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  1. <?xml version="1.0" encoding="iso-8859-1" ?>
  2. <html>
  3. <head>
  4. <title>Patents and GPLv3</title>
  5. </head>
  6. <body>
  7. <h1>Patents and GPLv3</h1>
  8. <p>For printing, there is also
  9. available <a href="patents-and-gplv3.en.pdf">a PDF of this
  10. document</a>.</p>
  11. <p>For more information about GPLv3 and the consultation process,
  12. see <a href="gplv3.html">FSFE's GPLv3 project page</a>.</p>
  13. <p>This document shows the changes which are proposed for version
  14. three of the GNU General Public License which deal with patents. It
  15. includes public comments made by Richard Stallman and Eben Moglen.</p>
  16. <h2>Headings</h2>
  17. <ul>
  18. <li><a name="toc_About-this-document" href="#About-this-document">1 About this document</a></li>
  19. <li><a name="toc_Basic-Permissions" href="#Basic-Permissions">2 Basic Permissions</a>
  20. <ul>
  21. <li><a href="#Basic-Permissions-em0">2.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</a></li>
  22. <li><a href="#Basic-Permissions-rms0">2.2 Richard Stallman, speaking in Turin, March 18th 2006</a></li>
  23. </ul>
  24. </li>
  25. <li><a name="toc_Compatibility-with-broader-retaliation" href="#Compatibility-with-broader-retaliation">3 Compatibility with broader retaliation</a>
  26. <ul>
  27. <li><a href="#Compatibility-with-broader-retaliation-em0">3.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</a></li>
  28. <li><a href="#Compatibility-with-broader-retaliation-rms0">3.2 Richard Stallman, speaking in Brussels, February 25th 2006</a></li>
  29. <li><a href="#Compatibility-with-broader-retaliation-rms1">3.3 Richard Stallman, speaking in Turin, March 18th 2006</a></li>
  30. </ul>
  31. </li>
  32. <li><a name="toc_Explicit-patent-grant" href="#Explicit-patent-grant">4 Explicit patent grant</a>
  33. <ul>
  34. <li><a href="#Explicit-patent-grant-em0">4.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</a></li>
  35. <li><a href="#Explicit-patent-grant-rms0">4.2 Richard Stallman, speaking in Brussels, February 25th 2006</a></li>
  36. <li><a href="#Explicit-patent-grant-rms1">4.3 Richard Stallman, speaking in Turin, March 18th 2006</a></li>
  37. </ul>
  38. </li>
  39. <li><a name="toc_Liberty-or-Death" href="#Liberty-or-Death">5 Liberty or Death</a>
  40. <ul>
  41. <li><a href="#Liberty-or-Death-em0">5.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</a></li>
  42. </ul>
  43. </li>
  44. <li><a name="toc_Closing-comments" href="#Closing-comments">6 Closing comments</a></li>
  45. </ul>
  46. <h2 id="About-this-document">1 About this document</h2>
  47. <p>This document is published by FSFE to aid understanding of the
  48. proposed changes to the GNU General Public License (GPL) with respect
  49. to patents. It quotes version two of the GPL, the first published
  50. draft of version three of the GPL, Richard Stallman (the author of the
  51. GPL), and Eben Moglen (the legal counsel of FSF).</p>
  52. <p>The above people had no part in the compilation of this document or
  53. the selection of material for inclusion. Ciaran O'Riordan was
  54. responsible for those activities.</p>
  55. <h2 id="Basic-Permissions">2 Basic Permissions</h2>
  56. <table>
  57. <tr align="left">
  58. <th valign="top" width="50%">GPLv2 </th>
  59. <th valign="top" width="50%">GPLv3, first draft </th>
  60. </tr>
  61. <tr align="left">
  62. <td valign="top" width="50%">(no corresponding section in version two)</td>
  63. <td valign="top" width="50%">2 Basic Permissions.<br />
  64. <br />
  65. This License explicitly affirms your unlimited
  66. permission to run the Program. [...]<br />
  67. <br />
  68. This License gives unlimited permission to privately modify and run
  69. the Program, provided you do not bring suit for patent infringement
  70. against anyone for making, using or distributing their own works based
  71. on the Program.</td>
  72. </tr>
  73. </table>
  74. <h3 id="Basic-Permissions-em0">2.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</h3>
  75. <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>
  76. <p>[This passage reflects] the one
  77. narrowly targeted form of direct patent retaliation we have elected to
  78. include in this license.</p>
  79. <p>We are not grand theorists of patent retaliation. We have been saying
  80. for 20 years, for nearly 20 years, that patents would be a terrible
  81. problem threatening the very existence of software freedom. I hope
  82. that it is clear to all now that we were right.</p>
  83. <p>None the less, we believe that broad patent retaliation clauses in
  84. licenses promise more to users than they can really deliver.</p>
  85. <p>Because the deterrent effect of denying the right to have and use and
  86. distribute free software is not enough in and of itself to break most
