Is The New GPL a Target?

By Brian Proffitt
Managing Editor

Well. It’s here.

This afternoon, right on schedule, the Free Software Foundation
released Version 3 of the GNU General Public License (GPL).

The language is complex, which some are already complaining
about. Novell seems to have “gotten off,” which others will
complain about. Still others are looking at this license and the
pressure Microsoft is trying to put on the community with its
patent protection racket and are predicting doom and gloom in the
form of a civil war.

This last amuses me to no end. Imagine, the Linux, open source,
and free software communities–gasp!–arguing with each other. Why,
whatever will we do?

If it is the goal of Microsoft to drive a wedge in the
Community, my sincere advice to them is: take a number. We have a
bazillion arguments to hash out alongside this one.

One thing is bothering me, though. Does anyone else wonder why
Microsoft was in such an awful hurry to line up partnership deals
with Linux vendors before the final release of GPL 3? They surely
must have known that the patent promise aspect of these deals were
going to be rendered moot if Linux were licensed under GPL 3.

I see two possibilities: first, they don’t care, because Redmond
knows full well that the chances of the actual Linux kernel being
licensed under GPL 3 is very low. Linus Torvalds and the core
kernel developers have made that abundantly clear. So the chances
of it having its patent protection suddenly applying to every Linux
distribution seems low.

But that doesn’t make sense to me, either, because a Linux
distribution doesn’t just have the Linux kernel. There’s a whole
passel of applications out there that are going to shift to the new
GPL 3; wouldn’t their inclusion in a distribution suddenly affect
these patent deals? Or am I missing something here?

Clearly, this does not affect the Novell-Microsoft arrangement,
since the grandfather clause in GPL 3 lets this deal go through
unmolested. But what about Xandros and Linspire? Are they going to
keep out all GPL 3 software from their distributions? Or will
Microsoft get caught in the sticky trap of the GPL 3 patent
provisions and all of Linux will be safe from intellectual property
litigation forever?

That seems a bit unlikely.

The second possibility is this: Microsoft wants to get caught up
in a direct confrontation with the terms of the GPL 3. The reason
is simple: only when they are directly involved in a license
confrontation with the new GPL will Microsoft have a solid reason
to go after it in court.

Far-fetched? Maybe. But remember the old meme that Microsoft
used to toss out about the GPL? How it was “viral”? Except, as
anyone could tell you, that was a patently false statement (pardon
the pun). That is, until GPL 3 came along. Now, the argument about
the “viral” nature of the GPL may have some legs.

My understanding of the law is very limited, but it seems to me
that if entering an agreement with a Linux distribution (while all
of the distro’s software was GPL 2) gets somehow derailed by
outside developers changing the terms of license to a new GPL that
specifically negates aspects of the original agreement means that
Microsoft could claim that this new GPL is a direct threat to its
business and/or intellectual property. In the past, the GPL 2 not
really viral; you either used it or you didn’t. Now, the GPL 3 has
the capability to affect things outside the software, whether you
chose it or not: because it affects and limits the way Microsoft
can do business and how it can keep its own secrets.

And while we would all love to see Microsoft voluntarily drop
the notion of IP, I don’t think there is any court in this land
that would see the their IP rights forcibly removed from them as a
good thing. And that, I fear, is the potential trap the GPL
faces.

If there is a hole in this line of reasoning, by all means,
point it out. But, if my guess it right, we could see direct
litigation against GPL 3 from Microsoft, rather than IP litigation
for patent infringement. And, because we live in a world where
public perception is often more important than facts, if Microsoft
were to sue the GPL (likely in the form of its makers, the Free
Software Foundation), it is a sire bet that no one will care that
they are challenging GPL 3. People will just hear “GPL,” and all
the old bugaboos about a “viral” GPL will rise from the FUD
grave.

Like I said, I could be off by a mile on this one. I just can’t
shake the fact that, given the very open drafting of GPL 3,
Microsoft had to know what they were walking into. And say what you
will about the folks at Redmond: they aren’t stupid.