On 08/03/2012 10:47 PM, Mike Linksvayer wrote:
On Wed, Aug 1, 2012 at 9:44 PM, Richard Fontana
<fontana(a)sharpeleven.org> wrote:
> Deletion of first part of anti-anti-circumvention provision
> ===========================================================
>
> While I currently continue to feel it is worthwhile for copyleft-next
> to explicitly address anti-circumvention law, I no longer consider the
> first paragraph of what was GPLv3 section 3 to be desirable.
>
> The basic idea here was the hope that courts would be influenced by a
> general declaration by the licensor that covered works are, in some
> sense fundamental to the license, not 'effective technological
> protection measures'. There is no known history of use of this
> provision by those defending against invocation of anti-circumvention law.
Which means that it has worked. Nobody has been silly enough to
attempt to implement a DRM system with GPLv3 code because they knew
the magical tech+legal combination that makes DRM so effective would
be undermined by this clause. In fact, this made them change their
minds about DRM entirely, so they didn't buy or implement proprietary
DRM either. Ok, probably not. No anecdote about anyone's decisions
being influenced as such, nor any use of the provision as defense, are
good reasons for losing the text.
Fair enough. What I meant there was, if we knew of cases where this
clause was being asserted defensively by GPLv3 licensees, that would
be a good argument for keeping it in.
Much as I believe I said of the anti-Tivoization provisions: if we
knew that these provisions were being used to discourage or render
ineffective lockdown of consumer devices, the argument for deleting
them might be a lot weaker.
Perhaps irrelevant given the above, but I don't understand the
following:
> This strikes me as being an inherently weak provision, but, the less
> weak one assumes it is, the more problematic it becomes from a free
> software perspective, since it approaches something like a field of
> use restriction. That certainly is not what the FSF intended, but that
> lack of intent does not make the discomfort go away.
How could it approach a field of use restriction? If completely
effective, nobody could be persecuted for circumventing a system
implemented with GPLv3 code.
But it does not prevent anyone from
implementing any system they can imagine. I thought
https://www.gnu.org/licenses/gpl-faq.html#DRMProhibited expressed this
very nicely. Is that answer wrong?
The first sentence is certainly correct. I would say the second
sentence is 'hopeful'. The basic problem with this provision is (a)
anti-circumvention law will be invoked not by the GPLv3 licensor,
typically, but by some downstream licensee or third party or public
authority, and (b) unfortunately you can't necessarily cause something
to fall outside the scope of anti-circumvention law merely by saying,
in a license applicable to the technology in question (a license which
actually *allows* creation of technical protection measures) "covered
works are not deemed effective technological protection measures".
That's why I say it's inherently weak. The statute in question doesn't
say, e.g., "in determining whether a protection measure is
'effective', declarations to the contrary in a copyright license shall
be dispositive".
Note, I'm not raising or uncovering a new issue here; this point was
widely noted by several non-FSF persons (both involved in the GPLv3
drafting process and not) in 2006 and 2007.
> The reason for effectively two (or three, depending on how you
look at
> it) anti-anti-circumvention provisions had to do with concerns about
> differences between US and EU approaches to anti-circumvention law.
I did not realize this. I had naively thought the first (now deleted)
provision concerned DRM implemented with the GPLv3 licensed code
(maybe thus my confusion/question above) while the second protected
users of GPLv3 licensed works from systems with those works restricted
by external DRM -- the distributor would be out of compliance they did
not permit circumvention of the external system.
Re-reading the EU and US texts cited in
https://en.wikipedia.org/wiki/Anti-circumvention I take a guess that
the first provision intended to address the EU, and second the US?
How wrong am I?
It was the other way around. The first provision was US-focused, while
the second was (at least when it was initiated) EU-focused. However, I
suppose it's more accurate to say "the original reason" rather than
"the reason" was perceived US/EU law differences. As I recall, the
second one was modified further with an assumption that it would have
general effect (including in the US).
> I
> consider it better to come up with one provision suitable for major
> jurisdictions in which the license is likely to be granted. A
> modification of the second part of what was GPLv3 section 3 is a
> better basis for such a provision.
The diff is at
https://gitorious.org/copyleft-next/copyleft-next/commit/f9922efd0af3e203...
There aren't any textual changes to the second part. I assume the one
provision is forthcoming.
Yes. I don't know when it will be forthcoming: I would have to do some
legal research first.
- Richard