  87. patent aggression schemes. Where we have satisfied ourself that narrow
  88. targeted patent retaliation may have true deterrent affect, we have
  89. however incorporated it into the license as part of a general attempt
  90. to do everything we can about the patent problem. Here we believe that
  91. one narrow form of retaliation may actually have meaningful effect, so
  92. this license gives unlimited permission to privately modify and run
  93. the program provided that you do not bring suit for patent
  94. infringement against anyone for making, using, or distributing, their
  95. works based on the program. And as Richard has already told you, we
  96. believe the operative effect of this clause would be to deny continued
  97. opportunity to maintain privately modified versions on the part of any
  98. party who seeks to use its patent claims to prevent similar or
  99. equivalent modifications from being made by others. In this very
  100. narrow field we think retaliation may actually deter aggression and we
  101. wish therefore to include it.</p>
  102. <h3 id="Basic-Permissions-rms0">2.2 Richard Stallman, speaking in Turin, March 18th 2006</h3>
  103. <p><a href="/campaigns/gplv3/torino-rms-transcript.html#limited-retal">http://fsfe.org/campaigns/gplv3/torino-rms-transcript.html#limited-retal</a></p>
  104. <p>The GPL itself does contain one very limited kind of patent
  105. retaliation[...]. It says if you make changes in a
  106. GPL-covered program and then somebody else makes similar changes and
  107. you sue him for patent infringement then you lose the right to
  108. continue making changes and copying the program to your own machines.</p>
  109. <p>This is a very limited situation and it's meant to protect against one
  110. particular kind of abuse on the part of server operators where they
  111. make an improvement, which they're free to do, and run it on their
  112. servers and they don't release their source code and if the code does
  113. not have the Affero clause on it then they don't have to release the
  114. source code, and then you decide that you are going to implement a
  115. similar improvement and then they sue you for patent infringement.</p>
  116. <h2 id="Compatibility-with-broader-retaliation">3 Compatibility with broader retaliation</h2>
  117. <table summary="">
  118. <tr align="left">
  119. <th valign="top" width="50%">GPLv2 </th>
  120. <th valign="top" width="50%">GPLv3, first draft </th>
  121. </tr>
  122. <tr align="left">
  123. <td valign="top" width="50%">(no corresponding section in version two)</td>
  124. <td valign="top" width="50%">7 e) They may impose software patent retaliation, which means
  125. permission for use of your added parts terminates or may be
  126. terminated, wholly or partially, under stated conditions, for users
  127. closely related to any party that has filed a software patent lawsuit
  128. (i.e., a lawsuit alleging that some software infringes a patent). The
  129. conditions must limit retaliation to a subset of these two cases:
  130. 1. Lawsuits that lack the justification of retaliating against other
  131. software patent lawsuits that lack such justification. 2. Lawsuits
  132. that target part of this work, or other code that was elsewhere
  133. released together with the parts you added, the whole being under the
  134. terms used here for those parts. </td>
  135. </tr>
  136. </table>
  137. <h3 id="Compatibility-with-broader-retaliation-em0">3.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</h3>
  138. <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>
  139. <p>Part (e), which is phrased with some complexity, unfortunately, but it
  140. is necessary, states again a position on a subject of great
  141. controversy on which we wish to secure flexibility. Part (e) contains
  142. a two-part definition of what we consider defensive patent
  143. retaliation, and we say that you may put defensive patent retaliation
  144. additional requirements on your parts of a GPL'd work, if you wish to,
  145. and those parts will bear that requirement but can be ad-mixed with
  146. other GPL'd code.</p>
  147. <p>Again, we do not enforce those requirements, but we do not prohibit
  148. code bearing such requirements to be mixed with GPL'd code. The
  149. definition we have offered is a meta-language definition of defensive
  150. patent retaliation terms. We have worked it very carefully, we have
  151. subjected it to formal verification process, and we believe that it
  152. correctly describes all of the cases that it is our intention to
  153. include, and none of the cases that it was our intention to exclude. I
  154. will say here about those conclusions that the patent retaliation
  155. provisions of the ASL 2 and the patent retaliation provisions of the
  156. Eclipse license, in our working of this example, meet this standard.</p>
