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Rewrite the entire Patent section.

Browse source 
Much of this text, pasted from various different rationale documents, deals
with issues that either changed in later drafts, or is focused on various
minutia about the Microsoft/Novell deal that seems in retrospect rather
unimportant for many reasons.

Hopefully what I've cut down to is the bare essentials of what's needed to
explain the patent section of GPLv3 to a newbie.  I suspect that I'll want
later to go over this and add more material or reword things further.

I've added a few FIXME-LATER's for that reason.
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Bradley M. Kuhn 2014-03-20 20:30:06 -04:00 committed by donaldr3
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@ -3287,211 +3287,149 @@ royalties. This section is an appropriate place for such a clause, since it
is a specific consequence of the general requirement that no further
restrictions be imposed on downstream recipients of GPL-covered code.
Careful readers of the GPL have suggested that its explicit prohibition
against imposition of further restrictions\footnote{GPLv2, section 6; Draft
3, section 10, third paragraph.} has, or ought to have, implications for
those who assert patents against other licensees. Draft 2 took some steps to
clarify this point in a manner not specific to patents, by describing the
imposition of ``a license fee, royalty, or other charge'' for exercising GPL
rights as one example of an impermissible further restriction. In Draft 3 we
have clarified further that the requirement of non-imposition of further
restrictions has specific consequences for litigation accusing GPL-covered
programs of infringement. Section 10 now states that ``you may not initiate
litigation (including a cross-claim or counterclaim in a lawsuit) alleging
that any patent claim is infringed by making, using, selling, offering for
sale, or importing the Program (or the contribution of any contributor).''
That is to say, a patent holder's licensed permissions to use a work under
GPLv3 may be terminated under section 8 if the patent holder files a lawsuit
alleging that use of the work, or of any upstream GPLv3-licensed work on
which the work is based, infringes a patent.
% FIXME-LATER: This text needs further study before I can conclude it belongs
% in this tutorial:
%% Careful readers of the GPL have suggested that its explicit prohibition
%% against imposition of further restrictions\footnote{GPLv2, section 6; Draft
%% 3, section 10, third paragraph.} has, or ought to have, implications for
%% those who assert patents against other licensees. Draft 2 took some steps to
%% clarify this point in a manner not specific to patents, by describing the
%% imposition of ``a license fee, royalty, or other charge'' for exercising GPL
%% rights as one example of an impermissible further restriction. In Draft 3 we
%% have clarified further that the requirement of non-imposition of further
%% restrictions has specific consequences for litigation accusing GPL-covered
%% programs of infringement. Section 10 now states that ``you may not initiate
%% litigation (including a cross-claim or counterclaim in a lawsuit) alleging
%% that any patent claim is infringed by making, using, selling, offering for
%% sale, or importing the Program (or the contribution of any contributor).''
%% That is to say, a patent holder's licensed permissions to use a work under
%% GPLv3 may be terminated under section 8 if the patent holder files a lawsuit
%% alleging that use of the work, or of any upstream GPLv3-licensed work on
%% which the work is based, infringes a patent.
\section{GPLv3~\S11: Explicit Patent Licensing}
\label{GPLv3s11}
% FIXME: These don't belong here, but it's closer to where it ought to be now.
It is important to note that section 11, paragraph 3 refers to a work that is
conveyed, and section 10, paragraph 2 refers to a kind of automatic
counterpart to conveying achieved as the result of a transaction.
The patent licensing practices that section 7 of GPLv2 (corresponding to
section 12 of GPLv3) was designed to prevent are one of several ways in which
software patents threaten to make free programs non-free and to prevent users
from exercising their rights under the GPL. GPLv3 takes a more comprehensive
approach to combatting the danger of patents.
Software patenting is a harmful and unjust policy, and should be abolished;
recent experience makes this all the more evident. Since many countries grant
patents that can apply to and prohibit software packages, in various guises
and to varying degrees, we seek to protect the users of GPL-covered programs
and to varying degrees, GPLv3 seeks to protect the users of GPL-covered programs
from those patents, while at the same time making it feasible for patent
holders to contribute to and distribute GPL-covered programs as long as they
do not attack the users of those programs.
It is generally understood that GPLv2 implies some limits on a licensee's
power to assert patent claims against the use of GPL-covered works.
However, the patent licensing practices that GPLv2~\S7 (corresponding to
GPLv3~\S12) is designed to prevent is only one of several ways in which
software patents threaten to make free programs non-free and to prevent users
from exercising their rights under the GPL. GPLv3 takes a more comprehensive
approach to combatting the danger of patents.
Therefore, we have designed GPLv3 to reduce the patent risks that distort and
threaten the activities of users who make, run, modify and share free
software. At the same time, we have given due consideration to practical
GPLv2~\S7 has seen some success in deterring conduct that would otherwise
result in denial of full downstream enjoyment of GPL rights, and thus it is
preserved in GPLv3~\S12. Experience has shown that more is necessary,
however, to ensure adequate community safety where companies act in concert
to heighten the anticompetitive use of patents that they hold or license.
