It seems that Microsoft in Bulgaria is collecting
a bunch of disparaging quotations about the GPL.
It's interesting how ecumenical they've been about this, featuring
BSD proponents who are still shunning proprietary software alongside
proprietary software advocates alongside copyleft advocates who are
just pointing out how copyleft works.
The biggest frustrations I found in reading this were two. The first
is a matter of terminology.
Briefly: the GPL is a free software license. Free software licenses
include both copyleft and non-copyleft licenses. Free software
licenses are not more or less "pure" than one another (although they
might be more or less political, or more or less radical).
"Open source" is intended to have the same denotation as "free software".
To the extent that there is any basis for distinguishing between them,
we could say that open source software is software which is licensed
or distributed in accordance with the Open Source Definition and that
free software is software which is distributed in a way which gives the
public the "Four Freedoms" identified by FSF. Historically, these were
not supposed to be distinct from one another.
It's totally incorrect and ahistorical to use "free software" to refer
to copylefted software in contradistinction to "open source" used to
refer to non-copylefted software, which some authors have started to do.
(There are definitely political reasons why people favor one term or
the other, but that does not imply that the terms refer to different
kinds of software or licenses.)
The second thing which bothers me is the kind of anxiety and
uncertainty about copyleft and the "viral" nature of copyleft.
Proprietary software developers don't make a habit of
incorporating random code written by other people without
understanding the legal status of that code. If they do that,
they're already in deep trouble, GPL or no GPL. Using work
without permission, absent some defense, is simple copyright
infringement. Those responsible developers who want to follow
the law therefore don't use code without obtaining permission,
and they pay attention to the nature and terms of that
permission.
Now, maybe if you infringe the copyright of a non-GPLed program
by incorporating it into your work, the copyright holder of that
program might settle with you for money, whereas if you did the
same thing with a GPLed program, the copyright holder might only
settle for your source code. (I've seen this happen several
times.) So there is a difference in motivation of some
people publishing GPLed software which may make settling a
copyright infringement claim by them harder. But if you weren't
infringing a copyright in the first place, you wouldn't be running
this risk.
The quotations collected repeat the suggestion that copyleft is
anti-commerce or anti-business.
It's not,
but it does attack a particular business model; if you use that
business model, then the GPL, by design, prevents you from using
GPLed code in certain ways. (You might still be able to use it
in other ways.) I don't understand why this is something to be
particularly anxious about.
Copyleft critics like Brett Glass who are quoted there do have a
point, to the extent that they disagree with the goals of copyleft.
Because copyleft has been fairly effective at achieving its goals,
if you disagree with those goals, it makes sense to criticize
copyleft for its very effectiveness. But this has nothing to do
with whether copyleft is a legal risk to you as a business
or software developer.
(Brett Glass has a second point, which is that some people who have
heard of free software don't understand copyleft or haven't learned
the consequences of a particular copyleft license. It occurs to me,
for example, that a lot of articles about free software in the press
seem to suggest that all free software can be used by anyone in any
way with no conditions -- as though it were all in the public domain.
If that were the only thing you had heard about Linux, it might be
surprising to you to learn about the obligations in the GPL!)
Take a look through the collection of quotations and see for yourself
what you think of them. (Sorry, they're in Word format!)
I attended the oral argument of
DVD Copy Control Association v. Pavlovich before
the California Supreme Court. It was interesting.
I think both sides made some technical errors in their descriptions
of what DeCSS is and does.
What most frustrated me about what the other side had to say was
this. The DVD CCA's attorney first accurately said that Pavlovich
intended to create an open source DVD player. (That was a great
improvement over some of what they've said in the past.) DVD CCA
then went on to argue that, because creating an open source
player "defeats" or "undoes" or "destroys" CSS (by necessarily
involving publishing it contrary to DVD CCA's rules), the decision
to develop such a player shows a intent to harm technology companies
and movie studios (and that this intent is malicious).
