Few topics of common interest to tech lawyers and technologists have generated as much passionate discussion over the past year as the GPLv3.  I expressed some of my initial thoughts about what turned out to be the final version of the new license in an interview with Jack Loftus of SearchEnterpriseLinux.com last April.  Some parts of the draft seemed to me to be unclear, and I was concerned about that and knew others were, too.  It’s not that I think the GPL as a whole is problematic for the purposes it’s intended to serve, it’s just that quite a lot of consequential stuff was added to the final draft of v3 after Microsoft and Novell announced their agreement on Windows-Linux interoperability in November 2006.  I was concerned that some of these late-stage changes may have been overly reactive and may not have been as broadly vetted within the FOSS community as changes in earlier drafts.  Those changes relate to patent rights in and beyond the context of similar deals, and my concerns about lack of clarity are focused on these patent related provisions.

Die hard skeptics think this view naive, of course, but I continue to see the Microsoft-Novell deal as a genuine acknowledgement that Linux (and the GPL) is here to stay, that a lot of enterprise users want it that way, and that those enterprises want their vendors to cooperate, even as they compete.  I felt very strongly back then that the Microsoft-Novell deal was a positive move by both companies — one that was good for IT users on numerous levels, the primary one simply being enhanced interop between Linux and Windows.  (I was not alone here either.)  I still see things that way, even as Microsoft makes unilateral moves toward increased opennes of its APIs and protocols nearly 18 months after the deal.  In retrospect, I also see how the strength of my initial reactions to the late-stage changes to v3 negatively affected the tone of some of my comments.  I regret that, because I know a lot of smart and dedicated people worked very hard on v3.  I still have strong feelings about the significance of the Microsoft-Novell deal and concerns about ambiguities I perceive in some of the late-stage changes to v3, but I was clearly a little too worked up at the time of my interview.

The GPL is an incredibly important document.  For over 20 years, the GPL has helped catalyze and nurture a large number of hugely valuable open source projects.  Linux, the MySQL database and other major projects are maintained under the GPL, as are scores of smaller projects.  Without a doubt, the GPL has done more than any other license to make open source software the major force it is today.

Linux and other projects governed by the GPL are supported and distributed by parties who have diverse perspectives on software patents.  Some, like IBM and Novell, hold patents for a variety of reasons, including potential defensive use to protect open source projects.  Any changes to the GPL (or any other widely-used FOSS license) related to patent rights are bound to be carefully considered by participants in the FOSS ecosystem, and perspectives on them will vary.

Here’s one example of a seeming ambiguity that concerned me last April, and which still concerns me today:  The GPLv3 contains a patent license that each contributor to a project grants to all those who use, modify, or distribute its contributions (Section 11, Paragraph 3) and a broad covenant pursuant to which each party to the license promises not to sue other parties under any of its patents (Section 10, Paragraph 3).  The patent license covers only “essential patent claims,” which the drafters defined as “claims that would be infringed only as a consequence of further modification” of the version of the program that contains the contributor’s code.  While this language seems intended to ensure that contributors relinquish a narrowed set of patent rights while retaining others that could be infringed by a subsequent contributor’s modifications to the program, the covenant not to sue in the final version of the GPLv3 (unlike the covenant in the draft that preceded the Microsoft-Novell deal) contains no such limiting language.

I wonder whether these provisions could be interpreted to mean that contributors to, as well as mere distributors of, GPLv3 covered programs agree never to sue any party to which the program is conveyed, even if others further modify or use it in ways the contributor or distributor did not envision, and which violate patent rights the contributor or distributor thought it had reserved for itself.  In v3, “program” simply means “any copyrightable work” and “version” is undefined.  If you’ve just released your zippy engine under v3, and if someone else uses parts of it to create something like your proprietary zappy parser, it seems reasonable to conclude — though probably still subject to debate — that you have not granted the other party a license to your patents covering your proprietary zappy parser (under Section 11, Paragraph 3).  But, is the other party’s modified program still “the Program or any portion of it” for purposes of the covenant not to sue (in Section 10, Paragraph 3), which applies to all of your patents, not just your “essential patent claims” related to the zippy engine you released under v3?  I do wonder whether the final version of the covenant not to sue unintentionally takes away what the patent license appears to reserve to contributors.

In a license like the GPL, it makes sense to expect contributors and distributors to refrain from asserting their patent rights against folks downstream who use their code in ways one reasonably expects it to be used.  (In fact, that’s typically how licenses covering closed source, proprietary code work.)  Whether it makes sense to go beyond that is a question on which reasonable minds may differ.  The particular example of seemingly unclear language in the GPLv3 I’ve highlighted in this post is curious, because the “essential patent claims” aspect of the patent license appears to be evidence of an intention not to disrupt entirely the rights of those in the FOSS community who hold patents.  The Free Software Foundation, which is the guardian of the GPL, is not a fan of software patents, but it seems to have perceived a risk that some who support the GPL, and who also hold patents, might not embrace v3 if they thought the patent license provisions were too broad.

