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What does "the Program" mean in GPLv3?

Summary

In version 3 of the GNU General Public License (GPLv3), the term "the Program" means one particular work that is licensed under GPLv3 and is received by a particular licensee from an upstream licensor or distributor. The Program is the particular work of software that you received in a given instance of GPLv3 licensing, as you received it.

"The Program" cannot mean "all the works ever licensed under GPLv3"; that interpretation makes no sense, because "the Program" is singular: those many different programs do not constitute one program.

In particular, this applies to the clause in section 10, paragraph 3 of GPLv3 which states

[Y]ou may not initiate litigation (including a cross-claim or counterclaim in a lawsuit) alleging that any patent claim is infringed by making, using, selling, offering for sale, or importing the Program or any portion of it.

This is a condition that limits the ability of a GPLv3 licensee to bring a lawsuit accusing the particular GPLv3-covered software received by the licensee of patent infringement. It does not speak to the situation in which a party who is a licensee of GPLv3-covered program A, but not of unrelated GPLv3-covered program B, initiates litigation accusing program B of patent infringement. If the party is a licensee of both A and B, that party would potentially lose rights to B, but not to A.

Since software patents pose an unjust threat to all software developers, all software distributors, and all software users, we would abolish them if we could. Indeed, we campaign to do so. But we think it would have been self-defeating to make the license conditions for any one GPL-covered program go so far as to require a promise to never attack any GPL-covered program.

Further analysis

GPLv3 defines "the Program" as follows:

"The Program" refers to any copyrightable work licensed under this License.

Some have contended that this definition can be read to mean all GPLv3-licensed works, rather than the one particular GPLv3-licensed work received by a licensee in a given licensing context. These readers have expressed particular concern about the consequences of such an interpretation for the new patent provisions of GPLv3, especially the patent termination condition found in the third paragraph 10 and the express patent license grant made by upstream contributors under the third paragraph of section 11. This overbroad reading of "the Program" is incorrect, and contrary to our intent as the drafters of GPLv3.

The word "any" is susceptible to multiple, subtly different shades of meaning in English. In some contexts, "any" means "every" or "all"; in others, including the definition of "the Program" in GPLv3, it suggests "one particular instance of, selected from many possibilities". This variability has to be resolved by the context. This context resolves it, but it requires some thought.

We could have worded the definition of "the Program" differently, such as by using "a particular" instead of "any", but that would not have eliminated the need for thought. The phrase "a particular work licensed under this License", regarded in isolation, would not necessarily signify *the* particular work received by a particular "you" in a particular act of licensing or distribution. Our review of other free software licenses shows that they raise similar issues of interpretation, with words of general reference used in order to facilitate license reuse.

Given that no choice is so clear that all other candidate meanings must be rejected, "any" has certain advantages. It is a somewhat more informal and less legalistic usage than the possible alternatives, an appropriate register for the developers reading and applying the license. Moreover, the usage of "any", through its suggestion of selection out of many qualifying possibilities, has the effect of emphasizing the reusability of GPLv3 for multiple works of software and in multiple licensing situations. The GNU GPL is intended to be used by many developers on their programs and that too needs to be clear.

The same use of "any" that has given rise to interpretive concerns under GPLv3 exists in GPLv2, in its corresponding definition. Section 0 of GPLv2 states:

This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law …

However, it has always been the understanding of the FSF and others in the GPL-using community that "the Program" in GPLv2 means the particular GPL-covered work that you receive, before you make any possible modifications to it. The definition of "the Program" in GPLv3 is intended to preserve this meaning.

We can find no clause in GPLv3 in which applying the suggested broad interpretation of "the Program" (and the superset term "covered work") would make sense or have any practical significance, consistent with the wording of the clause and its drafting history. The patent provisions of GPLv3 are a case in point.

The third paragraph of section 11 states:

Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version.

A "contributor" is defined as "a copyright holder who authorizes use under this License of the Program or a work on which the Program is based."