After all, DVD CCA said, the nature of CSS as intended by its creators
was that it could not be published in an open source form (otherwise
people would be able to do copying of DVDs, because they would know
how to implement CSS without being contractually bound). Therefore,
Pavlovich would have known that publishing a CSS-implementing player
in an open source form would undermine the security of CSS and would
hurt the various California industries which had developed and relied
on the security of CSS.
DVD CCA just kept on claiming that Pavlovich knew he was
doing something wrong because he knew that the development of LiVid
was contrary to the intention of the tech companies and the studios,
and would harm their business. One of the justices (Justice Brown)
asked a great question, roughly
So, if I'm here in California, and I start to picket in front of my
house, saying "The U.S. automobile industry sucks!", can I be sued
in Michigan because I deliberately acted in a way I knew would have
effects on an industry in Michigan?
I'm biased on this point, but I thought DVD CCA's answer was evasive.
It dodged the suggestion that there are legitimate activities which
can be expected to harm someone's business, and promptly went back to
an earlier analogy which compared Pavlovich's conduct to that of
somebody firing a rocket.
(Shannon Lafferty
covered this hearing for The Recorder, and reports that Brown asked
"What is it about what he did
that makes it appropriate for California to exercise jurisdiction? If
I picketed in front of my house with a sign, 'American car companies
are terrible,' I can be sued in Michigan?".)
I found something which DVD CCA's attitude reminded me of. (I fear
that a whole bunch of law students will start finding this page
through searches, because of what I'm about to reproduce below. Maybe
that's not a bad thing.)
Two masters of a grammar school at Gloucester brought a writ of
trespass against another master, and counted that the defendant
had started a school in the same town, so that whereas the
plaintiffs had formerly received 40d. or two shillings a
quarter from each child, now they got only 12d., to their
damage, & c.
TILDESLEY. His writ is worthless.
SKRENE. It is a good action on the case, and the plaintiffs
have shown well enough how they are damaged; wherefore, & c.
HANFORD, J. There may be damnum absque injuria [a loss without
a (legally cognizable) injury]. As if I have a mill, and my
neighbor builds another mill, whereby the profit of mine is
diminished, I shall have no action against him; still I am
damaged, quod Thirning, C.J., concessit, and said that the
instruction of children is a spiritual matter; and if one retains
a master in his house to teach his children, it is a damage
to the common master of the town, yet, I think, he will have
no action.
SKRENE. The masters of Paul's claim that there shall be no other
masters in all London except themselves.
HORTON demurred because the action was not maintainable.
HILL, J. There is no ground to maintain this action, since the
plaintiffs have no estate, but a ministry for the time; and though
another equally competent with the plaintiffs comes to teach the
children, this is a virtuous and charitable thing, and an ease
to the people, for which he cannot be punished by our law.
SKRENE. If a market is erected to the nuisance of my market I
shall have an assize of nuisance; and in a common case, if
those coming to my market be disturbed or beaten, whereby I
lose my toll, I shall have a good action on my case; so here.
HANKFORD, J. Not the same case, because in the case put you have
a freehold and inheritance in the market; but here the plaintiffs
have no estate in the schoolmastership, & c., but for an
uncertain time, and it would be against reason for a master to
be hindered from keeping school where he pleases, unless where
a university was incorporated or a school founded in ancient
times.
And the opinion of the court was that the writ would not lie.
Wherefore it was awarded that they should take nothing, & c.
("The Schoolmaster Case", Y.B. 11 Hen. IV, 47 (1410).)
What I would have loved to have seen in Pavlovich
was one of the Justices declaring that, "though another equally
competent with the plaintiffs comes to publish independently-developed
DVD player software, this is a virtuous and charitable thing, and an
ease to the people, for which he cannot be punished by our law". Of
course, since this was just an argument about jurisdiction, the
Court wasn't actually considering the merits of the case.
