Perspective: So much for the 'new and improved' GPL

In the month since the release of the third draft of the Free Software Foundation's GPLv3, much of the open-source community has been oddly incommunicado.

Slashdot and GrokLaw, the major homes for the community's individual members, bulge with posts. But reaction from the corporate wing of the movement--starting with its semi-official spokesman, the Linux Foundation--is silence.

Why the companies hit the mute button just when one would expect a coordinated chorus of huzzahs is a matter for speculation, but here is a hypothesis: Maybe because after two years of drafting, redrafting and re-re-redrafting, the product finally went to the corporate general counsels, and these folks promptly went ballistic over the ambiguities, uncertainties and risks.

Can you imagine an IT company risk having to inform the maker of a $100 million movie that it just gave away the creator's right to protect the work--solely out of dedication to the open-source community or because of the legal advice offered in a blog posting?

To illustrate their likely concerns, focus on one major problem: Will content companies, such as movie, music and book producers, and those who want to provide them with information technology services, be able to attach Digital Rights Management (DRM) technologies, a.k.a. Technological Protection Measures (TPM), to programs that are licensed under GPLv3? Since every Linux distribution contains many programs controlled by the Free Software Foundation, this presents no small issue.

If GPLv3 and DRM are incompatible, then no one will be able to add DRM to a Linux system, whatever Linus Torvalds decides about putting the kernel under v3.

The FSF is strongly hostile to DRM. The first draft of the v3 revision expressed this philosophy directly: "This license intrinsically disfavors technical attempts to restrict users' freedom to copy, modify and share copyrighted works. Each of its provisions shall be interpreted in light of this specific declaration of the licensor's intent," and, while the words may have been toned down, the anti-DRM tune remains loud and clear.

The FSF's position on DRM is not new. What is new is a fundamental change in the reach of the license terms that makes that hostility more of a threat.

In the earlier version 2 of the GPL, the focus was on redistribution of covered code. As long as a user of a 'GPLed' program did not transmit the code on to others, it was free to do what it wanted. It could attach propriety applications, tweak the code internally, add DRM, whatever. None of these actions triggered any obligations under the license. Such bright lines make corporate lawyers happy.

The current version 3 changes the situation by adding anti-DRM provisions that could reach into a user's internal operations even if the user does not redistribute code.

This crucial shift is accomplished in three ways. First, via wording that says anyone using code covered by the GPLv3 automatically gives up any rights to use the anti-code-cracking provisions of the Digital Millennium Copyright Act against someone who changes the code for the purpose of getting around any attached DRM programs.

Would it work? Would a waiver given by a code distributor bind those later in the chain of distribution? Probably. Would the waiver matter? Maybe.

A second anti-DRM measure contained in the same discussion says that selling or renting a consumer electronic device with 'GPLed' code in it (unless it is in ROM) constitutes a distribution that requires the code be both revealed and modifiable. Translation: If that code contained any DRM measures, these could be found and removed.

Again, would this matter? Well, what about cell phones, which are subsidized by wireless companies and rigged to be specific to the subsidizer's network. Under this provision, a program to remove this limitation could be sold freely, which would certainly upset the wireless companies, and possibly end the subsidies.

Yet a third anti-DRM arsenal is buried in the "definitions" section of the draft discussion. This is a requirement that code dynamically linked to GPLed code is also subject to the disclosure requirements of the GPL. Thus, even if DRM were included in a separate program, it could be covered, depending on how far, exactly, this murky requirement extends.

You can argue about the import of these provisions. Open-source advocate Bruce Perens was recently quoted criticizing claims that GPL 3 invites legal risks. FUD. But there is disagreement whether that's true. In none of the FSF materials is there any discussion of the specifics--of watermarking, High Bandwidth Digital Content Protection, deep packet inspection, acoustic fingerprinting--and how they would be affected. It is all abstraction, provided against a background of bitter hostility.

In fact, the addition of these murky provisions creates huge uncertainties about the impact of the license on content creators' ability to incorporate DRM. Can you imagine an IT company that risks having to inform the maker of a $100 million movie that it just gave away the creator's right to protect the work--solely out of dedication to the open-source community or because of the legal advice offered in a blog post?

The late lights will keep burning at the Linux Foundation as they try to figure out what to do about this not-so-little problem.

Biography
James V. DeLong is special counsel for Kamlet Shepherd & Reichert. He is also vice president and senior analyst for the Convergence Law Institute. The opinions expressed here are the author's alone.

