New language inserted into the third discussion draft of version 3 of the General Public License for free and open-source software would prohibit a license holder from paying another party to receive a patent license for works the GPL covers.

But a bracketed clause would make this language take effect for licenses issued from today (March 28) forward. As a result, the agreement reached last year between Microsoft and SUSE Enterprise Linux vendor Novell may be "grandfathered in," if this language is left standing.

One new paragraph in the proposed Section 11 on "Patents" states that if a license holder grants someone else a patent license (permission on the part of the rights holder) that extends freedom to use or distribute the covered software, then those rights must be extended to anyone to whom those rights were granted.

Then the paragraph that follows it would prohibit any party from trying to purchase such rights, or otherwise limit them in exchange for cash or consideration. But an uncharacteristically bracketed clause at the end of the paragraph adds, "unless you entered into that arrangement, or that patent license was granted, prior to March 28, 2007."

The draft currently defines "patent license" to mean "a [typical] patent license, a covenant not to bring suit for patent infringement, or any other express agreement or commitment, however denominated, not to enforce a patent."

That term "covenant" was introduced to the general public by Novell and Microsoft, which in their historic deal last November agreed that Microsoft would agree to a covenant holding SuSE Linux users harmless from patent infringement, and Novell would agree to pay Microsoft to settle a dispute over contents of SuSE Linux to which Microsoft claimed rights.

Novell has never explicitly acknowledged such an infringement on the part of SuSE Linux exists, and has denied that payments on its part constituted such acknowledgement, although many continue to refer to these payments as "royalties."

The Free Software Foundation - the principal authors of the GPL - have argued that the rights that were granted to Novell in the distribution of SuSE Enterprise Linux have no dollar value, and cannot be purchased or traded away. But the General Public License has never stated this explicitly, which is why many open source advocates have advised the FSF to change the terms of the license.

The problem, as many patent attorneys have made clear, is that the FSF is most likely incapable of applying new license terms retroactively to license holders - contracts simply don't work that way under the law. It can try to make sure such license arrangements never happen again. But that won't affect license holders whose works are currently bound under the terms of version 2 of the GPL, and contributors to the authorship process may just now be coming to that realization.

As an early commenter wrote, "Is the purpose of this bracketed clause to grandfather the agreement between Novell and Microsoft? If so, I think it's a bad idea."

In its "Rationale" document for draft 3, the FSF writes, "Software patenting is a harmful and unjust policy, and should be abolished; recent experience makes this all the more evident. Since many countries grant patents that can apply to and prohibit software packages, in various guises and to varying degrees, we seek to protect the users of GPL-covered programs from those patents, while at the same time making it feasible for patent holders to contribute to and distribute GPL-covered programs as long as they do not attack the users of those programs."

Later, the Rationale states, "The business, technical, and patent cooperation agreement between Microsoft and Novell announced in November 2006 has significantly affected the development of Draft 3... The basic harm that such an agreement can do is to make the free software subject to it effectively proprietary. This result occurs to the extent that users feel compelled, by the threat of the patent, to get their copies in this way. So far, the Microsoft/Novell deal does not seem to have had this result, or at least not very much: users do not seem to be choosing Novell for this reason. But we cannot take for granted that such threats will always fail to harm the community. We take the threat seriously, and we have decided to act to block such threats, and to reduce their potential to do harm."

For now, some open source software providers continue to hedge their bets. On his personal blog today, MySQL vice president Kaj Arno stated his firm will stick with its December decision to limit its database's license provisions to GPL v2 only, though he states MySQL is actively involved in the v3 drafting process. "Until the new version of GPL is finalized," Arno writes, "we won't be in a position to determine whether GPLv3 is an appropriate license for MySQL products."

Arno said he'd like to be able to use this moniker to describe the final draft, which he expects to see in 60 days' time: "A good balance between FSF's interest to protect software freedom in the name of the end user, and the interests of the industry to develop sustainable business models upon Free Software."