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Re: The draft Position statement on the GFDL

Raul Miller wrote:

> On Sun, May 02, 2004 at 12:59:51PM -0700, Don Armstrong wrote:

> I think the phrase "technical measures" in the GFDL refers to the concept
> discussed in this article from the WIPO copyright treaty:
>    Contracting Parties shall provide adequate legal protection and
>    effective legal remedies against the circumvention of effective
>    technological measures that are used by authors in connection with the
>    exercise of their rights under this Treaty or the Berne Convention
>    and that restrict acts, in respect of their works, which are not
>    authorized by the authors concerned or permitted by law.
Well, it might be intended to refer to this, but in the article above, it
"techological measures...that are used by authors... that restrict acts...".
"Technological measures" in general is obviously a broad category, since it
is restricted by the two "that" clauses, which explain what sort of
measures they're talking about.

In the GFDL, it says "...technical measures to obstruct or control...[etc]",
which seems to be the only restriction on what sort of technical measures
they're talking about.

> It's not clear to me why other kinds of technology (not associated
> with any sort of right to intellectual property) which prevent use or
> distribution should qualify as "measures".

Well, they are actions which are taken to further a purpose, which is the
approximate meaning of "measures".  If they are taken for reasons entirely
different from preventing reading or copying, perhaps the GFDL clause does
not apply.  Although I'm not sure whether the GFDL clause requires that
these measures prevent reading or copying as their *purpose* or whether
it's sufficient that they do so incidentally.

Anyway, "chmod -r" really has no purpose *other* than to prevent reading or
copying.  This is why it has become the canonical example.  Is it supposed
to be prohibited?

The contrast made by one person was that the GFDL prohibits distribution on
restricted media, period.  The GPL, in contrast, allows it as long as it's
accompanied by distribution on unencumbered media.

Anyway, we'd probably be willing to read most of this more generously if it
didn't apply to private copies, which is the core problem.  :-P

> When a user deletes a file, or ceases to provide power to the computer
> which holds the file, this certainly prevents reading of the file
> instance.  However the purpose of deleting the file or turning off the
> power is not to prevent "unauthorized people" from retaining copies.
> Technological measures, as I understand it, means there are people who
> do not have the right to see copies of the material in question, which
> the measures are designed to prevent.

> Mind you, my thinking might be flawed.  If so, I'd appreciate it if
> someone could spell out for me the relevant legal issues.

> [*] Where the requirement for encryption or control has nothing to do with
> digital rights management.  This gets back to the question of whether or
> not "non-rights management activities" count as "technological measures"
> in the context of copyright.

I would assume that they do count in the context of a license.  A copyright
license can put perfectly arbitrary restrictions on your right to make
copies.  I see no reason to assume that the meaning of "technical measures"
in the GFDL is limited.  (Of course the scope of the clause is limited by
the phrase "to obstruct or control the reading or further copying of the
copies you make or distribute", but that doesn't really help.)  I would
assume, barring legal advice, that "us[ing] technical measures to obstruct
or control" means precisely what it says.

It is possible that this phrasing implies the need for intent to obstruct or
control.  (I'm not sure.)  If so, it still prohibits 'chmod -r'.

>> >    Invariant Sections
>> > 
>> > redistribution of derived works are allowed
>> Redistribution of derived (or modified) works of specific sections are
>> dissallowed. We have long held that licenses which require that
>> specific parts of the functional work be unmodifiable are non-free
>> because they violate DFSG §3.[3]
> It seems to me that it's DFSG §4 which deals with the "unmodifiable
> sections" issue.  DFSG §3 simply requires that derived works be
> redistributable and doesn't address any restrictions on the right to
> redistribute derived copies (such as GNU's restriction where people
> who don't distribute their own modificates to GPLed software under GPL
> compatible terms lose the right to distribute derived works).

No.  There are two issues: the right to create derived works and what
license the derived works may be distributed under.  The GFDL restricts the
right to *create* derived works.

Restrictions on the choice of license for the redistribution of the derived
works are generally allowed, provided they satisfy DFSG 3:
"...and must allow them to be distributed under the same terms as the
license of the original software"
(and DFSG 4, and the rest of the DFSG).

The GFDL does not allow the creation or redistribution of certain derived
works, period, in any form, not even under the same license as the
original.  Namely, works with Invariant Sections removed.

Now, again, some restrictions on creating derived works are generally
considered acceptable.  But required inclusion of arbitrary lumps of text
in a particular manner certainly isn't one of them (even with the
oft-ignored GFDL restriction that they must be 'off topic').

There are none so blind as those who will not see.

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