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.

Essentially, HP believes that language in the new draft could permanently defang a company's ability to sue for patent infringement in a particular situation. Imagine Company A holds a certain patent. If technology covered by that patent is included in GPL-governed software distributed by Company A, then Company A no longer has the right to sue anyone over infringement of that patent. That applies even if Company A itself didn't write or add that technology, or if another entity--Company B--inserted it into the software.

"Suppose somebody added into the Linux kernel some feature that might go into a Linux distribution, (a feature) we had intended to retain as a differentiator and that we were not expecting was going to become open source," Peterson said. "Our mere redistribution of that would mean we could no longer enforce that patent."

In contrast, with GPLv2 software, a company that stops distributing the affected software is then free to sue for patent infringement, Peterson said.

HP would be happy with a few changes to Section 11, Peterson said. Without them, HP would prefer GPLv2, he said.

"We were hoping some more improvements would be made in the second draft," said Christine Martino, vice president of HP's Open Source and Linux Organization.

Although HP wants to keep its patent litigation options open, Peterson added that he wouldn't expect to sue any open-source organizations for such infringement: "Asserting rights against the open-source community I would think is a very unavailing activity," he said.

Listening to other voices
HP isn't the only company whose views are being taken into account, though, Moglen said.

"The enterprises with very substantial patent portfolios participating in the GPLv3 process have divergent views about optimal patent licensing strategy," he said. "Accordingly, they have equally disparate views about how GPLv3 should treat patent claims held by those who contribute to, as well as those who distribute, GPL code."

Other prominent voices have lodged objections.

Torvalds has been sharply critical about the digital rights management provision of the GPLv3 draft, arguing that it reaches inappropriately into the domain of hardware. He also has criticized the foundation's philosophy.

Unless things changes dramatically, the Linux kernel will be unaffected by changes in GPLv3. Years ago, Torvalds opted to govern the software only under GPLv2, expressly omitting the "or later version" wording the foundation recommends.

Even if the GPL moves to version 3 without Torvalds, though, he remains an influential programmer.

"If the kernel is under GPLv2, (it's) awkward," Peterson said. "It creates the question whether other projects would look to that for thought leadership."

Despite its concerns, though, HP is pleased with the overall GPLv3 process--especially given the tremendous breadth of interests involved, Martino said. "The FSF has done an excellent job creating a real open process across a huge community."

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