  157. <p>Accordingly, we believe that without further alteration, were this
  158. discussion draft to be GPL3 it would have attained full compatibility
  159. with both ASL 2 and the Eclipse license, which are presently separated
  160. from compatibility with GPL version 2 by their patent retaliation
  161. terms and those alone.</p>
  162. <h3 id="Compatibility-with-broader-retaliation-rms0">3.2 Richard Stallman, speaking in Brussels, February 25th 2006</h3>
  163. <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>
  164. <p>Another big change - comparatively big - is that we've decided to make
  165. the GPL compatible with some additional free software licences that
  166. are incompatible with GPL version two. It's a practical inconvenience,
  167. this incompatibility, and it's nice to get rid of it. We can't get rid
  168. of all these incompatibilities because that would require eviscerating
  169. the GPL, making it null, effectively. The GPL requires that users must
  170. get certain freedoms and we can't allow the addition of absolutely any
  171. requirement but instead we decided to list a specific set of
  172. additional requires that are ok. So other licences can add
  173. requirements of those kinds.</p>
  174. <p>[...] another kind of requirement that the GPLv3 is compatible with,
  175. and that is: patent retaliation. There are several free software
  176. licences that have patent retaliation clauses where they say that if
  177. you sue for software patent infringement, then you lose the right to
  178. use and distribute this program. And the details vary, because
  179. different licences work this out in different ways, so we drew up a
  180. criterion for acceptable software patent retaliation clauses and they
  181. are allowed now in GPL version three in compatible licences. So a
  182. licence can be compatible with GPL version 3 and contain a software
  183. patent retaliation clause - but only certain kinds of software patent
  184. retaliation clauses.</p>
  185. <p>There are two kinds that we said are ok. One kind is where retaliation
  186. only occurs against aggression. You see, if Party A sues B for patent
  187. infringement, the thing B is most likely to do, if he can, is
  188. counter-sue. If Party B has a software patent, Party B will look for a
  189. way to counter-sue. We've decided we want retaliation only against A,
  190. not against B. We want retaliation only against those who commit the
  191. aggression. Not against those who are themselves retaliating. So we
  192. have a way to make the distinction.</p>
  193. <p>The other kind of software patent retaliation clause that's okay is
  194. where it retaliates only from lawsuits directed at the same code or
  195. code that was released with it. That is, retaliation for software
  196. patent lawsuits that are targeted very close to the same program that
  197. would target them.</p>
  198. <h3 id="Compatibility-with-broader-retaliation-rms1">3.3 Richard Stallman, speaking in Turin, March 18th 2006</h3>
  199. <p><a href="/campaigns/gplv3/torino-rms-transcript.html#compatibility-with-patent-retaliation">http://fsfe.org/campaigns/gplv3/torino-rms-transcript.html#compatibility-with-patent-retaliation</a></p>
  200. <p>There's another kind of requirement that we've decided to permit, and
  201. this is patent retaliation clauses. Now, the reason is that there are
  202. several other free software licences that have patent retaliation
  203. clauses.</p>
  204. <p>Patent retaliation means, if you sue somebody for patent infringement,
  205. then you lose the right to use this code.</p>
  206. <p>Of course there are many ways to do that because every patent
  207. retaliation clause puts on some specifics, if you sue him or him for
  208. patent infringement in certain circumstances, then you lose the right
  209. to use this code, and the question is, what are those circumstances,
  210. what are the conditions under which the retaliation operates.</p>
  211. <p>Now, we saw that there are some very broad and nasty patent
  212. retaliation clauses. Some of them say, "if you sue me for patent
  213. retaliation, for any reason about anything, you lose the right to use
  214. this code". Now that's bad because it means, suppose I sue you for
  215. patent infringement and you have a patent so you counter sue me, and
  216. then my free software licence retaliates against you and you lose the
  217. right to use that code, now that's not fair because in that case you
  218. are defending yourself, you're not the aggressor, so we decided to
  219. accept only patent retaliation clauses that are limited enough that
  220. they do not retaliate against defense, that they only retaliate
  221. against aggression, so there are two kinds of clauses that we
  222. identified that do this. One is, if the clause itself, makes a