Therefore, GPLv3 is designed to reduce the patent risks that distort and
threaten the activities of users who make, run, modify and share Free
Software. At the same time, GPLv3 gives favorable consideration to practical
goals such as certainty and administrability for patent holders that
participate in distribution and development of GPL-covered software. Our
participate in distribution and development of GPL-covered software. GPLv3's
policy requires each such patent holder to provide appropriate levels of
patent assurance to users, according to the nature of the patent holder's
relationship to the program.
Draft 3 features several significant changes concerning patents. We have
made improvements to earlier wording, clarified when patent assertion becomes
a prohibited restriction on GPL rights, and replaced a distribution-triggered
non-assertion covenant with a contribution-based patent license grant. We
have also added provisions to block collusion by patent holders with software
distributors that would extend patent licenses in a discriminatory way.
\subsection{The Contributor's Explicit Patent License}
Draft 3 introduces the terms ``contributor'' and ``contribution,'' which are
used in the third paragraph of section 10 and the first paragraph of section
11, discussed successively in the following two subsections. Section 0
defines a contributor as ``a party who licenses under this License a work on
which the Program is based.'' That work is the ``contribution'' of that
contributor. In other words, each received GPLv3-covered work is associated
with one or more contributors, making up the finite set of upstream GPLv3
licensors for that work. Viewed from the perspective of a recipient of the
Program, contributors include all the copyright holders for the Program,
other than copyright holders of material originally licensed under non-GPL
terms and later incorporated into a GPL-covered work. The contributors are
therefore the initial GPLv3 licensors of the Program and all subsequent
upstream licensors who convey, under the terms of section 5, modified works
on which the Program is based.
For a contributor whose contribution is a modified work conveyed under
section 5, the contribution is ``the entire work, as a whole'' which the
contributor is required to license under GPLv3. The contribution therefore
includes not just the material added or altered by the contributor, but also
the pre-existing material the contributor copied from the upstream version
and retained in the modified version. Our usage of ``contributor'' and
``contribution'' should not be confused with the various other ways in which
those terms are used in certain other free software licenses.\footnote{Cf.,
e.g., Apache License, version 2.0, section 1; Eclipse Public License,
version 1.0, section 1; Mozilla Public License, version 1.1, section 1.1.}
The term ``patent license,'' as used in the third through fifth
paragraphs of section 11, is not meant to be confined to agreements
formally identified or classified as patent licenses. The new second
paragraph of section 11 makes this clear by defining ``patent license,''
for purposes of the subsequent three paragraphs, as ``a patent license,
a covenant not to bring suit for patent infringement, or any other
express agreement or commitment, however denominated, not to enforce a
patent.'' The definition does not include patent licenses that arise by
implication or operation of law, because the third through fifth
paragraphs of section 11 are specifically concerned with explicit
promises that purport to be legally enforceable.
Our previous drafts featured a patent license grant triggered by all
acts of distribution of GPLv3-covered works.\footnote{In Draft 2 we
rewrote the patent license as a covenant not to assert patent claims. We
explain why we reverted to the form of a patent license grant in \S\
\ref{cov}.} Many patent-holding companies objected to this policy. They
have made two objections: (1) the far-reaching impact of the patent
license grant on the patent holder is disproportionate to the act of
merely distributing code without modification or transformation, and (2)
it is unreasonable to expect an owner of vast patent assets to exercise
requisite diligence in reviewing all the GPL-covered software that it
provides to others. Some expressed particular concern about the
consequences of ``inadvertent'' distribution.
Specifically, the ideal might have been for GPLv3 to feature a patent license
grant triggered by all acts of distribution of GPLv3-covered works. The FSF
considered it during the GPLv3 drafting process, but many patent-holding
companies objected to this policy. They have made two objections: (1) the
far-reaching impact of the patent license grant on the patent holder is
disproportionate to the act of merely distributing code without modification
or transformation, and (2) it is unreasonable to expect an owner of vast
patent assets to exercise requisite diligence in reviewing all the
GPL-covered software that it provides to others. Some expressed particular
concern about the consequences of ``inadvertent'' distribution.
The argument that the impact of the patent license grant would be
``disproportionate,'' that is to say unfair, is not valid. Since
``disproportionate'', that is to say unfair, is not valid. Since
software patents are weapons that no one should have, and using them for
aggression against free software developers is an egregious act,
preventing that act cannot be unfair.
aggression against free software developers is an egregious act (thus
preventing that act cannot be unfair).
However, the second argument seems valid in a practical sense. A
typical GNU/Linux distribution includes thousands of programs. It would
typical GNU/Linux distribution includes thousands of programs. It would
be quite difficult for a redistributor with a large patent portfolio to
review all those programs against that portfolio every time it receives
and passes on a new version of the distribution. Moreover, this question
and passes on a new version of the distribution. Moreover, this question
raises a strategic issue. If the GPLv3 patent license requirements
convince patent-holding companies to remain outside the distribution
path of all GPL-covered software, then these requirements, no matter how
strong, will cover few patents.