But they sure liked to talk about the damnum and not so much
about the injuria.
DVD CCA is still pushing this idea that Matthew Pavlovich knew
that "there was a licensing entity for CSS" or "there was a
licensing process for CSS" or something. Their theory seems to
be that, since Matthew allegedly knew that such a process
existed but chose not to participate in it, his intent must
clearly have been wrongful. (The idea that he wanted to compete
with them and, like the new school master in 1410, didn't properly
require their permission to do so seems foreign to DVD CCA.)
I'm not feeling creative enough to attack this reasoning with
actually creative analogies, so I'll just give a boring
analogy.
I hereby declare that there is a licensing process for learning
the prime factors of 402596090603198404541749. Whoever wants
to incorporate these factors into a new product should send a stamped,
self-addressed envelope to:
NTILO Factors of 402596090603198404541749 Licensing Division
1022A Shotwell Street
San Francisco, CA 94110-4086
ATTN: Licensing Co-ordinator
along with a check for $80 (payable to "Number Theory Interim
Licensing Organization") and a signed copy of the following
agreement.
THIS IS A LEGAL AGREEMENT between parties ____________________
(hereinafter "Licensee") and Seth Schoen dba Number Theory Interim
Licensing Organization (hereinafter "Licensor").
The parties agree as follows:
RECITALS.
- Licensor has developed, and desires to license to Licensee,
valuable trade secret information and data, namely a mathematical
"factorization" of the integer 402596090603198404541749 (hereinafter
"Factorization").
- Licensee, a (natural person) (corporation) (____________) located
in _____________________, desires to obtain, for its own use in
mathematical research and/or product development, a copy of
Factorization from Licensor.
- The development of Factorization required intense efforts
on the part of Licensor for several minutes on September 6, 2002.
CONFIDENTIALITY.
Licensee understands that Factorization is unique and cannot,
if compromised, be replaced by any other factorization. Accordingly,
Licensee acknowledges that Factorization constitutes valuable
proprietary trade secret information. Licensee undertakes and
agrees not to publish or disclose Factorization to any party without
prior written content of Licensor. Licensee agrees that
Factorization is provided only for its own use in mathematical
research and/or product development and that, by this agreement,
Licensee acquires no proprietary right or interest in Factorization.
LICENSE FEE. Licensee agrees to pay a license fee of $80.00 (eighty
dollars) ("License Fee") to Licensor, in consideration for Licensee's
license to possess and use Factorization.
ENFORCEMENT OF AGREEMENT. If Licensee shall breach this agreement,
Licensor shall suffer immediate and irreparable damage for which it
has no adequate remedy at law. Therefore, Licensee and Licensor
agree that Licensor may be entitled to equitable relief in addition to
any remedy at law. Licensee agrees that, in the event of unauthorized
disclosure or publication, Licensor shall be entitled to an injunction
to prevent further disclosure.
ENTIRE AGREEMENT. This is the entire agreement between Licensee
and Licensor and supersedes any prior agreement. This agreement
may not be modified other than by subsequent written agreement
between Licensee and Licensor.
GOVERNING LAW. This agreement shall be governed by the laws of
the State of California. Exclusive jurisdiction and venue for all
matters relating to the enforcement of this License shall be in courts
in the county of San Francisco, California, and the parties hereby
consent to such jurisdiction and venue.
SEVERABILITY. In the event that any of the provisions
of this agreement shall, for any reason, be held by a court of
competant jurisdiction to be invalid, illegal or unenforceable in
whole or in part, such invalidity, illegality, unenforceablility, or
other defect shall not affect any other provision of this agreement,
but this agreement shall be construed as if such invalid, illegal or
unenforceable provisions had never been contained in it.
By: ______________________________
Title: _____________________________
Date: ______________________________
Licensee ____________________________
By: ______________________________
Title: Licensing Co-ordinator
Date: ______________________________
Licensor NTILO
Now all of you know that "there is a licensing procedure" which you
must follow if you want to know the factors of
402596090603198404541749 or use them for any purpose. Don't let
me catch you misappropriating my factors!
