How GPLv3 addresses the EUCD and DMCA

Draft 3 of GPLv3 should be out Real Soon Now, so I’d like to review some of the topics. I couldn’t find a thorough explanation of how GPLv3 will deal with the "anti-circumvention" clauses of the DMCA and it’s EU counterpart, the the EUCD (see Article 6), so here’s my layperson understanding.

These laws harm society in a number of ways. Some general information can be found on FSFE’s EUCD page but here I just want to look at how these laws could cause problems for free software developers and distributors, and what free software licences can do about them.

I see two potential problems:

  1. A copyright holder could publish a work and authorise one free software application to access that work, and if a software developer wrote another application to access that same work, the copyright holder could accuse the second developer of copyright infringement for using an unauthorised piece of software to access the copyrighted work.
  2. A copyright holder could publish a work and publish a free software program that is authorised for accessing that work, but if a software developer modified that free software program, the copyright holder could accuse that software developer of copyright infringement for using software other than the single authorised version.

I hope both cases would be thrown out of court by any judge, but there’s no reasons to leave it to chance or to leave such uncertainty there.

Section 3 of Draft 2 of GPLv3 contains this wording:

3. No Denying Users’ Rights through Technical Measures.

Regardless of any other provision of this License, no permission is given for modes of conveying that deny users that run covered works the full exercise of the legal rights granted by this License.

No covered work constitutes part of an effective technological "protection" measure under section 1201 of Title 17 of the United States Code. When you convey a covered work, you waive any legal power to forbid circumvention of technical measures that include use of the covered work, and you disclaim any intention to limit operation or modification of the work as a means of enforcing the legal rights of third parties against the work’s users.

The meat is in the last paragraph. Sentences one and two seem to address problems one and two, respectively, that I described above.

Some people have wondered if this will work. Some say this is like declaring "this leaf is not cannabis" – but the situations are not analogous. That cannabis leaves are what they are is a fact of nature, but whether or not a software mechanism is an anti-circumvention system, that depends on the intent of the person who created the mechanism. Eben Molgen answered this last June:

I expect that US courts will be instructed on the intention of the licensor to reject the features of DMCA as it applies to GPL software. I expect the United States courts to listen closely to statements of the licensor’s intent, because under US copyright law it is the licensor’s intent which normatively determines the content of licence.

In the typically cuatious words of a lawyer, I guess he’s saying that he can’t predict the future but it looks like it should work.

Another document with information about this the "Opinion on DRM" which was published along with draft 2 of GPLv3:

The rise of free software is accompanied by a rise in the incentives for opponents to find loopholes and ways to exploit our licences. The extra clarifications like these are being added to the licence to protect the right of everyone to modify the software and distribute modified versions. These clarifications make the licence longer, but I think they reduce complexity at the same time because if GPLv3 said nothing about certain issues, then users of the GPL would have to additionally investigate the status of a program that has no explicit statement about that issue.

A complete solution to the EUCD/DMCA involves getting laws changed, and that means either getting involved in lobbying or supporting lobby groups which are representing positions you agree with. Like software patents, GPLv3 can’t make the whole of this problem go away, but it can protect us in some situations, so now is the time to think of when and how GPLv3 can protect us in these and similar situations.

Ciarán O’Riordan,
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