We concluded it would be more effective to make a partial concession
GPLv3 therefore makes a partial concession
which would lead these companies to feel secure in doing the
distribution themselves, so that the conditions of section 10 would
apply to assertion of their patents. We therefore made the stricter
section 11 patent license apply only to those distributors that have
distribution themselves. GPLv3~\S11
applies only to those distributors that have
modified the program. The other changes we have made in sections 10 and
11 provide strengthened defenses against patent assertion and compensate
partly for this concession.
Therefore, in Draft 3, the first paragraph of section 11 states that a
contributor's patent license covers all the essential patent claims
implemented by the whole program as that contributor distributes it.
Contributors of modified works grant a patent license to claims that
read on ``the entire work, as a whole.'' This is the work that the
copyleft clause in section 5 requires the contributor to license under
GPLv3; it includes the material the contributor has copied from the
upstream version that the contributor has modified. The first paragraph
of section 11 does not apply to those that redistribute the program
Therefore, GPLv3~\S11 introduces the terms ``contributor'', ``contributor version'', and
``essential patent claims'', which are
used in the GPLv3~\S11\P3. Viewed from the perspective of a recipient of the
Program, contributors include all the copyright holders for the Program,
other than copyright holders of material originally licensed under non-GPL
terms and later incorporated into a GPL-covered work. The contributors are
therefore the initial GPLv3 licensors of the Program and all subsequent
upstream licensors who convey, under the terms of GPLv3~\S5, modified covered
works.
Thus, the ``contributor version'' includes the material the contributor has copied from the
upstream version that the contributor has modified. GPLv3~\S11\P3
does not apply to those that redistribute the program
without change.\footnote{An implied patent license from the distributor,
however, may arise by operation of law. See the final paragraph of
section 11. Moreover, distributors are subject to the limits on patent
assertion contained in the third paragraph of section 10.}
however, often arises. See \S~\ref{gpl-implied-patent-grant} in this tutorial}
In other words, the ``contributor version'' includes not just
the material added or altered by the contributor, but also the pre-existing
material the contributor copied from the upstream version and retained in the
modified version. (GPLv3's usage of ``contributor'' and ``contribution'' should
not be confused with the various other ways in which those terms are used in
certain other free software licenses\footnote{Cf., e.g., Apache License,
version 2.0, section 1; Eclipse Public License, version 1.0, section 1;
Mozilla Public License, version 1.1, section 1.1.}.)
We hope that this decision will result in fairly frequent licensing of
patent claims by contributors. A contributor is charged with awareness
of the fact that it has modified a work and provided it to others; no
act of contribution should be treated as inadvertent. Our rule also
requires no more work, for a contributor, than the weaker rule proposed
by the patent holders. Under their rule, the contributor must always
compare the entire work against its patent portfolio to determine
whether the combination of the modifications with the remainder of the
work cause it to read on any of the contributor's patent claims.
Some details of the ``essential patent claims'' definition deserve special
mention. ``Essential patent claims'', for a given party, are a subset of the
claims ``owned or controlled'' by the party. They do include sublicensable
claims that have been licensed to the contributor by a third
party.\footnote{This issue is typically handled in other software freedom
licenses having patent licensing provisions by use of the unhelpful term
``licensable,'' which is either left undefined or is given an ambiguous
definition.} Most commercial patent license agreements that permit
sublicensing do so under restrictive terms that are inconsistent with the
requirements of the GPL\@. For example, some patent licenses allow the
patent licensee to sublicense but require collection of royalties from any
sublicensees. The patent licensee could not distribute a GPL-covered program
and grant the recipient a patent sublicense for the program without violating
section 12 of GPLv3.\footnote{GPLv3 also provides an example in section 12
that makes this point clear.} In rare cases, however, a conveying party
can freely grant patent sublicenses to downstream recipients without
violating the GPL\@.
Additionally, ``essential patent claims'' are those patents ``that would be
infringed by some manner, permitted by this License, of making, using, or
selling the work''. This intends to make clear that a patent claim is
``essential'' if some mode of usage would infringe that claim, even if there
are other modes of usage that would not infringe.
We have made three changes to the definition of ``essential patent
claims'' in section 0. This definition now serves exclusively to
identify the set of patent claims licensed by a contributor under the
first paragraph of section 11.
First, we have clarified when essential patent claims include
sublicensable claims that have been licensed to the contributor by a
third party.\footnote{This issue is typically handled in other free
software licenses having patent licensing provisions by use of the
unhelpful term ``licensable,'' which is either left undefined or is
given an ambiguous definition.} Most commercial patent license
agreements that permit sublicensing do so under restrictive terms that
are inconsistent with the requirements of the GPL. For example, some
patent licenses allow the patent licensee to sublicense but require
collection of royalties from any sublicensees. The patent licensee
could not distribute a GPL-covered program and grant the recipient a
patent sublicense for the program without violating section 12 of
GPLv3.\footnote{Draft 3 provides a new example in section 12 that makes
this point clear.} In rare cases, however, a conveying party can freely
grant patent sublicenses to downstream recipients without violating the
GPL.
Draft 3 now defines essential patent claims, for a given party, as a
subset of the claims ``owned or controlled'' by the party. The
definition states that ``control includes the right to grant sublicenses
in a manner consistent with the requirements of this License.''
