GPLv3: The Legal Risks of Overreaching for Third Party Patent Rights

The FSF has now released the Discussion Draft 3 of GPLv3, adding paragraphs four and five to Section 11 for the stated purpose of blocking the recent patent cooperation agreement between Novell and Microsoft and other agreements like it, because they give some Linux users the benefit of a patent covenant not to sue, but not to the extent that the drafters would ideally like.

Those participating in the drafting and consultation process, or that plan to use GPLv3 once it is issued, should give careful consideration to whether such amendments do more harm than good by selectively overreaching for third party patent rights.  There is no issue with those who choose to develop and distribute under the GPL to commit their own copyrights and patent rights in their contributions to the program they are distributing.  But it is quite another for the GPL to seek to reach out and attempt to force third parties to surrender patent rights that they hold based on work and investment unrelated to development of contributions to GPL code.  Particularly when the terms of the GPL are revised selectively to target specific parties, undo their perfectly legal contracts, or forge a broad agreement not to do business with such parties, this calls into question the legitimacy and enforceability of the GPL, and unwittingly may create new liabilities for its drafters and users.  It also is a direct attack on the freedom of developers and companies to work together – seeking to undo or frustrate efforts to build bridges between the two worlds of open source and proprietary software.

ACT GPLv3 Legal Risks