Whatever one’s perspective on patents in general, and on software patents in particular, they’re likely to be with us for a long time to come.  It’s worth remembering that, in a very real sense, the GPL and other FOSS licenses are grounded in the intellectual property rights systems of the US and other countries.  By “opting in” to the GPLv3, each contributor freely and partially relinquishes the main freedom he or she otherwise would have under copyright and patent law: the freedom to limit what others do with one’s original work.  In a world in which property rights, “intellectual” and otherwise, were not acknowledged, the FOSS movement might not exist.

For both good and ill, our IP rights system fosters and supports broad domains of creativity in the arts and sciences and in the models by which creative works — whether code or Coda — are made available for others’ use and enjoyment.  In the tech realm, different products and distribution models sometimes conflict with and constrain one another, but often these very conflicts catalyze the enlagement of existing domains of creativity or open new ones.  IMHO, that’s what’s happening today at the intersection of proprietary software and FOSS.  The various FOSS approaches to software licensing definitely are pulling proprietary models in their direction at the moment, but it remains to be seen precisely what sort of hybrid models and equilibrium states eventually will emerge.  To my thinking, human talents and motivations are just too varied to believe that one size will fit all for all time — in software development and licensing or anything else.  That’s why we see diverse approaches to writing and distributing code.  It’s also why we see omnivorous IT departments and end users, and why those consumers demand that software producers learn to play nicely with one another.  Years later, perhaps some critics of the Microsoft-Novell deal will see it as an important step in a progression toward a new model or stable state.

My concern about ambiguity in the GPLv3 stems from fear that a “v2-v3″ divide, if it were to emerge, could hurt the IT ecosystem, including FOSS.  FOSS is having incredibly transformative effects within the tech industry, and I’ve been fortunate to have had the opportunity to help some folks do very innovative things in the FOSS arena — including helping SiteScape make the shift from a proprietary to an open source model, launch the ICEcore project (under the CPAL), and, most recently, combine with Novell.  Eight months after the official release of the GPLv3, I don’t think we can say there’s significant evidence that my own and others’ concerns about a potential v2-v3 divide are materializing — and that’s a good thing.  Novell has said it will distribute v3 extensions to Linux (which, at least for now, remains v2).  IBM officially embraces v3 (though the company generally favors other licenses over the GPL, and software chief Steve Mills has at times been critical of v3).  While many projects remain under v2 — like WordPress, in which my blog is authored — I don’t think one can say anything like “GPL chaos” has yet resulted from differences of opinion and preference regarding v2 and v3.  The possibility for division concerned me last year, and it still concerns me somewhat today, but I don’t think we see the parade of horribles some have feared coming around the bend.  To the extent concerns about ambiguity are widely shared and persist, perhaps a GPLv3.1 could be the quick and easy fix.

• Radiohead, Nine Inch Nails, Oasis and others break away from major labels last fall to bring their music direct to fans, and Madonna helps concert promoter Live Nation transform itself into a record company as she ditches Warner Music
• Amazon adds Sony BMG’s catalog to its online music store, which makes it the only source for play-on-any-device, DRM-free files from all four major labels (and which clearly signals that the majors want to free themselves and consumers from Apple’s captivity)
• BitTorrent partners with Netgear and D-Link to optimize their routers and other network appliances for use with BitTorrent.  We’ll eventually see BitTorrent code and code from similar systems resident on nodes throughout the Net (think BitTorrent on Cisco).  As these intelligent and bandwidth efficient systems evolve beyond PCs to encompass routers and other network hardware to which humans don’t directly relate, we’ll have the infrastructure for fast, Internet-based distribution of songs, video and other content to and among TVs, stereos and other resources that most of us don’t think of as being an intergral part of the Net today.  The Netgear and D-Link partnerships follow on the heels of others BitTorrent has struck with major movie studios and record labels

The pace of shifts in business models in response to new technologies finally seems to be accelerating.  The labels and studios are beginning to transition from “circle the wagons” mode to “embrace and extend” mode — more out of necessity than foresight, to be sure, but it’s happening.  What remains to be seen is who will be standing when the dust settles.

(Yes, this post is evidence of a New Year’s resolution.  When this busy lawyer and relatively new parent, who likes to get to the gym once in a while, decided to start blogging, friends who’d gone before me said, “Good luck.”  My 2007 moved at warp speed, and this blog was one of its casualties.  My 2008 promises to be (good) crazy, too, but a few skipped workouts seems like a small price to pay for the pleasure of online self-expression.)

Content Reuse.  Napster started it, I suppose, but “sharing” and “recycling” content on the Web may be more the norm, than the exception, today.  Our companies are business partners.  I copy the logo from your website and post it on mine.  Or, I’m Joe college student.  I copy a photo from your blog and post it on my MySpace page.  Copyright violations?  It depends upon whether there’s some agreement that permits me to do these things, whether that’s the terms of use for your site or a written contract.  Most commercial website terms of use prohibit these activities; most blogs and personal sites don’t have terms of use.  So, most of the time this sort of activity does violate the content owner’s copyright, whether or not they care.

