year, those of us within this group who care about this
|
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|
problem, who are affected by the question, who have deep knowledge of
|
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|
|
this issue, who bear many patents as a badge of ...well, whatever it
|
|
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|
|
is that bearing many patents is a badge of, will have to work at it
|
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|
|
together, but we believe that the community must now face that
|
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|
question: how to prevent people from being deliberately endangered by
|
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|
those who are not suffering with them a common fate.</p>
|
|
|
|
|
|
|
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|
<p>Note that the words are "if you knowingly rely on a patent
|
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|
|
|
license". We are not speaking about what happens if you have many 10s
|
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|
|
of thousands of patents and cross-license for many 100s of thousands
|
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|
|
more and have no idea whether a particular claim that you may have
|
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|
|
cross-licensed might read on some code you might be distributing.</p>
|
|
|
|
|
|
|
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|
<p>And the question of what constitutes reliance on a license is also
|
|
|
|
|
open for discussion but the basic principal is one we believe we must
|
|
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|
|
now deal with, that parties should act with recognition of the danger
|
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|
that patents pose to their customers, their colleagues, their
|
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|
distributees, and that we should demand of people that they
|
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|
affirmatively act to do what they can as part of a community to
|
|
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|
|
constrain the harm that patents are doing to that community at large.</p>
|
|
|
|
|
|
2006-04-13 23:29:33 +00:00
|
|
|
<h3 id="Explicit-patent-grant-rms0">4.2 Richard Stallman, speaking in Brussels, February 25th 2006</h3>
|
2006-04-13 14:40:40 +00:00
|
|
|
|
|
|
|
|
<p><a href="http://www.ifso.ie/documents/rms-gplv3-2006-02-25.html#patents">http://www.ifso.ie/documents/rms-gplv3-2006-02-25.html#patents</a></p>
|
|
|
|
|
|
|
|
|
|
<p>We decided that the implicit patent licences that we were relying on
|
|
|
|
|
in GPL version two, were not solid enough so we put in an explicit
|
|
|
|
|
grant of patent licence on the part of whoever distributes the
|
|
|
|
|
software.</p>
|
|
|
|
|
|
|
|
|
|
<p>[Richard points at audience member] If she gives you a copy of the
|
|
|
|
|
program, she is implicitly giving you a patent licence for any patent
|
|
|
|
|
that she has or controls that you would need to infringe in order to
|
|
|
|
|
use the software or use its output.</p>
|
|
|
|
|
|
|
|
|
|
<p>This follows various other free software licences that came out during
|
|
|
|
|
the 90s.</p>
|
|
|
|
|
|
|
|
|
|
<p>Suppose someone is distributing a program, and he has a patent
|
|
|
|
|
licence. So he thinks the program infringes some patent, but he has a
|
|
|
|
|
patent licence so he's not going to be sued, but you might get sued if
|
|
|
|
|
you redistribute it. That's not fair, so we put in a requirement that
|
|
|
|
|
if he knows he's relying on a patent licence, he has to do something
|
|
|
|
|
to ensure that he's shielding you as well when you carry out the
|
|
|
|
|
freedoms that the GPL gives you. This is a matter of honesty.</p>
|
|
|
|
|
|
|
|
|
|
<p>When he distributes the program to you and says "this is under the
|
|
|
|
|
GPL, you're free to redistribute this", and at the same time he knows
|
|
|
|
|
that if you redistribute it you'll get sued, even though he can't get
|
|
|
|
|
sued, that's dishonesty. So we require him to do something to make
|
|
|
|
|
sure you won't get sued either, if he knowingly relys on a patent
|
|
|
|
|
licence.</p>
|
|
|
|
|
|
|
|
|
|
<p>On the other hand, if he's just taking his chances, he doesn't have to
|
|
|
|
|
do anything special. [skip] that's the most we can ask.</p>
|
|
|
|
|
|
|
|
|
|
<p>But, this is complicated because there are mega corporations that have
|
|
|
|
|
blanket cross-licences. Two mega corporations say "we'll cross licence
|
|
|
|
|
all our patents", and they don't even know what they have patent
|
|
|
|
|
licences for. So this is why we put in the "knowingly rely on" part,
|
|
|
|
|
because we don't want to impose a requirement on, say, IBM, to do
|
|
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|
|
something for other people when IBM doesn't even know that it has a
|
|
|
|
|