  223. distinction between defense and aggression, so it says, if you sue
  224. somebody for patent infringement and it's aggression, then you lose
  225. the right to use this code, but if you are suing in retaliation for
  226. aggression, then what you are doing is defensive and then we do not
  227. retaliate against you.</p>
  228. <p>This is one kind of patent retaliation clause that we accept.</p>
  229. <p>The other kind is, if you sue, alleging that some free software,
  230. relating to this code is patent infringement, then you lose the right
  231. to use this code. In the broad space of possible kinds of patent
  232. retaliation clauses, we picked two kinds, each of which is limited
  233. enough that it will not retaliate against people for practicing
  234. defense with patents. It will only retaliate against aggressors. And
  235. we've said these two kinds of clauses are OK to add to your code in a
  236. GNU GPL covered program. This is a conceptually complicated
  237. thing. There's no way to make it any simpler, I hope, at least, that
  238. I've explained it clearly.</p>
  239. <h2 id="Explicit-patent-grant">4 Explicit patent grant</h2>
  240. <table summary="">
  241. <tr align="left">
  242. <th valign="top" width="50%">GPLv2 </th>
  243. <th valign="top" width="50%">GPLv3, first draft </th>
  244. </tr>
  245. <tr align="left"><td valign="top" width="50%">(no corresponding
  246. section in version two) </td>
  247. <td valign="top" width="50%">11 Licensing of Patents.<br />
  248. <br />
  249. When you distribute a covered work, you grant a patent license to the
  250. recipient, and to anyone that receives any version of the work,
  251. permitting, for any and all versions of the covered work, all
  252. activities allowed or contemplated by this License, such as
  253. installing, running and distributing versions of the work, and using
  254. their output. This patent license is nonexclusive, royalty-free and
  255. worldwide, and covers all patent claims you control or have the right
  256. to sublicense, at the time you distribute the covered work or in the
  257. future, that would be infringed or violated by the covered work or any
  258. reasonably contemplated use of the covered work.<br />
  259. <br />
  260. If you distribute a covered work knowingly relying on a patent
  261. license, you must act to shield downstream users against the possible
  262. patent infringement claims from which your license protects you. </td>
  263. </tr>
  264. </table>
  265. <h3 id="Explicit-patent-grant-em0">4.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</h3>
  266. <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>
  267. <p>Now, in section 11, we reach, as Richard told you in his opening, the
  268. next major area of change under the license. These two paragraphs
  269. point in different directions and I want to take them separately.</p>
  270. <p>The first paragraph is simply a grant of patent claims that every
  271. distributor, licensor, modifier makes in the act of propagation that
  272. allows others to receive copies.</p>
  273. <p>GPL version 2 depended on the implicit patent license in US patent law
  274. which is assumed to burden any manufacturer who distributes any
  275. product practising its own claims. That implicit patent license, in US
  276. law, had the protection of obscurity, and we appreciated
  277. that. Unfortunately, we can no longer afford any obscurity with
  278. respect to patents and it was a creature of US patent law, absent in
  279. most of the World's patent systems, and actively disclaimed by
  280. some. It was therefore clear to us that a deliberate and explicit
  281. grant of patent rights would be necessary in the license, and this is
  282. it.</p>
  283. <p>Those who have fun making patent licenses -- a sub-group of a
  284. sub-group of a sub-group in this room -- may be able to improve on
  285. that one, and we certainly encourage the attempt.</p>
  286. <p>The last sentence is a different kettle of fish altogether.</p>
  287. <p>Here, we face a problem that we all, or at least those of us steeped
  288. in the patent problem as it presently exists, know is there but which
  289. everybody has been reluctant to deal with and we now serve notice that
  290. something must be done.</p>
  291. <p>This is not about restrictions upon you put by that patent
  292. license. That remains covered by the, used to be section 7, now
  293. section 12, that I'm about to show you. This is not about what happens
  294. if your license contains terms incompatible with GPL, that's a
  295. separate question. This question is: what to do to prevent patent
  296. distributors from in-succinctly putting their customers or
  297. beneficiaries in a position of a danger from which they themselves are
  298. exempt by non-sublicenseable licenses.</p>