Anyway, the California Supreme Court sits in San Francisco, not
Sacramento, and has a beautiful courtroom in the Civic Center not at
all far from UC Hastings. You can take BART to their arguments.
(You'll have to pass through two metal detectors and surrender any
weapons or electronic devices -- pocket knives would actually pose an
interesting problem because only the 2nd metal detector's operators
are equipped to check personal possessions.) Admission is free and
open to the public; most attendees dress up.
I personally wore my suit to court, and I looked something like this:
If I'm very lucky, I'm going to be hearing an argument in the
Supreme Court of the United States not long from now. I have to
make some arrangements first, though.
Drew Clark
published a useful article about technology and copyright.
Praveen took me to the ACCRC, which is a
computer recycling center out in Alameda, where a group of people were
working on preparing some computers to be sent to Ecuador. The ACCRC has
a huge space full of all kinds of computers and computer parts -- hundreds
of monitors on pallets, hundreds of computers stacked up everywhere, racks,
servers, hard drives, modems...
It reminded some of us of
Weird Stuff's
warehouse. In fact, the two places have a lot in common.
It was really very impressive to see the scale on which they operate. Since
computers are now classified as hazardous waste, on account of the heavy
metals, people are actually paying ACCRC to take their old computers. (The
rates are very reasonable.) ACCRC, in turn, is able to pay salaries to
people who work on the recycling projects, and the computers are eventually
donated to a huge range of schools, organizations, and poor communities.
Parts which are completely broken are sold for scrap to scrap dealers who,
I'm told, will dispose of any resulting waste according to the best current
practices.
Hey, what rhymes with "copyright"? one attempt is
"haughty might".
You can do it by rhyming "copy" and "right" individually -- e.g.
"choppy light", "sloppy kite", "poppy bite", etc.
Sometimes copyright law requires levies, or taxes, on a particular
technology in order to compensate copyright holders for infringement
which is likely to occur using that technology and which (it's
argued) is impossible or impractical to regulate any other way.
Often, this approach is coupled with a compulsory license, or a
rule saying that certain kinds of copying or other activity
using equipment or media on which a levy has been paid will
not be copyright infringement -- because copyright holders have
already been compensated by the levy for that activity.
The most standard U.S. example is the Audio Home Recording Act,
which provides for levies on certain technologies (defined as
"Digital Audio Recording Media" (DARM) and "Digital Audio
Recording Device" (DARD)); there is a corresponding rule that,
roughly, the use of these technologies for home recording of
copyrighted musical works is not an infringement of copyright.
(That was likely true anyway under pre-existing copyright law,
but AHRA at least clarifies this so people can have some
certainty about it.)
I have right here a DARM on which I paid a levy (or at least
on which somebody paid a levy, and the cost was certainly
passed along to me) -- an MPO MiniDisc, which amusing advertises
"Extra High Digital Grade" (as opposed to that low-quality
digital recording regular MiniDiscs offer?).
These levies are unfair, because they punish everyone for some
people's copyright infringement (and, in some sense, they
punish all people who commit less-than-average amounts of
copyright infringement as though they had committed an
average amount of copyright infringement). In some cases,
there might be no way to get out of a levy even by showing
that a technology would be used for a strictly non-infringing
purpose.
However, levies are an extremely interesting proposal to
consider in contradistinction to harsh technology regulatory
regimes advocated by some copyright holders. As most readers
of this diary will be aware, some copyright holders have been
advocating for years that technology which can likely be used
to infringe copyrights (or which turn out to be used frequently
to infringe copyrights) should be banned -- or be required by
law to be redesigned in a way which would make them less useful
for copyright infringement. (The part you don't hear about is
that this always ends up making them less useful for other
things, too.)