patent licence for a certain patent. So we put in those words
|
|
|
|
|
"knowingly rely on". This apparently is rather controversial: exactly
|
|
|
|
|
where that line should be drawn. But it's actually a pretty small
|
|
|
|
|
change.</p>
|
|
|
|
|
|
2006-04-13 23:29:33 +00:00
|
|
|
<h3 id="Explicit-patent-grant-rms1">4.3 Richard Stallman, speaking in Turin, March 18th 2006</h3>
|
2006-04-13 14:40:40 +00:00
|
|
|
|
2020-07-06 10:05:20 +00:00
|
|
|
<p><a href="/activities/gplv3/torino-rms-transcript.html#patent-grant">https://fsfe.org/activities/gplv3/torino-rms-transcript.html#patent-grant</a></p>
|
2006-04-13 14:40:40 +00:00
|
|
|
|
|
|
|
|
<p>GPL version two is based on an implicit grant of a patent licence. The
|
|
|
|
|
idea is that if somebody says "here is a thing and you can use it",
|
|
|
|
|
implicitly he's promising he's not going to sue you for patent
|
|
|
|
|
infringement if you go ahead and do what he said; however, since in
|
|
|
|
|
the past eight years or so some other free software licences have
|
|
|
|
|
included explicit statements of patent licenses, patent licence grants
|
|
|
|
|
by people distributing the software, and so we decided to do the same
|
|
|
|
|
thing, and we've included an explicit statement that the distributors
|
|
|
|
|
of the software all promise not to sue anybody who is using any
|
|
|
|
|
version of that software for patent infringement based on the versions
|
|
|
|
|
that they distributed. Basically, whatever their versions do, they're
|
|
|
|
|
promising not to sue you for.</p>
|
|
|
|
|
|
|
|
|
|
<p>However, there's a subtlety that came up in this. What if somebody
|
|
|
|
|
doesn't have a patent but he has got a licence for that patent, and he
|
|
|
|
|
distributes the code to you. Well, does that licence he got include
|
|
|
|
|
your exercise of the four freedoms? Including your freedom to
|
|
|
|
|
redistribute copies yourself, with changes? Maybe not, but if it
|
|
|
|
|
doesn't, it creates a dangerous and unfair situation. Unfair to you
|
|
|
|
|
because he is distributing the software, or distributing his version
|
|
|
|
|
of the software, and he is not going to get sued for patent
|
|
|
|
|
infringement because he got a licence. He distributes it to you under
|
|
|
|
|
the GPL and the GPL says you are free to redistribute it too, but if
|
|
|
|
|
you do that you might get sued because his patent license might not
|
|
|
|
|
cover you.</p>
|
|
|
|
|
|
|
|
|
|
<p>Well, this is unfair, this is something that's not supposed to
|
|
|
|
|
happen. He received this program under the GPL and the GPL says when
|
|
|
|
|
he distributes a version of it, he must really give you the freedom to
|
|
|
|
|
do the same. If he can count on safely doing it, and he knows you will
|
|
|
|
|
get sued if you do it, by a third party, he's cheating. So, GPL
|
|
|
|
|
version three, along with the explicit patent licence grant, says that
|
|
|
|
|
if he is knowingly relying on a patent licence for distributing his
|
|
|
|
|
version, he must take some effective step to protect you as well if
|
|
|
|
|
you distribute.</p>
|
|
|
|
|
|
|
|
|
|
<p>Now, the reason it talks about "knowingly relying" is that there are
|
|
|
|
|
companies that have signed blanket cross licences with other
|
|
|
|
|
companies, so the company distributing the program, might have some
|
|
|
|
|
blanket cross licence with some company, and that blanket cross
|
|
|
|
|
licence might cover a thousand patents, and they don't even know what
|
|
|
|
|
those thousand patents say. So, if they don't even know that they have
|
|
|
|
|
a patent licence, they're not required to pay attention, but if they
|
|
|
|
|
know about a specific patent that would cover this program, that means
|
|
|
|
|
they are knowingly relying on a patent licence and that means they
|
|
|
|
|
have to keep you safe as well. This is a very controversial
|
|
|
|
|
decision. It may seem like a subtle point, it covers a peculiar
|
|
|
|
|
scenario, but it's not an impossible scenario. It could be a very
|
|
|
|
|
important scenario. In this scenario, this point is essential to
|
|
|
|
|
ensure that the GPL really does what it intends to do, which is, make
|
|
|
|
|
sure that you do get the freedom to redistribute the software that you
|
|
|
|
|
got. And this is typical of the ways that we are changing GPL version
|
|
|
|
|
three. They apply to complicated scenarios but those scenarios may
|
|
|
|
|
happen frequently, and in those scenarios we are trying to make sure
|
|
|
|
|
that you really get the four fundamental freedoms which that free
|
|
|
|
|
software.</p>
|
|
|
|
|
|
|
|
|
|
<p>So here we're talking about what is necessary to ensure that freedom
|
|
|
|
|
two really exist for you in a certain special scenario, freedom two
|
|
|
|
|
being the freedom to redistribute copies and also freedom three, it
|
|
|
|
|
applies to that too.</p>
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006-04-13 22:00:28 +00:00
|
|
|
<h2 id="Liberty-or-Death">5 Liberty or Death</h2>
