Newsmaker: Defender of the GPL

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When you talk about those who use GPL-covered software inside their product--Richard Stallman mentioned to me one was TiVo, which uses Linux in its video recording products--under the new digital rights management provisions of the GPL 3 draft, is that something that will be impossible?
Moglen: TiVo is a provider of hardware and software combinations to be used by people. Our concern with them is that they have rights as users, but they should respect the rights of the users to whom they sell. Having a personal video recorder which reports every button you push to headquarters when you use the remote control--and which won't run software if you modify the box so it snoops on you a little less--is not user-respecting conduct. (TiVo) complied with GPL 2 by the skin of its teeth.

What TiVo needs to do--what everybody needs to do who makes electronic devices--is to stop injuring users to help movie companies. We don't want our software used in a way which batters the head of the user to please somebody else. Our goal is the protection of users' rights not movies' rights, and that's the problem with TiVo. It was a problem under GPL version 2, and we worked with them to help them comply with the specific terms of GPL version 2.

It will be harder to comply with the terms of GPL version 3 because GPL version 3 contains language in our discussion draft designed to separate the world of freedom from the world of DRM. That's the difficulty that TiVo has. It is trying to straddle the line between freedom and un-freedom just a little too closely.

We can assume that Microsoft is going to put DRM into just about everything it does. Is the intention here just to have a very clear separation between these two worlds, to (ensure) that DRM just does not exist in the free software world?
Moglen: DRM of the kind that users can't control, modify or otherwise interact with in a controlled way is fundamentally incompatible with the principle that users ought to be in control of their computers and the technological laws. We didn't say that the only thing that we were going to do was stuff that was in irrepressible conflict with the movie industry. The movie industry said the only thing they would accept is stuff that was in irrepressible conflict with us.

What Mr. Stallman is saying is, "Well, if that's how you see it, then I've got to protect the freedom of the people whose freedom is my primary concern."

We just want to make sure that they're not allowed to throw rocks at the heads of all the users on Earth...

We will take a certain amount of criticism about this from companies, which are caught in the middle. They don't have a dog in that fight and they will be unhappy with us for saying strongly what our side of the dispute is. But we didn't beat them up in the first place. Disney beat them up in the first place. The CEO of the Walt Disney Co. went and testified before the United States Congress that the business model of...Apple Computer was piracy.

We just want to make sure that they're not allowed to throw rocks at the heads of all the users on Earth, the way they throw rocks at the heads of the IT companies. If the IT companies complain about the anti-DRM provisions in the GPL, I will say we have to defend our users' rights just as strongly as Walt Disney and the other companies attacked them.

As I'm sure you know, it's damn hard to make a modern movie for release in theaters without using free software. They benefit from the work we do all the time. Modern special effects, which are what their remaining lousy little business depends upon, are impossible without us. Not withstanding that they are uniquely indebted to us for what they do, they still refuse to respect our users' rights.

Mr. Stallman made perfectly clear that his point of view is: The world has to pay attention to that problem the way the world needed to pay attention to the patent problem 10 years ago. Now I recognize that that's a highly aggressive position, but it's not aggression. It's a defense related to an aggression, which was launched against the people whose rights are our primary concern.

But does this aggressive stance against DRM ultimately benefit non-free software--in this case it'd be Windows? If Disney cannot stomach the use of Linux because of these new DRM provisions, won't they just go with Windows?
Moglen: Their truthful situation is more difficult than that. They are compelled to behave now in a fashion which is obviously inequitable. If they could make movie special effects and do their rendering using software that didn't also come with freedom attached, perhaps they would. It would at least render them consistent.

That they find it necessary...to use the benefits of software conceived in freedom and then to turn around and try to deny those benefits to other people is obviously flat unfair. They're very good at image-making, and it takes a lot of image-making for them to prevent people from seeing that inconsistency as clearly as it should be seen.

How close to final form is the GPL 3 draft? Do you expect major changes or is this 90 percent of the way?
Moglen: I wouldn't pre-judge that. Richard (Stallman) and I know a lot, but we don't know everything.

Richard did say quite specifically this morning that on the issue of patents that there's not much room for negotiation.
Moglen: What won't change is the ethics. What won't change is the commitment to users' freedoms. What will change is (that) people will tell us facts about the world and facts about how free software is used and distributed that we don't know. They may know facts about how the license can be evaded that we don't know, and they may find bugs, failures to do what we thought we were doing. In all those ways, changes will occur. When Mr. Stallman says our principles won't change, those are my instructions. After 13 years of being his lawyer where the principles have not changed, I see no reason to believe they're going to change in the 14th.  

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