Article by Doug G. Copland, Borden Ladner Gervais LLP 
Open source software is increasingly appearing in more businesses and technologies, including as part of otherwise proprietary devices and software. It is vital for anyone dealing with technology – especially institutions involved in technology transfer – to understand open source software and the license terms that apply to it.
One of the most popular open source software licenses is the General Public License, or GPL, which is released by Free Software Foundation, Inc. (“FSF”) – a non-profit corporation that acts as custodian of the pervasive open source code license. FSF released the first version of the GPL in 1989, and a new version 3 in June 2007. The principal intention of FSF in releasing version 3 was to address issues that had arisen since the release of version 2 of the GPL. Version 3 made its debut after an 18-month public comment and discussion period during which input from participants representing a diverse array of commercial and non-commercial interests from around the world was provided.
One of the issues addressed in version 3 is referred to by FSF as “Tivoization”. A user of software that is subject to the GPL (“GPL’d software”) has a number of rights, including the right to modify the software. “Tivoization” – a term coined by FSF Founder Richard Stallman – refers to the incorporation of GPL’d software into a device in a manner that allows the owner of the device to modify the software, but prevents the modified software from operating on the device. This practice was not prohibited under the previous versions of the GPL. However, under GPL version 3, the manufacturer of a consumer device that includes GPL’d software must provide the user with whatever information is required to modify the software and, after reinstalling the software on the device, to have the device continue to operate as intended.
Another issue relates to Digital Rights Management (“DRM”) laws, which did not exist when GPL version 2 was released. GPL version 3 does not prevent DRM measures from being used to protect media. However, if a media manufacturer uses GPL’d software for the purposes of DRM, GPL version 3 attempts to preserve the rights of a purchaser of that media to exercise their freedoms of use of the GPL’d software, without breach of DRM laws.
Responding to what it deems the “unwise and ill-considered application of patent law to software”, GPL version 3 also includes a set of key changes relating to patent licenses. Foremost among these, the GPL no longer relies on an implied patent license from contributors to GPL’d software. Instead, version 3 states explicitly that anyone who contributes software or a modification to software under the GPL is deemed to have granted a license to use that software or modification under patents held by that person. GPL version 3 also includes provisions intended to prevent discriminatory patent licenses from depriving users of GPL’d software of any of the freedoms granted under the GPL and to ensure that the same rights are granted to all users. This restriction was generated by FSF in response to the 2006 settlement reached between Microsoft and Novell under which Microsoft agreed, in exchange for payments from Novell, not to assert patents against customers of Novell’s SUSE Linux product. Present-day transactions in which a patent holder agrees not to sue another party’s customers for use of GPL’d software will be controlled by this prohibition, although licenses entered into prior to March 28, 2007 are not affected.
GPL version 3 also includes more flexible termination provisions. Under previous GPL versions, a breach of the GPL resulted in automatic termination, with no means of reinstating the license other than to obtain a direct license from the copyright holders. Since there could be many copyright holders for particular GPL’d software, this could be an impractical, or even impossible task. Under version 3, a user who violates the GPL is still subject to automatic termination, but can also benefit from automatic reinstatement if all violations are corrected within prescribed time periods.
GPL version 3 also includes new provisions with respect to compatibility with other open source software licenses, distribution of source materials and other matters. Given the ever increasing prevalence of open source software, all businesses should be aware of the changes to GPL version 3.
About the Author
Doug G. Copland is a partner in the Vancouver office of Borden Ladner Gervais LLP, and a member of the firm’s Intellectual Property and Technology Group. He practices business law including acquisition of computer systems and software, as well as IP law, which includes the creation, protection, exploitation (licensing and franchising) and enforcement of trade-marks, copyrights, patents and trade secrets.
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