|
2006-04-13 14:40:40 +00:00
|
|
|
|
|
|
|
|
<table summary="">
|
|
|
|
|
<tr align="left">
|
|
|
|
|
<th valign="top" width="50%">GPLv2 </th>
|
|
|
|
|
<th valign="top" width="50%">GPLv3, first draft </th>
|
|
|
|
|
</tr><tr align="left">
|
|
|
|
|
|
|
|
|
|
<td valign="top" width="50%">7. If<em>, as a consequence of a court
|
|
|
|
|
judgment or allegation of patent infringement or for any other reason
|
|
|
|
|
(not limited to patent issues)</em>, conditions are imposed on you
|
|
|
|
|
(whether by court order, agreement or otherwise) that contradict the
|
|
|
|
|
conditions of this License, they do not excuse you from the conditions
|
|
|
|
|
of this License. If you cannot distribute so as to satisfy
|
|
|
|
|
simultaneously your obligations under this License and any other
|
|
|
|
|
pertinent obligations, then as a consequence you may not
|
|
|
|
|
distribute <em>the Program</em> at all. For example, if a patent
|
|
|
|
|
license would not permit royalty-free redistribution <em>of the
|
|
|
|
|
Program</em> by all those who receive copies directly or indirectly
|
|
|
|
|
through you, then the only way you could satisfy both it and this
|
|
|
|
|
License would be to refrain entirely from distribution of the
|
|
|
|
|
Program.<br />
|
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<br />
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<em>If any portion of this section is held invalid or unenforceable under
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any particular circumstance, the balance of the section is intended to
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apply and the section as a whole is intended to apply in other
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circumstances.</em><br />
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<br />
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It is not the purpose of this section to induce you to infringe any
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patents or other property right claims or to contest validity <em>of any
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such claims; this section has the sole purpose of protecting</em> the
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integrity of the free software distribution system<em>, which is
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implemented by public license practices.</em></td>
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<td valign="top" width="50%">12 Liberty or Death for the Program.<br />
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<br />
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If conditions are imposed on you (whether by court order, agreement or
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otherwise) that contradict the conditions of this License, they do not
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excuse you from the conditions of this License. If you cannot
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distribute the Program<em>, or other covered work,</em> so as to satisfy
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simultaneously your obligations under this License and any other
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pertinent obligations, then as a consequence you may not distribute it
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at all. For example, if a patent license would not permit royalty-free
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redistribution by all those who receive copies directly or indirectly
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through you, then the only way you could satisfy both it and this
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License would be to refrain entirely from distribution.<br />
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<br />
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It is not the purpose of this section to induce you to infringe any
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patents or other exclusive rights or to contest <em>their legal</em>
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validity. <em>The sole purpose of this section is to protect</em> the integrity
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of the free software distribution system.</td>
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</tr>
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</table>
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2006-04-13 23:29:33 +00:00
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<h3 id="Liberty-or-Death-em0">5.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</h3>
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2006-04-13 14:40:40 +00:00
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<p><a href="http://www.ifso.ie/documents/gplv3-launch-2006-01-16.html#em-section12">http://www.ifso.ie/documents/gplv3-launch-2006-01-16.html#em-section12</a></p>
