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\section*{Opinion on Patent Retaliation}

We have rewritten the patent retaliation clause of section 2 with
clearer and more carefully circumscribed wording.  We stand by this
clause, for the sake of defending the entire free software community.

Concerns expressed in the public comments on the patent retaliation
clause in section 2 arose largely from interpretations that we had not
intended.  In Draft 1 the clause referred to ``permission to privately
modify and run the Program.''  Many readers seem to have assumed from
this wording that the clause terminated the right to run the
unmodified Program (the Program as received from the upstream licensor
or distributor).  In Draft 2 we have clarified that what is terminated
is the right to make privately modified versions of the Program.  The
right to run the unmodified Program is a core freedom that is not
limited in any way by the existing GPL, and GPLv3 does not alter this.

Our revised wording also explains more clearly that a licensee's
patent infringement suit will activate the clause only if certain
specific circumstances are present.  First, the suit must allege
infringement of one of the licensee's essential patent claims (as now
defined in section 0) in one of the licensee's privately modified
versions of the Program.  Second, the alleged infringing activity must
include making, using, or conveying a work based on the Program in
compliance with GPLv3.  

It may be helpful to explain again why we included this provision.
Many in the free software community have focused attention on those
who run modified versions of free software designed for public use on
network servers without sharing their improvements with the community.
This itself is acceptable, in our view.  In GPLv3 we have chosen not
to require release of the source code of these modified versions,
instead allowing certain such requirements to be introduced as
additional terms under section 7.

The analysis changes when that server operator sues others for patent
infringement to prevent them from, or punish them for, using and
sharing their own improved versions of the same GPL-covered program.
Because the patent aggressor and the sued party are not in a
distribution relationship, sections 10 and 11 of GPLv3 offer no
protection to the victim.  We believe that our license ought to take
action against this form of aggression.  We also believe that this
form of aggression is actually susceptible to deterrence.  The
commercial viability of the patent aggressor's modified version
depends on the ability to maintain it and make further modifications.
Our patent retaliation provision therefore targets this aggression by
terminating permission to modify.  Our revised draft also makes clear
that the aggressor cannot avoid the effects of retaliation by
contracting development of modified versions to a third party.

Some have argued that our patent retaliation clause will be cited,
with distortion and misrepresentation, as a basis for ``fear,
uncertainty, and doubt.''  Perhaps that is so, but we must not create
real flaws to avoid imaginary ones. 

Having revised the patent retaliation clause for clarity and having
explained our rationale for it, we invite the public and all those
involved in our discussion process to propose any further
modifications to tailor the provision as closely as possible to its

by johns last modified 2006-08-02 17:19

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