These are the easy and less interesting cases.  The interesting cases arise in connection with more powerful and commercially significant technologies like mashups and search engines.  Mashups aggregate content and services from multiple sites to create a site/service that seems unified from the user’s perspective.  Most mashups out there now are hobby sites.  (24 fans should check out JackTracker, which isn’t fully operational yet, but will be soon.)  That will change, however, just as it’s begun to change with blogs.  As some mashers begin to make real money from ads, some content providers are likely to want a cut.  Mash-ups are just one example of the type of site or service that aggregates content from multiple sources.  At present, there’s no effective (i.e. automated) way to manage rights clearance and payment processing for Web content.  (Creative Commons and Licensa are examples of systems headed in that direction, but nothing in this space has yet achieved Holy Grail status, IMHO.)  Similar, and even more interesting, issues arise with search engines.  Is Google a mash-up that’s making use of others’ content without permission and payment?  That’s essentially what cases like Perfect 10 v. Google are about.

Something like order eventually will emerge out of the chaos.  The order that emerges will probably be a combination of a well developed body of case law dealing with the propriety of common linking and framing practices plus automated solutions that handle rights clearance and payment processing for those practices which the courts say are outside the bounds of fair use.  For the time being, however, we lack a scalable technical and legal infrastructure for a Web that promotes legitimate, viral reuse of content.  And this, of course, is the Web we’re all waiting for.

I’m sorry to do this to you, but there’s a game going around. If you get tagged - and with this message, I tag thee - you are supposed to post to your blog five things most people don’t know about you, and then tag five more people. You can always just ignore it.

One can’t really ignore a game of blog tag, of course, so here goes:

• I once shot a rattlesnake with a pistol and made a hat band out of it.
• Between college and law school I was in an improv comedy group called “Late for Surgery.”
• I’m colorblind.  (If you saw how I dress, I suppose you would know that.)
• I like all things Bauhaus.
• I studied Zen archery for four years with the Imperial bow maker of Japan.

Strange, but true.

This case offers lessons both small and large:

• One small lesson is that the statutory formalities for obtaining copyright protection and enforcing one’s copyright are particularly important for some types of works.  A copyright interest arises automatically in a protectable work, whether or not one includes a copyright notice.  To sue for infringement in the U.S., however, one ordinarily must register the work with the Copyright Office before filing suit.  For many types of copyright material, like software, that’s all that’s required.  Many software companies include a copyright notice in their programs but don’t bother registering their copyright interest in them, in part because most significant programs also are protected by patents (which generate the big money in infringement lawsuits), and in part because they typically can satisfy formalities by registering the program shortly before filing a copyright infringement suit.  For live audiovisual material like the footage of motocross events at issue in Live Nation Motor Sports, however, you can sue right away if you put people on notice of your copyright interest in the material at least 48 hours before, and register your copyright in the material within three months after, its first broadcast.  Live Motor Sports satisfied these formalities with respect to most of its webcasts, but my guess is that the vast majority of companies and people who want to protect the audiovisual material they release on the web don’t.  Traditional radio and TV broadcasters have long been accustomed to satisfying these requirements, but most folks contributing content on the Wild Wild Web (and who would be inclined to care) probably aren’t even aware of them.
• A bigger lesson (or observation) is that law and order is fast coming to the Wild Wild Web, and this case — from Texas, nonetheless — is a case in point.  The number of cases addressing a range of linking and framing practices on the web, such as Perfect 10’s pending suit against Google, is multiplying.  These cases are incrementally defining the laws of trespass online.  These laws of trespass will, in turn, regulate traffic patterns on the web.  In a world of mash-ups, proliferating user created content, and ever more powerful forms of text based and non-text based search, we’re in ever greater need of the sort of automated licensing/permissioning solutions about which Denise blogged a few weeks ago.  Lawyers negotiating paper licenses at $500 per hour?  That just doesn’t scale.

ConWest, which sells sex toys, holds 12 copyright registrations on the designs for rubber ”sculptures” of a particular male body part.  Playtime, a former licensee of the designs, continued to use them to manufacture competitive products after ConWest terminated its license, and ConWest sued.

Playtime argued that the objects — rubber reproductions of actual body parts – are so-called “useful articles” not entitled to copyright protection.  Aesthetic aspects of a useful article are entitled to protection under the Copyright Act, but only if they are conceptually separable from utilitarian aspects of the design.  Playtime asserted that there were no aesthetic aspects of the designs that could be separated conceptually from the purposes for which the “sculptures” were used.

You’ve got to love ConWest’s response to this challenge.  It argued that these particular designs are (in the court’s words) “tributes to certain models, and that collectors purchase them for display.”  The “sculptures” (in ConWest’s words) “are intended to stimulate in the mind of the beholder an appreciation of the inherent beauty and power of male sexuality.”   They ”are not sold solely for utilitarian purposes.  ConWest has priced these erotic fantasy sculptures well above the range for purely utilitarian ’sex toys.’”

The court didn’t buy ConWest’s argument, which I suppose just goes to show you that creativity in these matters depends not on what you’ve got, but — you guessed it — on what you do with it.  Then again, who knows what the outcome would have been had ConWest cast each of the sculptures in a multi-colored swirl of rubber?

And, you thought IP law was boring.