The broad reading of "the Program", it has been suggested, gives rise to an unreasonably broad patent license grant. The reasoning is that, for a given GPLv3 licensee, the set of contributors granting patent licenses becomes all GPLv3 licensors of all GPLv3-covered works in the world, and not merely licensors of the specific work received by that licensee in a particular act of licensing.

Close attention to the wording of the patent license grant, however, shows that these concerns are unfounded. In order to exercise the permissions of the patent license grant, a GPLv3 licensee must have "the contents of [the contributor's] contributor version" in his possession. If he does, then he is necessarily a recipient of that material, licensed to him under GPLv3.

Therefore, contributors are always the actual copyright licensors of the material that is the subject of the patent license grant. The user benefiting from the patent license grant has ultimately received the material covered by the grant from those contributors. If it were otherwise, the patent license grant would be meaningless, because the exercise of its permissions is tied to the contributor's "contributor version". The contributors and the section 11 patent licensee stand in a direct or indirect distribution relationship. Therefore, section 11, paragraph 3 does not require you to grant a patent license to anyone who is not also your copyright licensee. (Non-contributor redistributors remain subject to applicable implied patent license doctrine and to the special "automatic extension" provision of section 11, paragraph 6.)

There is similarly no basis for the broad reading of "the Program" when one considers the patent-related clause in the third paragraph of section 10. This clause provides:

[Y]ou may not initiate litigation (including a cross-claim or counterclaim in a lawsuit) alleging that any patent claim is infringed by making, using, selling, offering for sale, or importing the Program or any portion of it.

Coupled with the patent license grant of section 11, paragraph 3, and the termination clause of section 8, this section 10 clause gives rise to a patent termination condition similar in scope to that contained in the Apache License version 2.0.

The FSF sympathizes with the intent of broad patent retaliation clauses in some free software licenses, since the abolition of software patents is greatly to be desired. However, we think that broad patent retaliation provisions in software licenses are unlikely to benefit the community, especially those clauses which can be triggered by patent litigation concerning other programs unrelated to the software whose license permissions are being terminated. We were very cautious in taking steps to incorporate patent retaliation into GPLv3, and the section 10, paragraph 3 clause is intended to be narrower than patent retaliation clauses in several other well-known licenses, notably the Mozilla Public License version 1.1, with respect to termination of patent licenses.

If the suggested interpretation of "the Program" applied to the section 10, paragraph 3 clause, the result would be a radical departure from our consistent past statements and policies concerning patent retaliation, which we clearly did not intend.

Other text in GPL version 3 shows the same policy. The patent litigation clause in section 10 was added to Draft 3 of GPLv3 as a replacement for part of the previous clause 7(b)(5) (in Draft 2). Clause 7(b)(5) permitted the placement of two categories of patent termination provisions on GPLv3-licensed works:

terms that wholly or partially terminate, or allow termination of, permission for use of the material they cover, for a user who files a software patent lawsuit (that is, a lawsuit alleging that some software infringes a patent) not filed in retaliation or defense against the earlier filing of another software patent lawsuit, or in which the allegedly infringing software includes some of the covered material, possibly in combination with other software …

Section 7 does not state the GPL's own policy; instead it says how far other compatible licenses can go. Thus, that text in section 7 would not have established broad patent retaliation; it only would have permitted combining GPL-covered code with other licenses that do such broad patent retaliation.

Nonetheless, as explained in the Rationale for Draft 3, such broad retaliation was criticized because it could apply to software patent lawsuits in which the accused software was unrelated to the software that was the subject of the license. Seeing that there were no widely used licenses with which this would provide compatibility, in draft 3 we dropped broad patent retaliation from the range of GPL compatibility.

We did so by replacing 7(b)(5) with text in section 10, in which we kept only what corresponded to the second category. The first category therefore reverted to being a GPL-incompatible "further restriction" in Draft 3, and likewise in GPL version 3 as actually published.

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