HP balks at patent provision in GPL update

So far, Hewlett-Packard prefers the earlier GPL, raising the specter that two versions of the license will survive.

A proposed patent provision in a revamped General Public License isn't sitting well at Hewlett-Packard, raising concerns that two competing versions of the license could survive.

The GPL governs thousands of open-source projects, and version 3 represent's the Free Software Foundation first explicit attempt to grapple with the thorny issue of software patents. But HP prefers version 2 to the GPLv3 draft released on July 27, arguing that it imposes disproportionate patent consequences for a company that distributes even a single copy of GPLv3 software carrying technology the company has patented.

The Free Software Foundation, which is in charge of the license overhaul, is optimistic that middle ground will be found. The stakes are high. HP's wariness, and Linux leader Linus Torvalds' objections to the update, raise the possibility that version 2 may remain in circulation. And that would increase, rather than reduce, the profusion of open-source licenses, complicating programming and legal issues.

"The greatest potential for GPLv3 is that it becomes more attractive than GPLv2, and we have a smaller number of licenses. That is the dream of GPLv3," said Scott Peterson, an intellectual property attorney at HP involved with the foundation's GPL version 3 revision. "It would be unfortunate if in fact we have the reverse--we have GPLv2 plus GPLv3."

But HP is still involved in the revision process. In addition, the Free Software Foundation's top lawyer, Eben Moglen, expressed optimism that the company will be mollified by the third and final draft, due this fall.

"I have every confidence that a consensus will emerge out of the evolving conversation before the publication of the last-call draft," Moglen said. He said he can't yet predict, though, "whether the eventual agreement will be in the precise form HP is currently suggesting."

License proliferation has complicated the open-source and free software movements. With dozens of licenses in use, companies getting involved in open-source programming have to expend more resources in legal review. For programmers, different licenses can erect barriers separating one open-source project from another.

HP's suggested changes

Hewlett-Packard said it would be content with the patent portion of General Public License version 3 if a few changes, in capital letters below, were added to Section 11:

You receive the Program with a covenant from each author and THE conveyor FROM WHOM YOU RECEIVED the Program, and of any material, conveyed under this License, on which the Program is based, that the covenanting party will not assert (or cause others to assert) any of the party's essential patent claims in the material that the party conveyed, against you, arising from your exercise of rights under this License. If you convey a covered work, you similarly covenant to all recipients TO WHOM YOU CONVEY THE WORK, including recipients FROM YOU of works based on the covered work, not to assert any of your essential patent claims in the covered work.

The GPL remains the single most widely used license, and its success has been remarkable. The GPL governs thousands of open-source projects, among them the Linux kernel, the Samba file server software and the MySQL database.

Since the current GPL version 2 was released in 1991, the license has grown from a philosophical, technological, economic and social curiosity to a powerful force in the multibillion-dollar software industry. The fact that HP and other companies want to have a voice in its future is a testament to its influence.

Software governed by the GPL gives programmers and users several built-in freedoms. They may modify, copy and redistribute the software--both the binary files computers actually run and the underlying source code programmers handle. GPLv3 keeps this core intact and adds provisions involving newer computing issues, such as digital rights management and patents.

The GPLv3 revision process--as with the open-source and free movements in general--pits pragmatists against idealists. HP, which argues software patents are a fact of life and which owns thousands of patents, is on a committee advising the foundation on the GPL revision. The foundation and its founder, Richard Stallman, are adamantly opposed to software patents.

The patent provision, as written in the second draft, puts limits on the actions anyone distributing GPL software can take over patent infringement. "If you convey a covered work, you...covenant to all recipients, including recipients of works based on the covered work, not to assert any of your essential patent claims in the covered work," the draft license reads.

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