  299. <p>We recognise that for parties who have extensive portfolios that are
  300. extensively cross-licensed, what we are saying here for the first time
  301. creates questions concerning their cross-licenses in relation to their
  302. distribution.</p>
  303. <p>We recognise also that to say that you must "act to shield" is not
  304. explicit enough. We recognise that this is a very hard problem and
  305. though we have worked long at it we have no unique solution to offer
  306. you, even as a beginning for conversation.</p>
  307. <p>In this coming year, those of us within this group who care about this
  308. problem, who are affected by the question, who have deep knowledge of
  309. this issue, who bear many patents as a badge of ...well, whatever it
  310. is that bearing many patents is a badge of, will have to work at it
  311. together, but we believe that the community must now face that
  312. question: how to prevent people from being deliberately endangered by
  313. those who are not suffering with them a common fate.</p>
  314. <p>Note that the words are "if you knowingly rely on a patent
  315. license". We are not speaking about what happens if you have many 10s
  316. of thousands of patents and cross-license for many 100s of thousands
  317. more and have no idea whether a particular claim that you may have
  318. cross-licensed might read on some code you might be distributing.</p>
  319. <p>And the question of what constitutes reliance on a license is also
  320. open for discussion but the basic principal is one we believe we must
  321. now deal with, that parties should act with recognition of the danger
  322. that patents pose to their customers, their colleagues, their
  323. distributees, and that we should demand of people that they
  324. affirmatively act to do what they can as part of a community to
  325. constrain the harm that patents are doing to that community at large.</p>
  326. <h3 id="Explicit-patent-grant-rms0">4.2 Richard Stallman, speaking in Brussels, February 25th 2006</h3>
  327. <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>
  328. <p>We decided that the implicit patent licences that we were relying on
  329. in GPL version two, were not solid enough so we put in an explicit
  330. grant of patent licence on the part of whoever distributes the
  331. software.</p>
  332. <p>[Richard points at audience member] If she gives you a copy of the
  333. program, she is implicitly giving you a patent licence for any patent
  334. that she has or controls that you would need to infringe in order to
  335. use the software or use its output.</p>
  336. <p>This follows various other free software licences that came out during
  337. the 90s.</p>
  338. <p>Suppose someone is distributing a program, and he has a patent
  339. licence. So he thinks the program infringes some patent, but he has a
  340. patent licence so he's not going to be sued, but you might get sued if
  341. you redistribute it. That's not fair, so we put in a requirement that
  342. if he knows he's relying on a patent licence, he has to do something
  343. to ensure that he's shielding you as well when you carry out the
  344. freedoms that the GPL gives you. This is a matter of honesty.</p>
  345. <p>When he distributes the program to you and says "this is under the
  346. GPL, you're free to redistribute this", and at the same time he knows
  347. that if you redistribute it you'll get sued, even though he can't get
  348. sued, that's dishonesty. So we require him to do something to make
  349. sure you won't get sued either, if he knowingly relys on a patent
  350. licence.</p>
  351. <p>On the other hand, if he's just taking his chances, he doesn't have to
  352. do anything special. [skip] that's the most we can ask.</p>
  353. <p>But, this is complicated because there are mega corporations that have
  354. blanket cross-licences. Two mega corporations say "we'll cross licence
  355. all our patents", and they don't even know what they have patent
  356. licences for. So this is why we put in the "knowingly rely on" part,
  357. because we don't want to impose a requirement on, say, IBM, to do
  358. something for other people when IBM doesn't even know that it has a
  359. patent licence for a certain patent. So we put in those words
  360. "knowingly rely on". This apparently is rather controversial: exactly
  361. where that line should be drawn. But it's actually a pretty small
  362. change.</p>
  363. <h3 id="Explicit-patent-grant-rms1">4.3 Richard Stallman, speaking in Turin, March 18th 2006</h3>
  364. <p><a href="/campaigns/gplv3/torino-rms-transcript.html#patent-grant">http://fsfe.org/campaigns/gplv3/torino-rms-transcript.html#patent-grant</a></p>
  365. <p>GPL version two is based on an implicit grant of a patent licence. The
  366. idea is that if somebody says "here is a thing and you can use it",