Therefore, in the case of a patent license that requires collection of
royalties from sublicensees, essential patent claims would not include
any claims sublicensable under that patent license, because sublicenses
to those claims could not be granted consistent with section 12.
Second, we now state that essential patent claims are those ``that would
be infringed by some manner, permitted by this License, of making,
using, or selling the work.'' This modified wording is intended to make
clear that a patent claim is ``essential'' if some mode of usage would
infringe that claim, even if there are other modes of usage that would
not infringe.
Third, we have clarified that essential patent claims ``do not include
Finally, ``essential patent claims \ldots do not include
claims that would be infringed only as a consequence of further
modification of the work.'' That is to say, the set of essential patent
claims licensed under the first paragraph of section 11 is fixed by the
modification of the work.'' The set of essential patent
claims licensed is fixed by the
the particular version of the work that was contributed. The claim set
cannot expand as a work is further modified downstream. (If it could,
then any software patent claim would be included, since any software
@ -3502,424 +3440,130 @@ distributing, a program, where the same program might be provided in
other forms or in other ways that may be captured by other patent claims
held by the contributor.}
\medskip
The downstream shielding provision of section 11 responds particularly
to the problem of exclusive deals between patent holders and
distributors, which threaten to distort the free software distribution
system in a manner adverse to developers and users. Draft 2 added a
source code availability option to this provision, as a specific
alternative to the general requirement to shield downstream users from
patent claims licensed to the distributor. A distributor conveying a
covered work knowingly relying on a patent license may comply with the
provision by ensuring that the Corresponding Source of the work is
publicly available, free of charge. We retained the shielding option in
Draft 2 because we did not wish to impose a general requirement to make
source code available to all, which has never been a GPL condition.
Ideally, this contributor patent policy will result in fairly frequent licensing of patent
claims by contributors. A contributor is charged with awareness of the fact
that it has modified a work and provided it to others; no act of contribution
should be treated as inadvertent. GPLv3's rule also requires no more work, for a
contributor, than the weaker rule proposed by the patent holders. Under
their rule, the contributor must always compare the entire work against its
patent portfolio to determine whether the combination of the modifications
with the remainder of the work cause it to read on any of the contributor's
patent claims.
The addition of the source code availability option was supported by the
free software vendors most likely to be affected by the downstream
shielding provision. Enterprises that primarily use and occasionally
distribute free software, however, raised concerns regarding the
continued inclusion of a broadly-worded requirement to ``shield,'' which
appears to have been mistakenly read by those parties as creating an
obligation to indemnify. To satisfy these concerns, in Draft 3 we have
replaced the option to shield with two specific alternatives to the
source code availability option. The distributor may comply by
disclaiming the patent license it has been granted for the conveyed
work, or by arranging to extend the patent license to downstream
recipients.\footnote{The latter option, if chosen, must be done ``in a
manner consistent with the requirements of this License''; for example,
it is unavailable if extension of the patent license would result in a
violation of section 12. Cf.~the discussion of sublicensable patent
claims in \S\ \ref{epc}.} The GPL is intended to permit private
distribution as well as public distribution, and the addition of these
options ensures that this remains the case, even though we expect that
distributors in this situation will usually choose the source code
availability option.
\subsection{Conveyors' Patent Licensing}
Without altering its underlying logic, we have modified the phrasing of
the requirement to make clear that it is activated only if the
Corresponding Source is not already otherwise publicly available. (Most
often it will, in fact, already be available on some network server
operated by a third party.) Even if it is not already available, the
option to ``cause the Corresponding Source to be so available'' can then
be satisfied by verifying that a third party has acted to make it
available. That is to say, the affected distributor need not itself
host the Corresponding Source to take advantage of the source code
availability option. This subtlety may help the distributor avoid
certain peculiar assumptions of liability.
The remaining patent licensing in GPLv3 deals with patent licenses that are
granted by conveyance. The licensing is not as complete or far reaching at
the contributor patent licenses discussed in the preceding section.
We have made two other changes to the downstream shielding provision.
The phrase ``knowingly rely'' was left undefined in our earlier drafts;
in Draft 3 we have provided a detailed definition. We have also deleted
the condition precedent, added in Draft 2, that the relied-upon patent
license be one that is non-sublicensable and ``not generally available
to all''; this was imprecise in Draft 2 and is unnecessary in Draft
3. In nearly all cases in which the ``knowingly relying'' test is met,
the patent license will indeed not be sublicensable or generally
available to all on free terms. If, on the other hand, the patent
license is generally available under terms consistent with the
requirements of the GPL, the distributor is automatically in compliance,
because the patent license has already been extended to all downstream
recipients. If the patent license is sublicensable on GPL-consistent
terms, the distributor may choose to grant sublicenses to downstream
recipients instead of causing source code to be publicly available. In
such a case, if the distributor is also a contributor, it will already
have granted a patent sublicense by operation of the first paragraph of
section 11,\footnote{See \S\ \ref{epc}.} and so it need not do anything
further to comply with the third paragraph.
The term ``patent license,'' as used in GPLv3~\S11\P4--6, is not meant to be
confined to agreements formally identified or classified as patent licenses.
