With the release of the most recent discussion draft today,
one thing is immediately clear: this third version of the General Public
License can be simply written “GPL v.” – where “v” stands not for “version” but for “vendetta.”

There’s little doubt that this GPL 3 draft is a
vendetta against the patent non-assertion agreement we saw in the Microsoft and
Novell deal. But it is also aimed at the use of technological protection
measures like digital rights management. Overall, these new
additions will hurt the open source software community by elevating code over
the desires of the marketplace.

Turning the Four
Freedoms into the Ten Commandments

The GPL 3 draft is no longer just about protecting the four
freedoms. Instead, it preaches about what can’t be done with software – thou
shall not use DRM, thou shall not partner with proprietary software companies,
etc. The draft contains provisions that block the use of anticircumvention
technologies and patent non-assertion agreements. It’s the patent provision
that attempts to strike a dagger at the heart of the collaboration between Microsoft
and Novell.

According to the new GPL Vendetta – 

Your permission to convey a covered
work terminates if you are a party to an arrangement under which a third party
grants, to any of the parties who receive the covered work from you, a patent
license (a) in connection with a specific copy of the covered work, or (b)
primarily for and in connection with a specific copy of a product or
compilation that contains the covered work, if the patent license does not
include within the scope of its coverage…the rights that are specifically
granted to recipients of the covered work under this License. 

The new GPL specifically tries to prohibit deals like the
Microsoft and Novell collaborative arrangement. Under GPL Vendetta, a deal like
Microsoft’s legally binding promise not to assert its IP rights against Novell’s
SuSE Linux would prevent Novell from continuing to distribute SuSE – and have
the effect of putting Novell out of business. 

Interestingly, the draft does include a grandfather clause
for the Novell Microsoft deal itself – but even that may not hold up over the
long haul. The original deal can work, but if SuSE were to add a new GPLv3
based feature that wasn’t covered under the original agreement, it could reduce
the original deal to ashes.

GPL 3 Elevates Code
over Consumers and Developers

If this seems draconian – well, it is. Richard Stallman’s
Free Software Foundation is positioned to create a morally absolute position on
“right and wrong” when it comes to software code. They believe that believe
that community is king—or at least, the right kind of “community.” But this new
iteration of the GPL creates a gated community to the detriment of the
community as a whole.

Let’s take Microsoft’s non-assertion agreement, which
legally prevents Microsoft from asserting its patent rights against individual
contributors to OpenSUSE.org whose code is included in the SuSE Linux
Enterprise platform, including SuSE Linux Enterprise Server and SuSE Linux
Enterprise Desktop. In a previous blog post, I
discuss how this arrangement helps Novell’s OpenSUSE.org developers.

Similar deals could be done with other companies besides
Novell. But GPL Vendetta puts the kibosh on non-assertion agreements unless it
is for all GPL code. This blanket immunity is impracticable, and Stallman knows
it. Consumers will lose out in this sort of arrangement.

There’s No Reason to
“Upgrade” to GPL 3

Technology consumers are notorious for their desire to
upgrade to the latest version of a product. When it comes to GPL Vendetta,
software developers may want resist the upgrade urge. The new GPL is more
complicated and harder to administer than the previous version.

The patent non-assertion clause is just one of the controversial
new additions. Another new provision is Section 3, which prohibits the use of
technological protection measures like DRM. Specifically:

When you convey a covered work, you
waive any legal power to forbid circumvention of technical measures to the
extent such circumvention is effected 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
technical measures.

Again, this is another example where GPL Vendetta strays
from open source proponent into anti-intellectual property ideology. Given the
legal cloud that will linger over the patent section, GPL proponents should
just stick with version 2.

Or migrate to another open source license. The FSF doesn’t
have a monopoly on community licenses, and there are plenty of choices for the
open source market.

A Bonfire of the
Vanities?

As Jonathan Zuck predicted in a CNET
op-ed, we’re seeing the “bonfire of the vanities” play out: “Stallman and
the Free Software Foundation have every right to continue their ideological
crusade against proprietary software, but will anyone follow?”

That’s the question – will anyone adopt this licensing model? Because the GPL is supposed to be about free
as in freedom, not V for Vendetta.