More Perspectives

[Philips]

Same old *wrong* argument

Quote:
"Can you imagine an IT company risk having to inform the maker of a $100 million movie that it just gave away the creator's right to protect the work--solely out of dedication to the open-source community or because of the legal advice offered in a blog posting?"

Can you imaging people watching the $100 million movie - w/o their brains before washed by excessive advertisement campaign??? (What in fact explains the $100 million ticket.)

People do put their work under GPL not because they want to earn money, but because they want to share their success with others. Or even more: collaborating with each other thanks to leveled ground of GPL.

Can you imaging studios pulling resources together to make the "$100 million movie" magnitudes cheaper - and more affordable to watchers?

Movies before were part of culture and bore message, now they are commercialized entertainment few would want - unless heavily advertised.

FLOSS (Free/Liberty Open Source Software) on other side is rarely advertised - because we people choose it without pitch from paid up self-proclaimed think-tanks.

[samkass]

Actually, it's a good argument

I think in some ways you're agreeing with the article. Regardless of
the motives of the GPLv3, it's a huge change in the way the studios
would be forced to do business, and thus a huge risk. Seeing as
they have other options (ie. don't use any open source and still
have 95% of the market available to them), I think they'll take the
low-risk approach. The GPLv3 is like holding a gun to your own
head and saying "drop DRM or I'll shoot!"

[aim9x]

DRM is misguided

Gee, think you could use any more emotionally charged terms?
Your piece reads more like a polemic than industry analysis.

Many folk are anti-DRM. They see DRM (correctly) as eroding fair
use terribly. Further, there is the underrecognized issue of media
becoming unplayable in the future because of abandoned DRM
infrastructure. If I pay 99 cents for a track, shouldn't my
grandchildren be able to listen to it also? I know the record
companies would like to sell me "Stairway to Heaven" from LZ4
1,000 separate times, but in my mind I should only have to buy it
once.

Steve Jobs, of all people, came out strongly against DRM recently,
and announced a deal for DRM-free music from a major record
label. There is progress...

[tropicalmonkey]

I agree

In future we might start seeing cars meant to be driven only 1000 miles (or some other finite distance) and only one person inside the car etc. If you want use it for anything more than that you must upgrade -- it which can be done on line by the due fee.

Everything in life is going to be on rental basis. Microsoft will really like to have subscription based software services. Google is already doing that. What if we all agree that we will send our pay checks to Microsoft and let them divide it among all these blood sucking giants.

Companies will always find novel ways to keep their growth rate at 70% annually. They are obliged to do that because they are all "public" companies even though 99% of the publics are within the company itself.

[PolarUpgrade]

DRM denies due process and has no Open software role

Why would any open software process support DRM? There are two problems with DRM. First, because modern DRM systems have the unilateral ability to enforce a punishment without the traditional role of a law court being involved (e.g. Windows Genuine Advantage validation kill switch) due process is denied to the user. Second, as copyright is a license-based process, DRM takes the customarily over-written aspect of a typical contract (that part that's there to help inspire adherence but is rarely if ever enforceable in practice) and makes it all enforceable--thereby greatly tightening the IN EFFECT terms of any one copyright license.

We need to recognize DRM for what it is: A big business strategy for stripping citizens of their legal right to due process, and a cleverly stealthed way to create contracts that are far more restrictive than normal contracts (licenses) and therefore hugely overweighted to favor Big Copyright.

[rbanffy]

DRM and fair use

DRM can be used to prevent you from using a device you purchased for the purpose you intended by imposing artificial limitations on its use. As such, it is fundamentally incompatible with the freedoms the GPL demands the consumer to have - it's more of a consumer rights issue.

As for big studios, they must learn new ways of making money because technology have caught up and there is no way to put a genie back into its bottle - the world changed and they have to live with it. Just like the dinosaurs did and evolved into chickens. ;-)

As for musicians, they never really liked the recording industry and its demise won't be missed.

This brave new world does not belong to either of them.

[ewelch]

Yes, but...

...the question in their minds is, if they have to give up DRM,
what do they get in return that guararntees they can remain in
business?

It's easy to put soemone else's job at jeopardy, but what if your
boss came to you and said, "Working for pay is so old world. In
the brave new world, we work for the satisfaction of a good job
done. Se we're going to stop paying you."

Sure, it sounds like an idyllic world where money is irrelevent
(like Star Trek) where everybody does what they love and the
world is all bright and sunny. But the transition from a market-
based economy to something else is not going to be easy. And
many people are not going to go willingly. Forcing movie
studios, and/or software developers to go first is not likely
going to be successful. Which puts Linux and other open
software in the position of niche, leaving the world to
proprietary content creators and software developers who don't
subscribe to the high ideals of open software.

