• Open Source Software Now Comes with Patent Free Ride; Digital Rights Management also Affected
  • December 3, 2007 | Author: Donald L. Bartels
  • Law Firm: Nixon Peabody LLP - San Francisco Office
  • Background

    Open source software is software that is distributed with the source code and without prohibitions on either the creation of modifications to that source code or further distribution of the software. Those contributing modifications to software licensed as open source agree to distribute the modifications in accordance with the appropriate open source license, most commonly the GPL. Therefore, the GPL has a “viral” effect. Previous versions of GPL licenses did not expressly grant a patent license to users of open source software.

    The new GPL version 3.0

    As indicated above, under the terms of GPL Version 3.0, “[each] contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor’s essential patent claims, to make, use, sell, offer for sale, import[,] and otherwise run, modify[,] and propagate the contents of its contributor version” (see Paragraph 11 of the GPL). For users, this means that they will be able to work with GPLv3-covered software without risk of a contributor suing them for patent infringement for that specific use. For software developers and distributors, this means that the risk of the viral effect of open source software is increased, in that they can inadvertently grant a license to some of their patents when incorporating open source software into their code.

    Paragraph 11 of GPL Version 3.0 defines Essential Patent Claims as “all patent claims owned or controlled by the contributor, whether already acquired or hereafter acquired, that would be infringed by some manner, permitted by this License, of making, using, or selling its contributor version, but do not include claims that would be infringed only as a consequence of further modification of the contributor version. For purposes of this definition, ‘control’ includes the right to grant patent sublicenses in a manner consistent with the requirements of this License.”

    The new Affero GPL Version 3

    This Affero GPL is specifically written to cover network server software. Regarding anti-circumvention laws, paragraph 3 of the Affero GPL now reads: “When you convey a covered work, you waive any legal power to forbid circumvention of technological measures to the extent such circumvention is [a]ffected by exercising rights under this License with respect to the covered work, and you disclaim any intention to limit operation or modification of the work as a means of enforcing, against the work’s users, your or third parties’ legal rights to forbid circumvention of technological measures.” Paragraph 3 does not mean that digital rights management is prohibited. According to the FSF, you can use code released under the Affero GPL to develop any kind of DRM technology you like. However, paragraph 3 says that the system will not count as an effective technological “protection” measure, which means that, if someone breaks a DRM code, s/he will be free to distribute his or her software, too, unhindered by the DMCA and similar laws. In other words, according to the FSF, the GNU GPL does not restrict what people do with their software; it just stops them from restricting others.