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<p>We wish to point out, both in that language and in the illustration,
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that an agreement which imposes obligations on you, like a court order
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or other judgement, raises the problem which we used to call a section
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7 problem and we shall now find ourselves calling a section 12
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problem, ah, raises a section 12 problem because those condition
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because those conditions are imposed on you. Whether you have
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self-imposed them or they have been externally imposed, it's the fact
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that you have conflicting obligations that prevents you from
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distributing. It's not a punishment, it's the observations of a
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fact. It's not good enough to say "I have to violate the license", you
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just can't.</p>
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<p>This has always been seen as being about the patent problem, and in
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some sense it is. It wasn't the only way you could get into section 12
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trouble, but it was the way which was most commonly understood in the
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course of the last few years as the patent problem became ever more
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severe.</p>
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<p>However, there were also cases in recent years where people seemed to
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want to use section 7 as a device of explosion -- an improvised
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explosive device if you please -- inside the GPL. Some people seemed
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to have come to the conclusion that merely by yelling "patent", or by
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offering a license incompatible with GPL, that they could somehow
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prevent GPL'd distribution of works. We knew that that was bogus, and
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we thought that it was important to make it clear in this license. If
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you impose conditions on yourself, or if conditions are imposed on
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you, then this clause has effect. If you are threatened, or if
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bloviation occurs in your neighbourhood, that has no effect, and we
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hope it will continue to have no effect in the future.</p>
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2006-04-13 22:00:28 +00:00
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<h2 id="Closing-comments">6 Closing comments</h2>
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2006-04-13 14:40:40 +00:00
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<p>A year-long consultation is being held to spread awareness of the
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proposed changes to GPLv3, and to solicit comments. This document was
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produced as part of FSFE's efforts to assist this process. For more
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information about FSFE's efforts, see:</p>
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2020-07-06 10:05:20 +00:00
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<p><a href="/activities/gplv3/">https://fsfe.org/activities/gplv3/</a></p>
|
2006-04-13 14:40:40 +00:00
|
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<p>The official website of the GPLv3 process is:</p>
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<p><a href="http://gplv3.fsf.org">http://gplv3.fsf.org</a></p>
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<p>Free Software Foundation Europe e.V.<br />
|
2019-05-22 14:22:08 +00:00
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Talstraße 110 <br />
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40217 Düsseldorf <br />
|
2006-04-13 14:40:40 +00:00
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Germany <br />
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Phone: ++49 700 - 373387673 (++49 700 FSFEUROPE) <br />
|
2018-12-19 16:15:49 +00:00
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European office e-mail: contact@fsfe.org</p>
|
2006-04-13 14:40:40 +00:00
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