Will Someone Be Determined To Fork The GPL Over Patent Issues?
In my earlier posting I had provided a link to the second Draft of the GPLv3. The GPL governs thousands of FLOSS projects, and many programmers have agreed to license their code under "GPLv2 or later". With other words: Albeit the GPLv2 does not enforce any automatic transition to GPLv3, as a matter of fact many FLOSS projects will follow without need for any formal adoption. This means that the Free Software Foundation (FSF) as the maintainer of the GPL - and Mr. Richard Stallman within this organisation - will exert a huge influence on the future FLOSS landscape.
The FSF appears to have big political ambitions when using the political lever conveyed by the pending GPL reform for, inter alia, fighting against patents on computer-implemented inventions or what they call "software patents".
In view of the second Draft of the GPLv3, others beg to differ. It is, for example, well known that Mr. Linus Torvalds, founder of what today is known as the Linux Kernel, does not like the present Drafts of GPLv3. And, the Linux Kernel sources do not show any license indicator comprising the ominous "or later" clause. As early as in February 2006, Mr. James DeLong wrote on ipcentral.info:
"Linus Torvalds explains why he is inclined to stick with version 2 of the GPL rather than adopt the draft of version 3 that has been proposed:
My initial reason for my original license (which was also "you must make changes available under the same license") was not crusading, but simple reciprocity. I give out source code - you can use it if you reciprocate.
In other words, to me, the GPL "give back source" is an issue of fairness. I don't ask for anything more than I give. I ask for source code and the ability to incorporate your changes back into _my_ use, but I don't want to limit _your_ use in any way.
So in my worldview - not as a crusader - the GPLv2 is _fair_. It asks others to give back exactly what I myself offer: the source code to play with. I don't ask for control over their other projects (be they hardware or software), and I don't ask for control over copyrights (in the kernel, people are _encouraged_ to keep their copyrights, rather than signing them over to me).
I only ask for exact reciprocity of what I give: the license for me to freely use the changes to source code that I initiated.
The GPLv3 fundamentally changes that balance, in my opinion. It asks for more than it gives. It no longer asks for just source back, it asks for _control_ over whatever system you used the source in.
This is a good assessment - v3 is not a license within an existing system of intellectual property but an attempt to create a new system. In weird way, it is like legislation, and it comes complete with legislative history in the form of explanations, FAQs, and other devices associated with laws rather than contracts."
I think in this posting Mr. DeLong has got the essential gist of the Draft GPLv3 - a political "control device". While I do not share Mr. DeLong's general scepticalness towards FLOSS, I think with regard to the assessment of GPLv3 as a political "control device" he is absolutely right.
The success of Linux and other open source projects has depended, depends and will also depend in future heavily on the support and investment of major IT companies. It is simply not true that FLOSS today mainly is a matter of individual programmers. A lot of money has been put into FLOSS by companies, big and small. There should be no surprise that Mr, Stallman and his FSF will meet fierce opposition by numerous companies engaged in the business around FLOSS. ZDnet reports:
"[...] A proposed patent provision in a revamped General Public License isn't sitting well at Hewlett-Packard, raising concerns that two competing versions of the licence could survive. [...]
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.
HP isn't the only company whose views are being taken into account, though, Moglen said. [...]"
With other words, Mr. Stallman might perhaps well be prepared to deliberately drive not only Mr. Torwalds but also big Linux supporting companies like HP into a factual fork of the entire GPL. And, of course, the anti-patent campaigners do see their chance to fuel this conflict with additional propaganda. Mr. Florian Müller writes on his Blog:
"[...] I actually think it's good if companies like HP, and even more so IBM, are forced to come clean. So far there is a lot of ambiguity, or I should say self-contradiction, in the strategies of those organizations. They claim to support the idea of Free and Open Source Software (FOSS) whenever it's useful to them from a sales, marketing or public relations perspective, but it's still infinitely more important to them to have tens of thousands of software patents. They support initiatives such as the OSDL Patent Commons and make useless patent pledges that don't help open source in any way (in fact, those initiatives are even counterproductive).
The GPLv3, if the FSF stands firm on patents, could become a litmus test: those who are sincere and really want Free Software and a competitive software market will support it sooner or later, and those who have a hidden agenda won't. [...]"
For more information on manichaeic views, see my earlier postings here and there.
In the effect, from day to day there there are more reasons to call Mr. Stallman's strategy a scorched earth policy.
[UPDATE 2006-08-03] Those readers of this Blog having a sufficient command of the German language might wish to read also here and there.
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Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of:
earlier posting I had provided a 
link to the second Draft of the GPLv3. The GPL governs thousands of FLOSS projects, and many programmers have agreed to license their code under "GPLv2 or later". With other words: Albeit the GPLv2 does not enforce any automatic transition to GPLv3, as a matter of fact many FLOSS projects will follow without need for any formal adoption. This means that the Free Software Foundation (FSF) as the maintainer of the GPL - and Mr. Richard Stallman within this organisation - will exert a huge influence on the future FLOSS landscape. 
