Subject: Re: DRM-incompatible licenses
From: Seth Johnson <>
Date: Tue, 04 Apr 2006 14:43:03 -0400

"Stephen J. Turnbull" wrote:
> As I understand it, fair use is not a positive right, prohibiting DRM.
> It is a negative right, ie, a limitation on the degree to which the
> copyright owner may use the courts to impose restrictions.  It doesn't
> say that the copyright owner must enable fair use copying, nor what
> the quality of those copies should be.  (Eg, take a screen shot rather
> than copy the PNG, analog rather than digital copies of music, etc.)

Actually, in the U.S. statutes, the author's exclusive rights are
stipulated as being "subject to" the other provisions for first
sale, fair use, etc.

So while the fair use provision is written in such a way as to
look like a loopy sort of exception to copyright, it's actually
the other way around.


> Only that if your unlicensed copy is covered by fair use, he can't sue
> you.  The DMCA doesn't change that, explicitly saying that fair use
> continues to be a defense to allegations of illegal copying, even if
> you must circumvent a technological measure to make the fair use copy.
>     Pedro> "Copyright law has been defined in terms of general
>     Pedro> definitions of infringement in any concrete medium. This
>     Pedro> classic approach focussed such law on whether or not there
>     Pedro> is infringement, rather than focus on particular
>     Pedro> engineering techniques."
> DRM is not a particular engineering technique.  It is any effective
> means to prevent copying.  If you break a lock and copy the documents
> contained in the locked box, you are violating the anti-circumvention
> provisions as far as I can see.  (Well, maybe not, since it does refer
> to "digital".  But I haven't found any language in the DMCA that
> defines "technological measure" to *exclude* locked boxes. :-)
>     Pedro> This confirms what I think. Do you have any evidence to
>     Pedro> support what you just wrote (or are you a lawyer)? :)
> You mean in the following?
>     >> What the license ends up fighting is the use of privacy
>     >> protection, because it can be used to circumvent the intent of
>     >> the license.  In order to limit the severe damage (especially
>     >> to the FSF's reputation) that a blanket prohibition of the use
>     >> of GPLed software in privacy protection would cause, the term
>     >> "DRM" which has a specific meaning in U.S. copyright law is
>     >> used to try to restrict the field of application to commercial
>     >> uses of privacy protection (but without saying that).
> According to the DMCA, *circumvention of copy protection* is *not*
> illegal.  (In a summary document, it is explained this is intended to
> allow fair use copying.)  Circumvention of *access protection* *is*
> illegal.  What is privacy protection but prevention of access?  So the
> DRM provision doesn't help people who wish to copy documents they have
> legal access to anyway, at all!  They're already allowed to
> circumvent!  It only prevents GPLv3-ed code from having the additional
> DMCA-granted power to protect documents that the would-be reader
> doesn't have access to in the first place.
> Untangled, from the user's point of view the anti-DRM provision
> weakens privacy protection, not copy protection.
> >From the hacker's point of view, it does affect both, since
> "manufacturing" or "offering to the public" a circumvention device is
> a crime for both access and copying.  In other words, you can only
> hack the device for yourself, and not give copies to other people.
> (As I understand it, "manufacturing" implies "for sale", so
> "inventing" is not the same as "manufacture".  IANAL, and none of
> Google, Wikipedia, or Wex came up with a specific definition for
> law.)
> To be honest, this is probably the important motivation: to protect
> hackers working on GPLv3'd security code from being charged under the
> DMCA "anti-trafficking" provisions.  So I have to take back the
> comment about "because privacy protection can circumvent the intent of
> the GPL."  I still believe, as argued above, that the anti-DRM
> provision weakens privacy protection more than it weakens copy
> protection.
> And it is not obvious to me that the DMCA prohibits trafficking in
> circumvention devices if the purpose is to allow copying of legal
> copies of free documents that happen to be restricted by DRM, either.
> Of course, you'd risk getting busted for it, and even if you won that
> would be expensive and annoying.
> Of course the inference about the FSF's intention in referring to DRM
> rather than the (apparently) more general "technical means to obstruct
> reading or copying" is speculation; I am not the FSF's lawyer or
> executive.
> And no, I'm not a lawyer at all.  So what?  I'm not giving anybody
> legal advice.
>     >> It may be possible to write this clause to target only those
>     >> uses of privacy protection that the free software movement
>     >> deems unacceptable, but it's not going to be easy, and any
>     >> given wording can easily be frustrated by new legislation or
>     >> court decisions.
>     Pedro> If some new security measures implement -- among other
>     Pedro> things -- restrictions to the user or owner of the
>     Pedro> computer, just have the license consider the whole thing
>     Pedro> illegal.
> No.  As you phrase it, SSH, GPG, and IPSec are disallowed by the
> license (whatever that might mean), because they can be used to
> protect network traffic from the user or owner of the relay hosts.
> It is not easy to get this right.  The FDL, phrased by Eben Moglen,
> who we had better hope is one of the best free software lawyers in the
> business, says "You may not use technical measures to obstruct or
> control the reading or further copying of the copies you make".  This
> means that you may not encrypt copies on your own disk.  You may not
> chmod o-r.  That's nuts, of course, but that's what the English says.
> So the FSF is in the position of denying that its legal document means
> what it clearly says.  Uh-oh.
> And what if somebody with less respect for privacy than the FSF should
> decide to interpret the FDL literally, and sue you for doing chmod o-r
> on their document licensed under the FDL?  See below:
>     Pedro> Can't it also be argued what is acceptable based on the
>     Pedro> spirit and intention of the license? (I know this works
>     Pedro> sometimes for laws...)
> Yes, but *whose* spirit and intention?  For a full discussion, see
> Larry Rosen's book "Open Source Licensing", but the gist of the matter
> is that basically the copyright owner (not the author of the license)
> determines what the license means.  However, if the licensee gets the
> impression from the owner that certain uses are permitted, and relies
> on those permissions, then a court might very well rule in favor of
> the user.
> In other words, courts expect the owner to tell the user up front
> what's permitted, and if the user can show the owner said nothing and
> the words in the license seem to permit it, too bad.  (Again, see
> Rosen's book, this is not a very coherent explanation).  You don't
> want to rely on "spirit and intention", you want precise language in
> the license itself.
> For a concrete example, consider the use of proprietary binary kernel
> modules with the Linux kernel.  Linus Torvalds doesn't like them, but
> he's made it very plain that he doesn't consider them a violation of
> his copyright.  The FSF took strong exception to his statements,
> though, because it undermines their position on the extent of a
> derivative work in software.  I don't recall how that got resolved,
> but the only thing I can find stating this is posts by Torvalds;
> there's no special permission statement making an exception to the GPL
> in the Linux distribution that I can find, just the GPL.
> So AFAIK Torvalds's interpretation applies to Linux, while the FSF's
> applies to the HURD, because that's what the respective copyright
> owners want.  (Larry Rosen takes a completely different position on
> the FSF's claims in his book, but you should read it if you're
> interested.)
> Another useful book is Andrew St. Laurents's "Understanding Open
> Source and Free Software Licensing" from O'Reilly.
> --
> Graduate School of Systems and Information Engineering   University of Tsukuba
>        Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
>         Economics of Information Communication and Computation Systems
>           Experimental Economics, Microeconomic Theory, Game Theory


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