GPL 3s DRM Provisions Raise Eyebrows

By Peter Galli  |  Posted 2006-01-26

GPL 3s DRM Provisions Raise Eyebrows

The first draft discussion document for the next version of the GNU General Public License has only just been released, but some businesses are already expressing concern about its digital rights management provisions.

Richard Stallman, the founder of the Free Software Foundation and co-author of the first draft discussion document, said at the launch event on Jan. 16 that DRM "is a malicious feature and can never be tolerated, as DRM is fundamentally based on activities that cannot be done with free software. That is its goal and it is in direct opposition to ours. But, with the new GPL, we can now prevent our software from being perverted or corrupted," he said.

Click here to read a one-on-one interview with Richard Stallman from the GPL draft conference at MIT.

While Eben Moglen, the general counsel for the FSF and the co-author of the draft license, acknowledged to eWEEK that there is already unhappiness among some companies with regard to the DRM provisions, he admitted that the new license will not satisfy everyone.

The business community is as big and diverse as the hacker community and will respond in a variety of ways to the DRM and other issues with the license. "These can then be played off one against the other," he said.

"Many of the businesses that are, and will be, concerned about DRM will be concerned precisely because they are subjected to so much coercive pressure from a few big businesses in the world, which pistol whip and humiliate them publicly," Moglen said.

That pressure was reflected back when the FSF attempted to defend itself against the assaults on its freedom by those same businesses, he said, adding that he has "great sympathy" for those businessmen who are caught square in the middle of a community trying to defend its freedom and the businesses that are trying to attack it. "They are caught in the middle, and that is unpleasant," he said.

The DRM provisions are designed to go after companies like TiVo, which uses Linux but collects information on consumers actions. While TiVo complies with GPL 2.0, it may have more difficulty complying with GPLv3s anti-DRM provisions.

Asked if TiVo could avoid using GPL 3.0 when that license is released next year, Moglen said, "Once a GPLd work has been relicensed under GPLv3, although a party having a copy under GPLv2 could continue to distribute it under that license, any further maintenance from upstream would force the license upgrade."

TiVo could avoid using GPL 3.0 even if, say, the Linux kernel were to change licenses, but only by freezing itself at the last version of the kernel that was licensed under GPL 2. "That will prove to be impracticable in almost every real commercial setting," Moglen said.

In a document explaining the reasons for the changes in the GPL, Moglen and Stallman said that DRM is fundamentally at odds with the spirit of the free software movement.

To read the rationale behind the GPL 3.0 draft changes, click here.

"Unfree software implementing DRM technology is simply a prison in which users can be put to deprive them of the rights that the law would otherwise allow them. Our aim is, and must be, the abolition of DRM as a social practice. Anything less than complete victory leaves the freedom of software in grave peril," they said.

Next Page: Leverage against DRM.

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While the ability to oppose DRM by means of free software licenses has been limited, the new license provides developers with some forms of leverage that they can use against DRM. The new provisions essentially direct the courts to interpret the GPL in light of a policy of discouraging and impeding DRM and other technical restrictions on users freedoms and illegal invasions of privacy.

"This provides copyright holders and other GPL licensors with means to take action against activities contrary to users freedom, if governments fail to act. If a covered work is distributed as part of a system for generating or accessing certain data, the effect of this license is to prevent someone from claiming that some other GPLd program that accesses the same data is an illegal circumvention," Moglen and Stallman said.

Many of the Linux and open-source vendors declined to comment publicly about the DRM provisions in GPL 3.0. Christine Martino, vice president of Hewlett-Packards open-source and Linux organization), told eWEEK the company appreciates that the FSF is concerned about DRM generally and about its implications for the ability to modify software.

"The bottom line is that this is a difficult issue for which there is no simple answer for the FSF," Martino said. "We expect to see quite a bit of feedback on this as people work through understanding many possible scenarios that involve interaction of free software with DRM. At the moment, it is too early to know what specific feedback HP might offer."

Asked if there are other lightening rods in the draft license, Moglen said the goal is to do what is in the interest of freedom without putting the cost of freedom on any one particular set of shoulders.

"We would have done the same with the community that needs DRM if only it had done the same with us. It is our view that it was they who began an irrepressible conflict by stating, as a condition of their survival, the need to extinguish the kind of freedom on which we depend.

"If this conflict is not irrepressible, if the condition of their success is not the extinction of our freedom, then we think there is plenty of room for co-existence," he said.

With regard to the conflict that exists between companies like IBM and HP that support free and open-source software, yet continue to grow their patent portfolios, Moglen said there is an ongoing dialogue with them around the increasing understanding within those firms that the patent system is out of control and doing harm.

Linux vendors and distributors like Red Hat and Novell are calling for GPL 3.0 to address the issues of patents and license compatibility. Click here to read more.

"Even the largest patent holders within the information technology industry—think IBM, think HP—have begun to recognize that the system hurts their customers and the community of which they are a part and has simply gone too far," he said. "So what we do is begin building outward from our common understanding about what has gone wrong.

"While we may differ about how thorough a remedy is necessary, we have more than enough common ground now from which to begin that conversation. When we say that putting too much patent risk on the backs of your customers isnt good for you as a business, we are not speaking to a problem they dont understand. We are speaking directly to one they do understand, although we may differ about what to do about it."

Next Page: Compatibility moves are encouraging.

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Simon Phipps, the open-source officer at Sun Microsystems, said he is particularly encouraged to see ideas such as the patent peace concept and the move toward compatibility with other open-source licenses.

While HPs Martino would not comment specifically on the patent provisions in GPL 3.0, saying the company does not have a position on this at the moment, "This is an area we will continue to monitor and assess," she said. "We think there will be a lot of comments on the DRM and patent provisions. As we stated, HP doesnt have positions on these at this time but will be watching closely and commenting as we see fit within the FSF Discussion Group process."

With regard to concerns expressed by some in the community that the discussion process for the draft license could potentially be dominated by the large Linux vendors, Moglen said these worries are unwarranted.

The other concern—that Stallman will unilaterally decide on changes to the GPL—is also unfounded. "These are really complementary concerns. My personal view on this is that the process we have been engineering is one in which all the pressures net to zero," Moglen said.

Co-author Eben Moglen says the GPL rewrite should not be seen as a democracy. Click here to read more.

But that depends, in large measure, on the weight of public participation and the transparency of the process. "The discussion committees on which the corporate representatives sit are only there to discuss what people say. They are not there to determine the outcome or write the license," he said.

Read more here about the discussion process for GPL 3.0.

"I understand the worry, which is justified in the sense that one would want a process that would resist those kinds of pressures," Moglen said. "We have shown, by showing the design of our process and sticking to it, that we mean to resist those kinds of pressures. Any fair-minded observer looking at what we have done around the openness and transparency of the process will agree that these concerns have already been addressed."

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