GPLv3~\S11\P3 makes this clear by defining ``patent
license,'' for purposes of the subsequent three paragraphs, as ``any express
agreement or commitment, however denominated, not to enforce a patent
(such as an express permission to practice a patent or covenant not to
sue for patent infringement)''
% FIXME: This probably needs editing
% FIME-LATER: I want to ask Fontana about this before adding it.
One major goal for GPLv3 is to provide developers with additional protection
from being sued for patent infringement. After much feedback and cooperation
from the committees, we are now proposing a patent license which closely
resembles those found in other free software licenses. This will be more
comfortable for everyone in the free software community to use, without
creating undue burdens for distributors.
% The definition does not include patent licenses that arise by
% implication or operation of law, because the third through fifth paragraphs
% of section 11 are specifically concerned with explicit promises that purport
% to be legally enforceable.
We have also added new terms to stop distributors from colluding with third
parties to offer selective patent protection, as Microsoft and Novell have
recently done. The GPL is designed to ensure that all users receive the
same rights; arrangements that circumvent this make a mockery of free
software, and we must do everything in our power to stop them.
GPLv3~\S11\P5 is commonly called GPLv3's downstream shielding provision. It
responds particularly to the problem of exclusive deals between patent
holders and distributors, which threaten to distort the free software
distribution system in a manner adverse to developers and users. The
fundamental idea is to make a trade-off between assuring a patent license for
downstream and making (possibly patent-encumbered) CCS publicly available.
Our strategy has two parts. First, any license that protects some
recipients of GPLed software must be extended to all recipients of the
software. Second, we prohibit anyone who made such an agreement from
distributing software released under GPLv3. We are still considering
whether or not this ban should apply when a deal was made before these
terms were written, and we look forward to community input on this issue.
Simply put, in nearly all cases in which the ``knowingly relying'' test is
met, the patent license will indeed not be sublicensable or generally
available to all on free terms. If, on the other hand, the patent license is
generally available under terms consistent with the requirements of the GPL,
the distributor is automatically in compliance, because the patent license
has already been extended to all downstream recipients. Finally, if the
patent license is sublicensable on GPL-consistent terms, the distributor may
choose to grant sublicenses to downstream recipients instead of causing the
CCS to be publicly available. (In such a case, if the distributor is also a
contributor, it will already have granted a patent sublicense anyway, and so
it need not do anything further to comply with the third paragraph.)
The patent license grant of the first paragraph of section 11 no longer
applies to those who merely distribute works without modification. (We
explain why we made this change in the next subsection.) Such parties are
nonetheless subject to the conditions stated in section 10. Unlike the
patent license, which establishes a defense for downstream users lasting for
as long as they remain in compliance with the GPL, the commitment not to sue
that arises under section 10 is one that the distributor can end, so long as
the distributor also ceases to distribute. This is because a party who
initiates patent litigation in violation of section 10 risks termination of
its licensed permissions by the copyright holders of the work.
Admittedly, public disclosure of CCS is not necessarily required in by other
sections of the GPL, and the FSF in drafting GPLv3 did not necessarily wish
to impose a general requirement to make source code available to all, which
has never been a GPL condition. However, many vendors who produce products
that include copylefted software, and who most likely to be affected by the
downstream shielding provision, lobbied for the addition of the source code
availability option, so it remains.
% FIXME: just brought in words here, needs rewriting.
Meanwhile, two specific alternatives to the source code availability option
are also available. The distributor may comply by disclaiming the patent
license it has been granted for the conveyed work, or by arranging to extend
the patent license to downstream recipients\footnote{The latter option, if
chosen, must be done ``in a manner consistent with the requirements of this
License''; for example, it is unavailable if extension of the patent
license would result in a violation of GPLv3~\S 12.}. The GPL is intended
to permit private distribution as well as public distribution, and the
addition of these options ensures that this remains the case, even though it
remains likely that distributors in this situation will usually choose the
source code availability option.
is rooted in the basic principles of the GPL.
Our license has always stated that distributors may not impose further
restrictions on users' exercise of GPL rights. To make the suggested
distinction between contribution and distribution is to allow a
distributor to demand patent royalties from a direct or indirect
recipient, based on claims embodied in the distributed code. This
undeniably burdens users with an additional legal restriction on their
rights, in violation of the license.
Note that GPLv3~\S11\P5 is activated only if the CCS is not already otherwise
publicly available. (Most often it will, in fact, already be available on
some network server operated by a third party.) Even if it is not already
available, the option to ``cause the Corresponding Source to be so
available'' can then be satisfied by verifying that a third party has acted
to make it available. That is to say, the affected distributor need not
itself host the CCS to take advantage of the source code availability option.
This subtlety may help the distributor avoid certain peculiar assumptions of
liability.
%FIXME: possible useful text, but maybe not.
Note that GPLv3~\S11\P6--7 are designed to stop distributors from colluding with
third parties to offer selective patent protection. GPLv3 is designed to
ensure that all users receive the same rights; arrangements that circumvent
this make a mockery of free software, and we must do everything in our power
to stop them.
In the covenant provided in the revised section 11, the set of claims
that a party undertakes not to assert against downstream users are that
party's ``essential patent claims'' in the work conveyed by the party.
