[copyleft-next] Deletion of first part of anti-anti-circumvention provision (was Re: Update 2012-08-02)

Mike Linksvayer ml at gondwanaland.com
Sat Aug 4 19:12:30 UTC 2012


On Sat, Aug 4, 2012 at 8:44 AM, Richard Fontana <fontana at sharpeleven.org> wrote:
> On 08/04/2012 01:39 AM, Mike Linksvayer wrote:
>> while second provision is retained because it
>> specifically concerns whatever legal power licensee might have to
>> forbid circumvention; they can waive such power (but one might still
>> question how pertinent that power is; you must think it is pertinent
>> or would've removed the whole section).
>
> Yes. You can certainly waive your own power (unless law somehow
> prevents such waiver, and it's not obvious that it generally would, so
> it's reasonable to assume you can). The problem is what can you really
> do about others. You can require other distributors in the GPL
> distribution chain to make the same waiver as a condition of the
> copyright license, but the asserter of anti-circumvention power might
> not be in that chain. I would say this problem was understood and well
> discussed when GPLv3 was drafted but it probably wasn't as thoroughly
> examined as it could have been, and perhaps there have been some
> relevant developments in the law since then.
>
> What I don't know, though, is whether if all you're left with is a
> very weak waiver, whether it is worth it to keep in. It's inherent in
> no-further-restrictions, arguably. Maybe it belongs explicitly in that
> section.

I'll be curious to see this develop. You may have noticed that neither
GPLv3-style provision was included, again, in the second draft of CC
4.0 licenses, for similar reasons "that the waiver would likely have
little impact and could be misleading for licensees" from
http://wiki.creativecommons.org/4.0/Technical_protection_measures (I'm
ambivalent at this point, but realize further that the bit of pushing
I've done for consideration of GPLv3-style anti-anti-circumvention has
been muddied by my lack of understanding so far).

> To tie this in to a broader point, or to go off on a tangent:
>
> There's a common theme here in some of the things I'm deleting. If a
> provision is too difficult to practically enforce, or would simply
> lead to substantial confinement of the relevant licensing commons
> (thus frustrating the desired policy impact, arguably), or doesn't
> seem to even be that important to most people who've otherwise found
> GPLv3/AGPLv3 (or GPLv2) to be attractive licenses (which, among other
> things, raises the specter of paternalism), why not just take it out?
>
> If anything useful has come out of the recent mailing list discussions
> it's that Bradley seems to have a very different view of copyleft
> licensing reform from me. Bradley seems to think a GPL-like license
> should do as much as it possibly can (or at least should start out
> that way and only then consider possible pragmatic compromises). This
> is consistent with statements Bradley has made elsewhere that he
> personally thinks of AGPLv3 as a suitable default license and then
> decides whether a "weaker" (in his sense) license might be more
> appropriate.
>
> I accept that it's pointlessly unrealistic to think a GPL-like license
> can solve all the world's software freedom problems, so we should
> prioritize in such a way that we maximize adoption of strong copyleft
> licensing (strong in my sense, not Bradley's sense). In fact,
> strangely, Bradley influenced my views on this in talks he's given on
> GPL enforcement and such. Which means my goals are different from the
> FSF's *stated* goals, since the FSF has said that wide adoption of
> GPLv3/AGPLv3 (or even strong copyleft GNU licenses generally) is not a
> priority.

I missed that non-priority statement. It would seem to be at odds with
the combination of "The Free Software Foundation is working to secure
freedom for computer users by promoting the development and use of
free (as in freedom) software and documentation" and recommendations
to prefer strong copyleft in https://www.fsf.org/about/ and
https://www.gnu.org/licenses/license-recommendations.html and
elsewhere.

> I think you have pointed out that free licenses can be viewed as
> experiments in what regulation of a post-copyright world might look
> like. Some of what GPLv3 tries to do may be better accomplished even
> in the pre-post-copyright world by regulation (for example, perhaps
> what the anti-Tivoization provisions are trying to accomplish are
> really best addressed through reform of consumer protection law or
> other laws and regulations). I recognize that legislative reform may
> be less realistic even than reform achieved indirectly by copyright
> licensing.

I think the two are complementary, mostly. And of the second, there's
a spectrum of mechanisms to pressure or force software freedom,
ranging from pure demand to pure fiat. I sometimes wonder whether,
perhaps because of their visibility and totemic nature to insiders, we
don't over-rely on the protections of copyleft licenses (as opposed to
the permissions, which must be relied on): the "judo moves" we're
impressed by are actually more like security blankets which distract
from advocacy and adoption that makes an impact on the rest of the
world.

If so, then I think the primary benefit of copyleft is its norm
setting and its effect on the most risk averse entities not affected
by norms, and the most effective copyleft is whatever maximizes its
own (and probably other copylefts') uses. Which I'd guess means
maximizing readability and compatibility, and minimizing controversial
features, rather than maximizing the scope and effectiveness of
compliance hooks.

But I don't always think this, could be wrong when I do think it, and
think maximizes scope and effectiveness of compliance hooks is at
least an interesting objective. Ideally, I'd like to see both copyleft
strategies pursued. I suppose additional-restrictions-as-supplements
is one way, but it disadvantages the more-better-hooks strategy. I was
probably thinking along those lines when suggesting an
"arch-copyleft-next".

Mike


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