... the actions anyone distributing GPL software can take over patent infringement. "If you convey a covered work, you...covenant to all recipients, including recipients of works based on the covered work, not to assert any of your essential patent claims in the covered work," the draft license reads.
Essentially, HP believes that language in the new draft could permanently defang a company's ability to sue for patent infringement in a particular situation. Imagine Company A holds a certain patent. If technology covered by that patent is included in GPL-governed software distributed by Company A, then Company A no longer has the right to sue anyone over infringement of that patent. That applies even if Company A itself didn't write or add that technology, or if another entity — Company B — inserted it into the software.
"Suppose somebody added into the Linux kernel some feature that might go into a Linux distribution, (a feature) we had intended to retain as a differentiator and that we were not expecting was going to become open source," Peterson said. "Our mere redistribution of that would mean we could no longer enforce that patent."
In contrast, with GPLv2 software, a company that stops distributing the affected software is then free to sue for patent infringement, Peterson said.
HP would be happy with a few changes to Section 11, Peterson said. Without them, HP would prefer GPLv2, he said.
"We were hoping some more improvements would be made in the second draft," said Christine Martino, vice president of HP's Open Source and Linux Organization.
Although HP wants to keep its patent litigation options open, Peterson added that he wouldn't expect to sue any open source organisations for such infringement: "Asserting rights against the open source community I would think is a very unavailing activity," he said.
Listening to other voices
HP isn't the only company whose views are being taken into account, though, Moglen said.
"The enterprises with very substantial patent portfolios participating in the GPLv3 process have divergent views about optimal patent licensing strategy," he said. "Accordingly, they have equally disparate views about how GPLv3 should treat patent claims held by those who contribute to, as well as those who distribute, GPL code."
Other prominent voices have lodged objections.
Torvalds has been sharply critical about the digital rights management provision of the GPLv3 draft, arguing that it reaches inappropriately into the domain of hardware. He also has criticised the foundation's philosophy.
Unless things changes dramatically, the Linux kernel will be unaffected by changes in GPLv3. Years ago, Torvalds opted to govern the software only under GPLv2, expressly omitting the "or later version" wording the foundation recommends.
Even if the GPL moves to version 3 without Torvalds, though, he remains an influential programmer.
"If the kernel is under GPLv2, (it's) awkward," Peterson said. "It creates the question whether other projects would look to that for thought leadership."
Despite its concerns, though, HP is pleased with the overall GPLv3 process — especially given the tremendous breadth of interests involved, Martino said. "The FSF has done an excellent job creating a real open process across a huge community."
HP's suggested changes
Hewlett-Packard said it would be content with the patent portion of General Public License version 3 if a few changes, in capital letters below, were added to Section 11:
"You receive the Program with a covenant from each author and THE conveyor FROM WHOM YOU RECEIVED the Program, and of any material, conveyed under this Licence, on which the Program is based, that the covenanting party will not assert (or cause others to assert) any of the party's essential patent claims in the material that the party conveyed, against you, arising from your exercise of rights under this Licence. If you convey a covered work, you similarly covenant to all recipients TO WHOM YOU CONVEY THE WORK, including recipients FROM YOU of works based on the covered work, not to assert any of your essential patent claims in the covered work."