``Essential patent claims,'' a new term defined in section 0, are simply
all claims ``that would be infringed by making, using, or selling the
work.'' We have abandoned the phrase ``reasonably contemplated use.''
This change makes the obligations of distributing patent holders more
predictable.
% FIXME: probably needs a lot of work, these provisions changed over time.
GPLv3 adds a new section on licensing of patents. GPLv2 relies on an implied
patent license. The doctrine of implied license is one that is recognized
under United States patent law but may not be recognized in other
jurisdictions. We have therefore decided to make the patent license grant
explicit in GPLv3. Under section 11, a redistributor of a GPL'd work
automatically grants a nonexclusive, royalty-free and worldwide license for
any patent claims held by the redistributor, if those claims would be
infringed by the work or a reasonably contemplated use of the work.
% FIXME: probably needs a lot of work, these provisions changed over time.
The patent license is granted both to recipients of the redistributed work
and to any other users who have received any version of the work. Section 11
therefore ensures that downstream users of GPL'd code and works derived from
GPL'd code are protected from the threat of patent infringement allegations
made by upstream distributors, regardless of which country's laws are held to
apply to any particular aspect of the distribution or licensing of the GPL'd
code.
% FIXME: probably needs a lot of work, these provisions changed over time.
A redistributor of GPL'd code may benefit from a patent license that has been
granted by a third party, where the third party otherwise could bring a
patent infringement lawsuit against the redistributor based on the
distribution or other use of the code. In such a case, downstream users of
the redistributed code generally remain vulnerable to the applicable patent
claims of the third party. This threatens to defeat the purposes of the GPL,
for the third party could prevent any downstream users from exercising the
freedoms that the license seeks to guarantee.
% FIXME: probably needs a lot of work, these provisions changed over time.
The second paragraph of section 11 addresses this problem by requiring the
redistributor to act to shield downstream users from these patent claims. The
requirement applies only to those redistributors who distribute knowingly
relying on a patent license. Many companies enter into blanket patent
cross-licensing agreements. With respect to some such agreements, it would
not be reasonable to expect a company to know that a particular patent
license covered by the agreement, but not specifically mentioned in it,
protects the company's distribution of GPL'd code.
% FIXME: does this still fit with the final retaliation provision?
This narrowly-targeted patent retaliation provision is the only form of
patent retaliation that GPLv3 imposes by its own force. We believe that it
strikes a proper balance between preserving the freedom of a user to run and
modify a program, and protecting the rights of other users to run, modify,
copy, and distribute code free from threats by patent holders. It is
particularly intended to discourage a GPL licensee from securing a patent
directed to unreleased modifications of GPL'd code and then suing the
original developers or others for making their own equivalent modifications.
Several other free software licenses include significantly broader patent
retaliation provisions. In our view, too little is known about the
consequences of these forms of patent retaliation. As we explain below,
section 7 permits distribution of a GPL'd work that includes added parts
covered by terms other than those of the GPL. Such terms may include certain
kinds of patent retaliation provisions that are broader than those of section
2.
% FIXME: should we mention Microsoft-Novell at all?
Section 7 of GPLv2 (now section 12 of GPLv3) has seen some success in
deterring conduct that would otherwise result in denial of full downstream
enjoyment of GPL rights. Experience has shown us that more is necessary,
however, to ensure adequate community safety where companies act in concert
to heighten the anticompetitive use of patents that they hold or license.
Previous drafts of GPLv3 included a ``downstream shielding'' provision in
section 11, which we have further refined in Draft 3; it is now found in the
third paragraph of section 11. In addition, Draft 3 introduces two new
provisions in section 11, located in the fourth and fifth paragraphs, that
address the problem of collusive extension of patent forbearance promises
that discriminate against particular classes of users and against the
exercise of particular freedoms. This problem has been made more acute by the
recent Microsoft/Novell deal.
We attack the Microsoft-Novell deal from two angles. First, in the sixth
paragraph of section 11, the draft says that if you arrange to provide patent
First, GPLv3~\S11\P6 states that any license that protects some recipients of
GPLed software must be extended to all recipients of the software.
If conveyors arrange to provide patent
protection to some of the people who get the software from you, that
protection is automatically extended to everyone who receives the software,
no matter how they get it. This means that the patent protection Microsoft
has extended to Novell's customers would be extended to everyone who uses any
software Novell distributes under GPLv3.
no matter how they get it.
Second, in the seventh paragraph, the draft says that you are prohibited from
distributing software under GPLv3 if you make an agreement like the
Microsoft-Novell deal in the future. This will prevent other distributors
from trying to make other deals like it.
Second, GPLv3~\S11\P7
prohibit anyone who made such an agreement from distributing software
released under GPLv3. Conveyors are prohibited from
distributing software under GPLv3 if the conveyor makes an agreement of that
nature in the future.