It's a dog-eat-dog world, and this dog don't hunt.

[weegg]

Who says they need to remain in business

They are obsolete.

Besides DRM is a waste of CPU cycles.

[cheeseboy--2008]

The DMCA is a mess.

Allowing users to circumvent DRM at will without fear of being thrown in jail or sued penniless only moves the rules back to where they were before the RIAA and MPAA bought congress.

[regulator1956]

DMCA Works Fine

for 95% of users.

Most people don't watch DVD's on computers. Very few people have issues with DMCA on CDs or downloads.

Are a small number of people frustrated? Yes. Is the DMCA holding back technology? Yes.

My parents only use a DVD player connected to a TV to watch DVDs. No DMCA issues.

My kids have iPods. Between buying songs off iTunes and ripping CDs, they have no significant DMCA issues.

My neighbors are in the music business. 1 sings and the other produces and plays piano. They are independents that make their living from music. Without copy protection, they're dead.

Being idealistic belongs in college discussions, not the real world.

[CompEng]

Not the whole story

The story behind the DMCA is who has the power, who gets the control, and who gets the money. The answers are: the corporate DRM owner, the corporate DRM owner, and the corporate DRM owner. To some extent, that's fair, but there are important grey areas, and real questions as to whether that really is best for everyone.

For Mom and pop who want to pay a reasonable fee to corporate giant X, there's no conflict here.

For small businesses trying to take on corporate giant X, there's a problem. For independent folks who already think corporate giants A-Z already have too much control over money and political power (like me), there's a problem. This also goes for the do-it-yourselfer, student, educator or hobbyist trying to learn the and build their own solutions just for the experience or personal edification. And for people frustrated because they bought the competing incompatible solution form corporate competitor Y might have something to say about it in a couple years too.

There are real stakes here, whether they are your stakes or not. The 5% of people that care are the ones building the future in a field, not the 95% that don't: that's true in any field your care to name. So please don't try to dismiss minority opinions because they are minority opinions. It's foolish and irritating.

[expatincebu]

Ripping DVD's is easy

And music is ridiculously easy to get free. If the greedy corporations were not overpricing their goods so much there would be no incentive for people to make copies. DRM exist to protect big profits for corporate managers, not the artist.

[wiredsux]

Fringe group

Maybe GPL v4 will require all users to give up their right to bear arms, and mandate that all communications and work done on the system be property of the Free Software Foundation. You get what you pay for, and in this case, FREE has never been more expensive.

I'm dumping Linux, it never really catches on no matter what they current hype. Microsoft still has capabilities and productivity that Linux cannot match.

[MSSlayer]

wow

Feel better?

Have fun with your unsecure OS that tells you what you can and can't do and makes you prove your innocence on a regular basis.

What capabilities are missing in Linux that an archaic dinosaur of an OS(Windows-all versions) has?

[Penguinisto]

Huh?

Err, someone oughta tell this guy that...

1) Slashdot and Grocklaw aren't the "majority" of the Open
Source community - Hell, they're not even a quorum. Try
linuxtoday.com, linuxquestions.org, sourceforge.net, kernel.org,
debian.org, fedora.redhat.com, ubuntu.com, mozilla.com... Does
the author even know *** he's talking about?

2) GPL version 3 is still a draft-in-progress.

3) Why yes, the FSF [i]is[/i] hostile to DRM, and for a damned
good reason - nothing like having solid open software, only to
see it choked off by hardware that runs only 'properly' DRM'd
code, or have it locked cold by a software patent (the GPL only
covers copyright, not patents... until v3, that is).

3a) "[i]What is new is a fundamental change in the reach of the
license terms that makes that hostility more of a threat.[/i]" Heh
- it's only a threat to patent trolls and DRM-craving cartels.
Everybody else will get along just fine with it, developers
included.

4) [i]" Well, what about cell phones, which are subsidized by
wireless companies and rigged to be specific to the subsidizer's
network."[/i] Ever hear of the iPhone? If the iPhone takes off, cell
phone networks may well become a thing of the past anywhere
there's free Wireless Internet to be had (think iPhone + built-in
WiFi + Skype, and you can see why cell phone carriers are
clinging in abject fear to their proprietary contract-heavy
business model). I for one say "bring it!" Nobody said that cell
carriers had a right to exist.

CNET, seriously... next time, can you get a guest that knows ***
they're talking about? Thx in advance.

/P

[solrosenberg]

GPL is lame

Use the Beerware license.