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Re: GPLv3 comedy unfolding -- against the threat of invasive para-copyr

From: Alexander Terekhov
Subject: Re: GPLv3 comedy unfolding -- against the threat of invasive para-copyright
Date: Thu, 03 Aug 2006 14:35:53 +0200

Opinion on Digital Restrictions Management

Technological measures to defeat users’ rights, and the response to those
measures embodied in Draft 1, have been a particularly active subject of
discussion and debate in the first round of public deliberation.

These measures — often described by such Orwellian phrases as “digital
rights management,” which actually means limitation or outright destruction
of users’ legal rights, or “trusted computing,” which actually means
selling people computers they cannot trust — are alike in one basic respect.
They all employ technical means to turn the system of copyright law, where
the powers of the copyright holder are limited exceptions to general freedom,
into a prison, where everything not specifically permitted is utterly
forbidden, and indeed, if the full extent of their ambition is realized, would
be technically impossible. This system of “para-copyright” has been created
since the adoption of GPLv2, through legislation in the United States, the
European Union, and elsewhere that makes it a serious civil or even criminal
offense to escape from these restrictions, even where the purpose in doing so
is to restore the users’ legal rights that the technology wrongfully prevents
them from exercising.

As a digital rights organization, we would not be following our mission if
we did not oppose these injustices. But the reason our license must respond
to these practices at all is the result of a remarkable irony. Those who wish
to impose DRM on the public would like to do so by using software covered
by the GPL, a license that is intended to preserve the very freedom that
they seek to crush. They are not satisfied merely with publishing programs
having limited capability, which free software permits. They seek to go
further, to prevent the user from removing those limits, turning Freedom 1,
the freedom to modify, into a sham.

GPLv2 did not address the use of technical measures to take back the
rights that the GPL granted, because such measures did not exist in 1991,
and would have been irrelevant to the forms in which software was then
delivered to users. But GPLv3 must address these issues: free software is
ever more widely embedded in devices that impose technical limitations on
the user’s freedom to change it.

These unjust measures must not be confused with legitimate applications
that give users control, as by enabling them to choose higher levels of system
or data security within their networks, or by allowing them to protect the
security of their communications using keys they can generate or copy to
other devices for sending or receiving messages. These technologies present
no obstacles to the freedom of free software. The user is presented with
choices, and figuratively as well as literally retains all the keys to the 

By contrast, technical restrictions that allow other parties to control the
user have no legitimate social purpose. In existing applications where the
user is not afforded the same degree of real power to modify the free software
in his system that vendors or distributors have retained, or have conveyed
to third parties, the software has been delivered in a fashion that violates
the spirit of the GPL, regardless of whether it complies with the letter of
the license. The freedoms the GPL grants have actually been withdrawn by
technical means. It may even be a crime for the user to modify that free
software to escape from those restrictions and regain control over what is
still, at least nominally, his own system.

To highlight the essential issue of preserving Freedom 1 as a real, practical
freedom, we have rewritten the relevant sections of the license. In section
1, we have tried to limit as precisely as possible the situation in which an
encryption or signing key is part of the Corresponding Source Code of a
GPL’d work. Where someone is provided a GPL’d work, he must receive
the whole of the power to use and modify the work that was available to
preceding licensors whose permissions he automatically receives. If a key
would be necessary to install a fully functional version of the GPL’d work
from source code, the user who receives the binary must receive the key
along with the source. The requirement of full functionality, which we have
illustrated with examples, is no more optional than it would be if GPL’d
software were redistributed with an additional license condition, rather than
a technical limitation, on the uses to which modified versions could be put.1

1 There is a clear distinction between this situation and the situation of 
authenticated modules or plug-ins distributed as part of a multi-component 
software system, so that instances of the software can verify for the user 
the integrity of the collection. So long as the decision about whether to 
run a modified version is the user’s decision, not controlled by a preceding 
licensor or a third party, the vendor’s authentication key would also not
qualify as part of the Corresponding Source under the language we have 
adopted for Draft 2.

In section 3, which has been retitled as well as redrafted, we have specifically
stated the rule, previously implicit, that modes of distribution that
establish limitations on use or modification that are inconsistent with the
terms of the license are not permitted by the license. In addition, we have
added disclaimers, based on advice of counsel from nations that have enacted
para-copyright provisions akin to the Digital Millennium Copyright Act in
the US or pursuant to the European Union Copyright Directive. We believe
these disclaimers by each licensor of any intention to use GPL’d software
to stringently control access to other copyrighted works should practically
prevent any private or public parties from invoking DMCA-like laws against
users who escape technical restriction measures implemented by GPL’d software.
We believe that these provisions, taken together, are a minimalist set of
terms sufficient to protect the free software community against the threat
of invasive para-copyright.


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