  367. implicitly he's promising he's not going to sue you for patent
  368. infringement if you go ahead and do what he said; however, since in
  369. the past eight years or so some other free software licences have
  370. included explicit statements of patent licenses, patent licence grants
  371. by people distributing the software, and so we decided to do the same
  372. thing, and we've included an explicit statement that the distributors
  373. of the software all promise not to sue anybody who is using any
  374. version of that software for patent infringement based on the versions
  375. that they distributed. Basically, whatever their versions do, they're
  376. promising not to sue you for.</p>
  377. <p>However, there's a subtlety that came up in this. What if somebody
  378. doesn't have a patent but he has got a licence for that patent, and he
  379. distributes the code to you. Well, does that licence he got include
  380. your exercise of the four freedoms? Including your freedom to
  381. redistribute copies yourself, with changes? Maybe not, but if it
  382. doesn't, it creates a dangerous and unfair situation. Unfair to you
  383. because he is distributing the software, or distributing his version
  384. of the software, and he is not going to get sued for patent
  385. infringement because he got a licence. He distributes it to you under
  386. the GPL and the GPL says you are free to redistribute it too, but if
  387. you do that you might get sued because his patent license might not
  388. cover you.</p>
  389. <p>Well, this is unfair, this is something that's not supposed to
  390. happen. He received this program under the GPL and the GPL says when
  391. he distributes a version of it, he must really give you the freedom to
  392. do the same. If he can count on safely doing it, and he knows you will
  393. get sued if you do it, by a third party, he's cheating. So, GPL
  394. version three, along with the explicit patent licence grant, says that
  395. if he is knowingly relying on a patent licence for distributing his
  396. version, he must take some effective step to protect you as well if
  397. you distribute.</p>
  398. <p>Now, the reason it talks about "knowingly relying" is that there are
  399. companies that have signed blanket cross licences with other
  400. companies, so the company distributing the program, might have some
  401. blanket cross licence with some company, and that blanket cross
  402. licence might cover a thousand patents, and they don't even know what
  403. those thousand patents say. So, if they don't even know that they have
  404. a patent licence, they're not required to pay attention, but if they
  405. know about a specific patent that would cover this program, that means
  406. they are knowingly relying on a patent licence and that means they
  407. have to keep you safe as well. This is a very controversial
  408. decision. It may seem like a subtle point, it covers a peculiar
  409. scenario, but it's not an impossible scenario. It could be a very
  410. important scenario. In this scenario, this point is essential to
  411. ensure that the GPL really does what it intends to do, which is, make
  412. sure that you do get the freedom to redistribute the software that you
  413. got. And this is typical of the ways that we are changing GPL version
  414. three. They apply to complicated scenarios but those scenarios may
  415. happen frequently, and in those scenarios we are trying to make sure
  416. that you really get the four fundamental freedoms which that free
  417. software.</p>
  418. <p>So here we're talking about what is necessary to ensure that freedom
  419. two really exist for you in a certain special scenario, freedom two
  420. being the freedom to redistribute copies and also freedom three, it
  421. applies to that too.</p>
  422. <h2 id="Liberty-or-Death">5 Liberty or Death</h2>
  423. <table summary="">
  424. <tr align="left">
  425. <th valign="top" width="50%">GPLv2 </th>
  426. <th valign="top" width="50%">GPLv3, first draft </th>
  427. </tr><tr align="left">
  428. <td valign="top" width="50%">7. If<em>, as a consequence of a court
  429. judgment or allegation of patent infringement or for any other reason
  430. (not limited to patent issues)</em>, conditions are imposed on you
  431. (whether by court order, agreement or otherwise) that contradict the
  432. conditions of this License, they do not excuse you from the conditions
  433. of this License. If you cannot distribute so as to satisfy
  434. simultaneously your obligations under this License and any other
  435. pertinent obligations, then as a consequence you may not
  436. distribute <em>the Program</em> at all. For example, if a patent
  437. license would not permit royalty-free redistribution <em>of the
  438. Program</em> by all those who receive copies directly or indirectly