The main reason for this is tactical. We believe we can do more to
protect the community by allowing Novell to use software under GPL
version 3 than by forbidding it to do so. This is because of
The date in GPLv3~\S11\P7 likely seems arbitrary to those who did not follow
the GPLv3 drafting process. This issue was hotly debated during the drafting of
GPLv3, but ultimately one specific deal of this type --- a deal between Microsoft
and Novell for Microsoft to provide so-called ``coupons'' to Microsoft customers to redeem
for copies of Novell's GNU/Linux distribution with a Microsoft patent license -- was
designed to be excluded.
The main reason for this was a tactical decision by the FSF. FSF believed they can do more to
protect the community by allowing Novell to use software under GPLv3
than by forbidding it to do so. This is because of
paragraph 6 of section 11 (corresponding to paragraph 4 in Draft 3).
It will apply, under the Microsoft/Novell deal, because of the coupons
that Microsoft has acquired that essentially commit it to participate
in the distribution of the Novell SLES GNU/Linux system.
Microsoft is scrambling to dispose of as many Novell SLES coupons as
possible prior to the adoption of GPLv3. Unfortunately for Microsoft,
those coupons bear no expiration date, and paragraph 6 has no cut-off
date. Through its ongoing distribution of coupons, Microsoft will
have procured the distribution of GPLv3-covered programs as soon as
they are included in Novell SLES distributions, thereby extending
patent defenses to all downstream recipients of that software by
operation of paragraph 6.
A secondary reason is to avoid affecting other kinds of agreements for
other kinds of activities. We have tried to take care in paragraph 7
to distinguish pernicious deals of the Microsoft/Novell type from
business conduct that is not particularly harmful, but we cannot be
sure we have entirely succeeded. There remains some risk that other
unchangeable past agreements could fall within its scope.
The FSF also gave a secondary reason: to avoid affecting other kinds of agreements for
other kinds of activities. While GPLv3 sought to
distinguish pernicious deals of the Microsoft/Novell type from
business conduct that is not particularly harmful, the FSF also did not
assume success in that drafting, and thus there remained some risk that other
unchangeable past agreements could fall within the scope of GPLv3~\S11\P7.
In future deals, distributors engaging in ordinary business practices
can structure the agreements so that they do not fall under paragraph
7. However, it will block Microsoft and other patent aggressors from
further such attempts to subvert parts of our community.
A software patent forbids the use of a technique or algorithm, and its
existence is a threat to all software developers and users. A patent
holder can use a patent to suppress any program which implements the
patented technique, even if thousands of other techniques are
implemented together with it. Both free software and proprietary
software are threatened with death in this way.
However, patents threaten free software with a fate worse than death: a
patent holder might also try to use the patent to impose restrictions on
use or distribution of a free program, such as to make users feel they
must pay for permission to use it. This would effectively make it
proprietary software, exactly what the GPL is intended to prevent.
Novell and Microsoft have recently attempted a new way of using patents
against our community, which involves a narrow and discriminatory
promise by a patent holder not to sue customers of one particular
distributor of a GPL-covered program. Such deals threaten our community
in several ways, each of which may be regarded as de facto
proprietization of the software. If users are frightened into paying
that one distributor just to be safe from lawsuits, in effect they are
paying for permission to use the program. They effectively deny even
these customers the full and safe exercise of some of the freedoms
granted by the GPL. And they make disfavored free software developers
and distributors more vulnerable to attacks of patent aggression, by
dividing them from another part of our community, the commercial users
that might otherwise come to their defense.
We have added the fourth and fifth paragraphs of section 11 to combat
this threat. This subsection briefly describes the operation of the new
provisions. We follow it with a more detailed separate note on the
Microsoft/Novell patent deal, in which we provide an extensive rationale
for these measures.
As noted, one effect of the discriminatory patent promise is to divide
and isolate those who make free software from the commercial users to
whom the promise is extended. This deprives the noncommercial
developers of the communal defensive measures against patents made
possible by the support of those commercial users. The fourth paragraph
of section 11 operates to restore effective defenses to the targets of
patent aggression.
A patent holder becomes subject to the fourth paragraph of section 11
when it enters into a transaction or arrangement that involves two acts:
(1) conveying a GPLv3-covered work, and (2) offering to some, but not
all, of the work's eventual users a patent license for particular
activities using specific copies of the covered work. This paragraph
only operates when the two triggering acts are part of a single
arrangement, because the patent license is part of the arrangement for
conveying, which requires copyright permission. Under those conditions,
the discriminatory patent license is ``automatically extended to all
recipients of the covered work and works based on it.''
This provision establishes a defense to infringement allegations brought
by the patent holder against any users of the program who are not
covered by the discriminatory patent license. That is to say, it gives
all recipients the benefit of the patent promise that the patent holder
extended only to some. The effect is to make contributing discriminatory
promises of patent safety to a GPL distribution essentially like
contributing code. In both cases, the operation of the GPL extends
license permission to everyone that receives a copy of the program.
The fourth paragraph of section 11 gives users a defense against patent
aggression brought by the party who made the discriminatory patent
promise that excluded them. By contrast, the fifth paragraph stops free
software vendors from contracting with patent holders to make
discriminatory patent promises. In effect, the fifth paragraph extends
the principle of section 12 to situations involving collusion between a
patent holder and a distributor.
