This article is reprinted with permission from the September 2006 issue of TEQ magazine.

In Parts 1 and 2 of these articles (see June/July and August 2006 TEQ), we discussed the overall process by which the Free software Foundation (FSF) (along with the Software Freedom Law Center, and Free Software Foundation Europe), has made 2006 the year of the GNU Public License v3 (GPLv3). As this article goes to press, the second draft of the GPLv3 has just been released, thus, for the next (and final) Part 4 of this article, we will review that second draft and discuss which of our proposed overall changes discussed below were or were not incorporated into the second draft and what areas of improvement still exist for the third draft of the GPLv3 (scheduled to be released sometime in October 2006).

To add our voices to the fray as to the first GPLv3 draft, we want to discuss two specific issues we have in current draft: (1) stringent provisions addressing digital rights or restrictions management (DRM); and (2) the lack of clarity in the scope of the granted license to “use” the program.

First, Section 3 of the first draft addresses DRM, which FSF has expressly stated as fundamentally incompatible with the purpose of the GPL. The section states in pertinent part: “This License intrinsically disfavors technical attempts to restrict users’ freedom to copy, modify,  and share copyrighted works. Each of its provisions shall be interpreted in light of this specific declaration of the licensor’s intent…. [n]o covered work constitutes part of an effective technological protection measure: that is to say, distribution of a covered work as part of a system to generate or access certain data constitutes general permission at least for development, distribution and use, under this License, of other software capable of accessing the same data.”

We believe that there is a rational argument that DRM is not inherently evil (or even unreasonable), that it does not need to be incompatible with the GPLv3, and that it can serve a quite legitimate purpose to create or implement security for software, including the use of digital signatures, private keys and cryptography.

Question: Does the breadth of the current DRM restrictions in the draft GPLv3 prevent the use of the GPLv3 on a media player program intended to run protected media files legitimately purchased by the user of the program?

Answer: As written, it would appear so, and thus the GPLv3’s extreme view of DRM could be a double disservice. It prevents use of possibly legitimate (or user-accepted) DRM, and it also therefore prevents a subset of software authors from using the GPLv3 (surely not a directly intended goal of the FSF).

Second, while we believe that the GPLv3 has made great strides from the GPLv2 in making the “use” rights of the user under the GPL explicit, we believe that this concept would benefit from even more clarity. In particular, we think that the GPLv3 should go beyond the ambiguous treatment of the “organizations (including companies)” concept in the annotated GPLv2 and instead have an explicit and broad license grant with respect to entire entities instead of individuals. For example, if the license grant explicitly ran to the GPLv3 licensee and its affiliates (further defined as all entities controlling, controlled by or under common control with the licensee), and all the usage rights flowed through to their respective employees, independent contractors, agents and other third parties utilizing the GPLv3 licensed program on behalf of the licensee or its affiliates, then the “scope” of the license would be very similar to that of an enterprise license for commercial off-the-shelf software. This clarification would also give new meaning to the existing clarification in GPLv3 about propagation (from Section 0. Definitions): Under our proposed enterprise license grant, the use and “private” modifications by anyone in the enterprise would not be a separate distribution/propagation. Of course, we would also like to see further definition and specificity from the FSF as to what does and does not constitute a “private” modification.

The above comments are meant to be illustrative as there are clearly other areas of the draft which present issues, and which may or may not be resolved in the next iteration. Our final comment is that the collaborative process from which the many parties affected by the GPL can offer meaningful input is clearly a sincere and constructive part of this process, and the FSF should be commended for that, regardless of which side of the GPL debate you find yourself. The FSF has outlined that process by noting that each issue identified in the course of public participation from draft to draft will be resolved in one of four ways: by modification of the license draft, by alteration of descriptive material, by advice concerning the use of the license or a determination that the issue does not require any change. The FSF has also made a commitment that all issues unresolved at the end of each drafting stage will be carried over for discussion and resolution during the next discussion stage. That said, it is important to recognize that the FSF is the ultimate author and decision maker as to the final draft, such that all issues not resolved before the issuance of the last discussion draft (projected to be no later than January 15, 2007) will be finally determined by the FSF.

Regardless of what changes are or are not accepted into future GPL drafts, it is certain that the GPLv3 will continue to have a tremendous effect on the ongoing debate over open source software. You may agree or disagree with the suggestions above; you may even strongly disagree with the fundamental principles of the FSF; nevertheless, we encourage you to take advantage of this year of change, and to submit any comments that you may have (for or against) through the GPLv3 website (http://www.gplv3.fsf.org/).

We will conclude this series of articles with a discussion of the changes found in GPLv3 draft two, both as they relate to our suggestions above and as they attempt to address the myriad other comments the FSF has received.