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Red Hat Makes History With Patent Settlement - Compatible with GPLv3

By Pamela Jones et al.

You've probably been wondering why I've been quiet, when there is news about a patent settlement between Red Hat and Firestar and DataTern in the JBoss litigation. It's because I wanted to be positive I was correct that this is the first known settlement involving patents that is harmonious with GPLv3. It is.

It's also harmonious with GPLv2, of course, but this is history in the making, friends. They settled a lawsuit brought against them in a way that licenses patents without violating the GPL. I'll show you how, but first, so you know I'm not just dreaming, here's the answer I got from Richard Fontana, Open Source Licensing and Patent Counsel, Red Hat, to my question about whether this is the first known GPLv3 patent agreement that works:

Most patent settlements and similar agreements are confidential, but to my knowledge this is the first patent settlement that satisfies the requirements of GPL version 3. Indeed, it really goes further than GPLv3 in the degree to which upstream and downstream parties receive safety from the patents at issue here. (And this is not a case of trying to find a loophole in the GPL, but rather a desire on our part to reach an agreement that provided broad patent protection for developers, distributors and users, while complying fully with the conditions of the licenses of the software we and our community distribute.)

You know what this means? It means that those who claim the GPL isolates itself from standards bodies' IP pledges are wrong. It *is* possible to come up with language that satisfies the GPL and still acknowledges patents, and this is the proof. That means Microsoft could do it for OOXML if it wanted to. So who is isolating whom? Thank you, Red Hat, for innovating again to protect the FOSS community.

Here's what Eben Moglen says about the agreement:

"Red Hat's settlement of outstanding patent litigation on terms that provide additional protection to other members of the community upstream and downstream from Red Hat is a positive contribution to the resources for community patent defense. We would hope to see more settlements of this kind--in which parties secure more than their own particular legal advantage in relation to the third-party patent risk of the whole FOSS community--when commercial redistributors of FOSS choose to settle patent litigation. SFLC welcomes Red Hat's efforts on the community's behalf."

This is what Novell could have done, I would suggest, and when their 5-year indentured labor contract is over, so to speak, I hope they will. The main point is this: Microsoft, Ecma, ISO, are you paying attention? It can be done. It's been done. Now, the ball is in your court. There is no legal reason why the GPL has to be excluded from patent agreements.

Full post as published by Groklaw on June 11, 2008 (boomark / email).