Under this provision, a distributor conveying a GPL-covered program may
not make an arrangement to get a discriminatory patent promise from a
third party for its customers, covering copies of the program (or
products that contain the program), if the arrangement requires the
distributor to make payment to the third party based on the extent of
its activity in conveying the program, and if the third party is itself
in the business of distributing software. Unlike the fourth paragraph,
which creates a legal defense for targets of patent aggression, the
consequence for violation of the fifth paragraph is termination of GPL
permissions for the distributor.
The business, technical, and patent cooperation agreement between
Microsoft and Novell announced in November 2006 has significantly
affected the development of Draft 3. The fourth and fifth paragraphs of
section 11 embody our response to the sort of threat represented by the
Microsoft/Novell deal, and are designed to protect users from such
deals, and prevent or deter the making of such deals.
The details of the agreements entered into between Microsoft and Novell,
though subject to eventual public disclosure through the securities
regulation system, have not been fully disclosed to this
point.\footnote{Lawyers employed by the Software Freedom Law Center,
which is counsel to the Free Software Foundation and other relevant free
software clients, were accorded limited access to the terms of the deal
under a non-disclosure agreement between SFLC and Novell. The reasons
for delay in the application of securities regulations requiring
publication of the relevant contracts are unrelated to the deal between
Microsoft and Novell.} It is a matter of public knowledge, however,
that the arrangement calls for Novell to pay a portion of the future
gross revenue of one of its divisions to Microsoft, and that (as one
other feature of a complex arrangement) Microsoft has promised Novell's
customers not to bring patent infringement actions against certain
specific copies of Novell's SUSE ``Linux''\footnote{This is a GNU/Linux
distribution, and is properly called SUSE GNU/Linux Enterprise Server.}
Enterprise Server product for which Novell receives revenue from the
user, so long as the user does not make or distribute additional copies
of SLES.
The basic harm that such an agreement can do is to make the free
software subject to it effectively proprietary. This result occurs to
the extent that users feel compelled, by the threat of the patent, to
get their copies in this way. So far, the Microsoft/Novell deal does
not seem to have had this result, or at least not very much: users do
not seem to be choosing Novell for this reason. But we cannot take for
granted that such threats will always fail to harm the community. We
take the threat seriously, and we have decided to act to block such
threats, and to reduce their potential to do harm. Such deals also
offer patent holders a crack through which to split the community.
Offering commercial users the chance to buy limited promises of patent
safety in effect invites each of them to make a separate peace with
patent aggressors, and abandon the rest of our community to its fate.
Microsoft has been restrained from patent aggression in the past by the
vocal opposition of its own enterprise customers, who now also use free
software systems to run critical applications. Public statements by
Microsoft concerning supposed imminent patent infringement actions have
spurred resistance from users Microsoft cannot afford to alienate. But
if Microsoft can gain royalties from commercial customers by assuring
them that \textit{their} copies of free software have patent licenses
through a deal between Microsoft and specific GNU/Linux vendors,
Microsoft would then be able to pressure each user individually, and
each distributor individually, to treat the software as proprietary. If
enough users succumb, it might eventually gain a position to terrify
noncommercial developers into abandoning the software entirely.
Preventing these harms is the goal of the new provisions of section 11.
The fourth paragraph deals with the most acute danger posed by
discrimination among customers, by ensuring that any party who
distributes others' GPL-covered programs, and makes promises of patent
safety limited to some but not all recipients of copies of those
specific programs, automatically extends its promises of patent safety
to cover all recipients of all copies of the covered works. This will
negate part of the harm of the Microsoft/Novell deal, for GPLv3-covered
software.
In addition to the present deal, however, GPLv3 must act to deter
similar future arrangements, and it cannot be assumed that all future
arrangements by Microsoft or other potential patent aggressors will
involve procuring the conveyance of the program by the party that grants
the discriminatory promises of patent safety. Therefore, we need the
fifth paragraph as well, which is aimed at parties that play the Novell
role in a different range of possible deals.
Drafting this paragraph was difficult because it is necessary to
distinguish between pernicious agreements and other kinds of agreements
which do not have an acutely harmful effect, such as patent
contributions, insurances, customary cross-license promises to
customers, promises incident to ordinary asset transfers, and standard
settlement practices. We believe that we have achieved this, but it is
hard to be sure, so we are considering making this paragraph apply only
to agreements signed in the future. If we do that, companies would only
need to structure future agreements in accord with the fifth paragraph,
and would not face problems from past agreements that cannot be changed
now. We are not yet convinced that this is necessary, and we plan to
ask for more comment on the question. This is why the date-based cutoff
is included in brackets.
One drawback of this cutoff date is that it would ``let Novell off''
from part of the response to its deal with Microsoft. However, this may
not be a great drawback, because the fourth paragraph will apply to that
deal. We believe it is sufficient to ensure either the deal's voluntary
modification by Microsoft or its reduction to comparative harmlessness.
Novell expected to gain commercial advantage from its patent deal with
Microsoft; the effects of the fourth paragraph in undoing the harm of
that deal will necessarily be visited upon Novell.
can structure the agreements so that they do not fall under GPLv3~\S11\P7.
\section{GPLv3~\S12: Familiar as GPLv2 \S~7}