The GNU GPLv3’s Overreaction to the DCMA
The Free and Open Source Software (FOSS) movement believes that the public is best served if it has the ability to access, modify, and redistribute the source code of the software it uses. Source code, as distinguished from object code, is human readable and used by computer programmers to actually write software. In contrast, object code, which comes about after having been compiled from source code, can only be read by computers. The rational for the FOSS movement’s belief that the public should have access to source code and the ability to modify and redistribute it is that the collaboration multiple users will result in a more effective revision process of software and therefore an overall better product.
The motivation for this belief can be further distinguished within the FOSS movement between two camps. On the one hand, there is the Open Source Initiative (OSI) which champions Open Source Software (OSS). On the other, there is the Free Software Foundation (FSF) which champions Free Software (FS). The FSF is driven by normative beliefs and asserts that the public has a moral right to be able to access, modify and redistribute software. See GNU Project – Free Software Foundation (FSF), Overview of the GNU System, http://www.gnu.org/gnu/gnu-history.html. In contrast the OSI seeks to make FOSS more palatable to the business community and therefore stresses the economic benefits of using OSS. See Raymond T. Nimmer, Legal Issues in Open Source and Free Software Distribution, in Critical Issues in Today’s Corporate Environment 7, 17 (Practicing L. Inst. 2006). Therefore these two groups have developed, encouraged the development of, and approved a number of licensing agreements that grants the licensees the ability to copy the software, make derivative works, and distribute these derivative works. Of all the FOSS licensing agreements the FSF’s GNU General Public License version 2.0 (GPL) is the most popular. See Douglas D. McGhee, Free and Open Source Software Licenses: Benefits Risks and Steps Toward Ensuring Compliance, 11 Intell. Prop. & Tech. L. J. 5, 5 (2007). The GPL uses theconcept of “copyleft” to maintain the free (as in freedom) access to software licensed under it. Effectively, copylefted software requires, as a condition of the license to distribute any derivative works created, that the user grant all downstream users the same rights they were. See GNU Project – Free Software Foundation (FSF), What is Copyleft? http://www.gnu.org/copyleft/copyleft.html. Thus, the GPL seeks to prevent the software it covers from being transformed into proprietary software; i.e. software who’s copyright holder only grants license to copy and use the object code.
On June 29, 2007 the FSF released the GPL version 3.0 (GPLv3). One of the reasons for updating the GPL was the FSF’s perception that the Digital Copyright Millennium Act (DCMA) threatened the viability of the FOSS movement. See Clark D. Asay, The General Public License Version 3.0: Making or Breaking the FOSS Movement?, 14 Mich. Telecomm. & Tech. L. Rev. 265, 276 (2008). The DCMA, effectively grants copyright holders protection of their digital rights management (DRM) technology. See 17 U.S.C. § 1201. DRM can be thought of as a key which limits access to a copyrighted digital work such as software. Without the key the software cannot be accessed, or it might not operate properly. Fearing that users might hack their DRMs and thus cause escalations in the technologies that needed to be used digital copyright holders sought aid from Congress which answered in the form of the DCMA. § 1201(a) prohibits the circumvention of technologies that limit access to a digital work, effectively making it illegal to attempt to overcome DRM technologies.
This provision is of great concern to the FSF, especially in light of the practice it calls “Tivoization.” The term Tivoization was coined after TiVo, the maker of the TiVo digital video recorder, utilized software licensed under the GPL in conjunction with DRM technology. If the source code was modified then the DRM technology would not recognize it and the TiVo DVR would not operate properly. See Asay at 276. Tivoization has been decried by Richard Stallman, the founder of the FSF and FS movement, as “treacherous computing” and a restriction on a user’s freedom which has no legitimate purpose. Id. As a result of this development, the FSF has inserted an anti-DRM provision in the GPLv3.
GPLv3 § 3 “Protecting Users’ Legal Rights From Anti-Circumvention Law” provides that no work covered by the GPLv3 may utilize DRM. If a GPLv3 work is conveyed by a user, that user waives their right to forbid circumvention of DRM technologies. Thus the GPLv3 seeks to overcome the DCMA. See GNU Project – Free Software Foundation (FSF), The GNU General Public License, http://www.gnu.org/licenses/gpl.html.
This provision is viewed as controversial, even within the FOSS movement. See Asay at 277. The OSI and many in the FOSS movement, including the creator of the Linux kernel Linus Torvald, have been critical of this provision. Id. In their view, hardware manufactures should be able to limit what types of software, even those licensed under the GPL, that can be used on their products as that version may be the only one they have tested and proven to work. Id. at 277-78. Furthermore, there is concern that such provisions as contained in GPLv3 § 3 unduly extend the reach of copyright law to cover technologies not normally covered by it. Id. at 278. Finally, the OSS movement may be concerned about the public relations disaster such anti-DRM provisions may create. Id. at 279-80. As mentioned previously the OSI seeks to encourage businesses to use FOSS. Such businesses may be less inclined to do so if they perceive FOSS license agreements as limiting their ability to take advantage of § 1201.
But is the GPLv3’s anti-DRM provision truly necessary? I argue that it is not in light of the Federal Circuit’s ruling in Chamberlain v. Skylink, 381 F.3d 1178 (2004). The Chamberlain court feared that an expansive use of § 1201(a) preventing all circumvention would effectively create two regimes. The first regime would involve copyright holders who feared that their rights under § 106, subject to the limitations under the Copyright Act, would be placed in danger due to the technologies used. See Chamberlain 381 F.3d at 1199-1200. These copyright holders would thus use DRM technology to protect against potential infringers. In contrast, the second regime would allow copyright holders to rely on § 1201(a) to limit the public’s access to uses of a copyrighted work that it would normally be allowed to use. See Chamberlain 381 F.3d at 1200. Citing § 1201(c)(1), the court noted that § 1201 was not to “affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title,” and therefore the second regime was unacceptable. Chamberlain 381 F.3d at 1200. Effectively, the court said in Chamberlain that if you don’t have a right to exclude you can’t utilize § 1201 to limit access to the work.
Now let us apply this holding to the GPL. The GPL requires that a user who wishes to redistribute any derivative works they may have created grant the same license to all down stream users that they received. The user has therefore, in effect, waived his right to exclude downstream users from copying, making derivative works, or redistributing those works. The Chamberlain court made the distinction between those who access the copyrighted work for a legitimate purpose and those that do not. 381 F.3d at 1198. It stands to reason under Chamberlain, that because the public has a right to do these things the user cannot deny access to the work, by means of DRM, and if they do they cannot sue for a violation of § 1201(a) if the downstream user seeks to circumvent the DRM measures.
One of Stallman’s primary concerns was that the use of DRM would limit access to GPL covered software and thus make the GPL a farce. See Asay at 277. However, Chamberlain suggests that this is not the case. Therefore, it is unclear that GPLv3 § 3 is necessary, and could potentially prove to be a public relations disaster for the GPLv3.