Those proposals are a particularly terrible thing,
I think the levy approach is inherently far less restrictive,
because a levy need not be combined with a technology design
mandate. (The AHRA levy was -- it's called SCMS, or Serial
Copy Management System. SCMS has led to a pretty substantial
dissatisfaction with AHRA-regulated DARMs.) You can say that
something is subject to a tax without saying that it's illegal
to sell it. And then people who want that thing can still
purchase it, by paying the tax.
Under a mandate law like the CBDTPA, or other mandates like the
broadcast flag mandate, the most functional technology, which I
want most and which I think most technology users want most, is
not legally available at any price. You can't say "Not
only will I not infringe copyrights but I will pay the copyright
industries $5,000 to compensate them for the infringement which
they believe I will commit because they don't trust me"; no,
there's no provision for doing that.
(The DMCA is the same way, even though the electronics industry
doesn't call it a "mandate" because they haven't quite realized
that trying to interoperate with something, or modify something,
without permission from its manufacturer is virtuous and not
vicious. Although maybe they're getting
there [see "Oops"].)
European electronics industries are suggesting exactly the reverse,
that
DRM is
better than levies. (To be fair, they're not necessarily
facing legislative design mandates as urgently as are U.S.
industries, so the "alternative" to levies which threatens the
electronics industries there may be a simple boycott by the
entertainment companies, and not legislative controls.)
I think this is silly when the alternative is a government technology
mandate. In the DRM scenario, your equipment is broken and doesn't
do what you want, and, if the DRM vendor has done a good job, you
can't fix it. That's true whether the impetus for the DRM came from
a mandate or from a desire to make publishers feel comfortable. In
the levy scenario, you have to pay extra because you're being
punished for someone else's infringing activity (or for your own
infringing activity, if you are actually an infringer).
In the levy version, though, you have a choice about what to buy; you
can buy regular fully-functional unrestricted equipment. There is
still competition and there is still the possibility of getting
technology which is user-serviceable (if the levy is unaccompanied by
a "robustness" mandate). There is still the possibility of not having
someone else decide which uses you can make, which attempts at
interoperability will actually interoperate, which software you can
write, etc. (Note to trusted computing advocates: I realize that you
can write arbitrary software in a trusted computing environment. On
the other hand, you couldn't necessarily write an arbitrary media player,
not because you can't write the player itself but because you can't get
your media in cleartext form into the particular virtual machine where
your arbitrary media player is running.)
When I mentioned levies to some entertainment lawyers at BPDG, they
tended to repeat the argument that levies are unfair, because you're
being punished for what someone else is doing. I didn't know what to
say. I wanted to say that the entire BPDG process, from
beginning to end, was about punishing people for what someone else
was doing. (Losing capabilities you otherwise would have had, against
your will, is a punishment, isn't it?)
I can't understand how entertainment lawyers who are busy advocating for
you not to be able to buy particular technologies at all think that it
would be "unfair" for you instead to be taxed if you buy those technologies.
Who's constraining consumer choice more here?
- Status quo. DRM equipment: legal, no tax. Non-DRM equipment: legal, no tax
(except AHRA, DMCA, etc.).
- Mandate version. DRM equipment: legal, no tax. Non-DRM equipment: illegal.
- Levy version. DRM equipment: legal, no tax. Non-DRM equipment: legal,
with a tax levied upon purchase.
If you used an international trade analogy, you could imagine advocates of
banning something responding to a proposal to tax imports of it instead: "But
tarriffs are unfair!". Granted.
Again, perhaps EICTA and other levy opponents who are DRM proponents are
imagining a world in which DRM and non-DRM technologies compete freely
(although I think really free competition would require obliterating
anticircumvention rules). And in that vision, perhaps some publishers
are distributing things in an encrypted form which they expect will work
only with the DRM equipment.
So perhaps that's an artifact of a European climate in which levies are
seen as a real political threat and tech mandates aren't.
