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Striking Back: Patent Retaliation Clauses in Open Source Software Licenses

By Michael R. Graif

Open source software is distributed under more than 60 recognized licenses (see www.opensource.org). One of the most popular open source licenses, which is used to distribute open source programs such as Linux, MySQL and Samba, is the GNU General Public License, generally considered to be the most restrictive of all open source licenses. The GPL, as it is commonly known, requires that an open source program distributed under the license be redistributed together with all modifications free of charge and with the accompanying source code. That restriction ensures that the public will be able to benefit from subsequent improvements to open source programs and prevents the development of improved “proprietary” closed source versions of programs licensed under the GPL.

As a license, however, the current GPL goes only so far in protecting the freedom to use and modify open source programs. Software patents, for example, can be wielded by licensees to assert proprietary rights to open source software without violating the current GPL, and therefore conflict with the aim of the GPL to preserve the freedom of all to use and modify open source programs.

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