New rules change open-source landscape

James Gatto

On June 29, the Free Software Foundation
released Version 3 of the GNU general
public license, one of the best-known and
most widely used open-source licenses.
GPL Version 3 updates Version 2, which
has been in use since 1991.

GPLv3 significantly changes
some provisions and language
and adds some new provisions.
At its core, GPLv3 provides the
same basic rights as its predecessor;
namely, the rights to
copy, modify and redistribute a
GPL-licensed program. It also
imposes an obligation on those
who modify the software and
convey it to others to comply
with certain requirements,
including the requirement to
make the source code available.
Other significant changes
include:

Digital rights management.
One of the
more controversial new provisions of
GPLv3 relates to DRM. Under certain
laws relating to an international
treaty, you typically may prevent others
from circumventing technological
measures you use to protect your
copyrighted works. Section 3 prohibits
works covered by GPLv3 from
being considered an "effective technological
measure" under these laws
and requires that you waive certain
rights that forbid circumvention of
technological measures.

Patents.
GPLv3 adds significant new
patent provisions. Section 7 of GPLv2
had a provision that prevented taking
a patent license to a GPL program
unless the license benefited all who
used the program. This prohibition
has been retained but is now in
Section 12. However, GPLv3 adds
that a licensee under a GPLv3 program
may not initiate litigation,
including a cross-claim or counterclaim
in a lawsuit, alleging that any
patent claim is infringed by the
GPLv3 program or any portion of it.

If you are a contributor to a GPLv3
project, you also grant a royalty-free
patent license under your essential
patent claims to downstream users. If
you convey a covered work, knowingly
relying on a patent license, and the
corresponding source of the work is
not freely available, then you must
cause the corresponding source to be
available, arrange to deprive yourself
of the benefit of the patent license for
this particular work or arrange to
extend the patent license to downstream
recipients.

If you convey a covered work and
grant a patent license to some of the
parties receiving the work, the patent
license is automatically extended to
all recipients of the covered work and
works based on it. Certain prohibitions
against discriminatory patent
licenses have also been added. If you
hold software patents and use or
modify software licensed under
GPLv3, you must understand these
new provisions and how they may
affect your patent rights.

Other changes.
For consumer products,
you must not only make the
source code available but also make it
possible for a user to modify and
update the software on any device
capable of being upgraded in the
field.

Section 8 adds new provisions
regarding termination and your
rights to cure if you inadvertently
breach the license. Section 10
addresses related company transactions.
These now typically will not
trigger an obligation to release the
corresponding source. Certain flexibility
has been added to make the
GPLv3 compatible with some other
open-source licenses with which
GPLv2 was not compatible.

Ironically, GPLv3 is not compatible
with GPLv2. Many new terms are
defined, in part to put the GPL in an
international context and avoid certain
U.S. copyright law-centric terms.
Many other changes have been made.

It is critical to seek guidance from
an attorney experienced in patents
and open-source licensing ? particularly
GPLv3 ? before you decide to
use or distribute software under the
GPL.

James Gatto is an intellectual property
partner at Pillsbury Winthrop Shaw Pittman
LLP. He can be reached at james.gatto@
pillsburylaw.com.

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