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Re: GNU FDL 1.2 draft comment summary posted, and RFD

On Thu, Jun 13, 2002 at 03:20:28PM -0700, Walter Landry wrote:
> > I would disagree.
> I was just noting that the small scale exemption would cover this kind
> of activity as well.

You'll note that after thinking about it more, I withdrew my
disagreement.  The only ways I can think of to avoid an exception clause
are worse than the disease:

1) lose the copyleft (i.e., you can intermix your proprietary stuff with
a DFCLed work and not have to give people permission to your proprietary
2) introduce language about intentionality into the license

If we do 1), we might as well give up and tell people to use the MIT
license for their works.  2) is a legal quagmire of colossal
proportions.  It's insanely difficult to prove intent in court, which is
why the MPAA and RIAA paid off Congress to write a presumption of guilt
into the DMCA.  (Well, actually, the MPAA, RIAA, and friends wrote the
law, the members of Congress just voted "yea" when they were told to.)

> > There is a difference.  The intended application of the DFCL is for
> > works whose primary value lies in direct perception by a human being.
> > Software's value is different, both in source and object form.
> Branden, I thought you would be the last person in the world that I
> would have to remind that code is speech.  Being able to modify the
> source and construct new output is important for both.  However, I
> think that there is something at the end of this email that may
> appease you.

I think you are misinterpreting my remarks.  I continue to believe that
code is speech, and I continue to believe that we need a copyleft for
general-purpose works that Promote the Progress of Science and the
Useful Arts (and works that don't, but which the Congress and U.S.
Registrar of Copyrights have been bamboozled into granting monopoly
rights for).

> I know that it is arbitrary.  If we find that there is a need to
> change this arbitrary limit, then we can put out a new license.  I
> think 100 copies in 30 days is a fine place to start, but I'm not
> attached to that arbitrary number.
> I only proposed the number because there seems to be some desire to
> legitimize small scale copying.  I don't think it opens up the same
> loopholes that occur with programs.

I'm going to have mull this over for a while longer.  (That means, "I'm
waiting to see more convincing arguments.")

> I think I'm recognizing reality here.  You were worried about
> distributing to schoolkids in Ghana.  I'm showing that it isn't a
> problem.  You don't have to like it, it is just the way things are.

I don't want to see the DFCL used as a weapon against people who haven't
done anything ethically illegitimate.

Making the 101st copy of something in a 30-day period a copyright
license violation when the 100th copy is just fine seems to tempt that
sort of abuse.

> > I guess what this is drifting towards is that ever-misunderstood
> > "operating system" clause of the GPL:
> > 
> > 	However, as a special exception, the source code distributed
> > 	need not include anything that is normally distributed (in
> > 	either source or binary form) with the major components
> > 	(compiler, kernel, and so on) of the operating system on which
> > 	the executable runs, unless that component itself accompanies
> > 	the executable.
> How about rewording it to say "operating system or hardware".

It needs to be worded more broadly even than that.  It's basically
anything on the chain of technology from distributor to consumer.  The
information could be transmitted via all kinds of devices, encapsulated
into all sorts of protocols, carried over all kinds of media, etc.  Any
one of these could have some sort of crazy intellectual property
restriction on it that isn't the fault of the distributor or consumer.
This exception needs to be worded so that it is completely neutral
regarding the means via which the content is transmitted or transported.

The tricky bit is that sometimes the distributor *is* at fault in
constructing the intellectual property restrictions that have been
imposed on the network technologies.  So we need to prevent the Big
Media company from taking DFCL-licensed content (like, say, a movie)
proprietary by putting cripplebits on it and then claiming "oh, we
didn't do that, our wholly owned cable network operator subsidiary did
that".  You then go to the subsidiary and they say "oh, *we* didn't have
anything to do with that, you bought that Pay-per-View movie from our
parent corporation and they sent it to you by your request.  We're just
a common carrier."

Media colossi do this all the time.  It's a very, very old game.  Most of
the time it isn't even as clear-cut as a parent/subidiary thing.
Instead it's a secret contract between two unrelated -- or tangentially
related -- companies, for which they claim trade secret protection and
compel NDAs from all participants.  Then 10 or 20 years later when the
evidence of collusion is starting a federal judge in the face, he issues
a subpoena and, whoops, what document?  Sorry, it must have been
destroyed under the document retention policy that was written
yesterday^W^Wdated well before that subpoena was issued.

No, we cannot count on the courts to protect our works.

> That should take care of the printer fonts and hardware equalization.
> We might have to clarify what it means to say when content "runs" on
> hardware, but if that's the only problem then we're basically done.

I think it's a trickier problem than you do.  :)

G. Branden Robinson                |    To Republicans, limited government
Debian GNU/Linux                   |    means not assisting people they
branden@debian.org                 |    would sooner see shoveled into mass
http://people.debian.org/~branden/ |    graves.          -- Kenneth R. Kahn

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