  439. through you, then the only way you could satisfy both it and this
  440. License would be to refrain entirely from distribution of the
  441. Program.<br />
  442. <br />
  443. <em>If any portion of this section is held invalid or unenforceable under
  444. any particular circumstance, the balance of the section is intended to
  445. apply and the section as a whole is intended to apply in other
  446. circumstances.</em><br />
  447. <br />
  448. It is not the purpose of this section to induce you to infringe any
  449. patents or other property right claims or to contest validity <em>of any
  450. such claims; this section has the sole purpose of protecting</em> the
  451. integrity of the free software distribution system<em>, which is
  452. implemented by public license practices.</em></td>
  453. <td valign="top" width="50%">12 Liberty or Death for the Program.<br />
  454. <br />
  455. If conditions are imposed on you (whether by court order, agreement or
  456. otherwise) that contradict the conditions of this License, they do not
  457. excuse you from the conditions of this License. If you cannot
  458. distribute the Program<em>, or other covered work,</em> so as to satisfy
  459. simultaneously your obligations under this License and any other
  460. pertinent obligations, then as a consequence you may not distribute it
  461. at all. For example, if a patent license would not permit royalty-free
  462. redistribution by all those who receive copies directly or indirectly
  463. through you, then the only way you could satisfy both it and this
  464. License would be to refrain entirely from distribution.<br />
  465. <br />
  466. It is not the purpose of this section to induce you to infringe any
  467. patents or other exclusive rights or to contest <em>their legal</em>
  468. validity. <em>The sole purpose of this section is to protect</em> the integrity
  469. of the free software distribution system.</td>
  470. </tr>
  471. </table>
  472. <h3 id="Liberty-or-Death-em0">5.1 Eben Moglen speaking at the GPLv3 launch, January 16th 2006</h3>
  473. <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>
  474. <p>We wish to point out, both in that language and in the illustration,
  475. that an agreement which imposes obligations on you, like a court order
  476. or other judgement, raises the problem which we used to call a section
  477. 7 problem and we shall now find ourselves calling a section 12
  478. problem, ah, raises a section 12 problem because those condition
  479. because those conditions are imposed on you. Whether you have
  480. self-imposed them or they have been externally imposed, it's the fact
  481. that you have conflicting obligations that prevents you from
  482. distributing. It's not a punishment, it's the observations of a
  483. fact. It's not good enough to say "I have to violate the license", you
  484. just can't.</p>
  485. <p>This has always been seen as being about the patent problem, and in
  486. some sense it is. It wasn't the only way you could get into section 12
  487. trouble, but it was the way which was most commonly understood in the
  488. course of the last few years as the patent problem became ever more
  489. severe.</p>
  490. <p>However, there were also cases in recent years where people seemed to
  491. want to use section 7 as a device of explosion -- an improvised
  492. explosive device if you please -- inside the GPL. Some people seemed
  493. to have come to the conclusion that merely by yelling "patent", or by
  494. offering a license incompatible with GPL, that they could somehow
  495. prevent GPL'd distribution of works. We knew that that was bogus, and
  496. we thought that it was important to make it clear in this license. If
  497. you impose conditions on yourself, or if conditions are imposed on
  498. you, then this clause has effect. If you are threatened, or if
  499. bloviation occurs in your neighbourhood, that has no effect, and we
  500. hope it will continue to have no effect in the future.</p>
  501. <h2 id="Closing-comments">6 Closing comments</h2>
  502. <p>A year-long consultation is being held to spread awareness of the
  503. proposed changes to GPLv3, and to solicit comments. This document was
  504. produced as part of FSFE's efforts to assist this process. For more
  505. information about FSFE's efforts, see:</p>
  506. <p><a href="/campaigns/gplv3/">http://fsfe.org/campaigns/gplv3/</a></p>
  507. <p>The official website of the GPLv3 process is:</p>
  508. <p><a href="http://gplv3.fsf.org">http://gplv3.fsf.org</a></p>
  509. <p>Free Software Foundation Europe e.V.<br />
  510. Talstraße 110 <br />
  511. 40217 Düsseldorf <br />
  512. Germany <br />
  513. Phone: ++49 700 - 373387673 (++49 700 FSFEUROPE) <br />
  514. European office e-mail: contact@fsfe.org</p>
  515. </body>
  516. </html>