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Wednesday, May 23, 2007


Some Randomish Thoughts on draft 3 of GPL version 3

[This is a guest post, written by Brendan Scott, principal of Open Source Law, an ICT legal practice with a special focus on open source and customer copyright. Email: -- Catherine]

In March 2007, the Free Software Foundation (FSF) released the third draft version three of its General Public License [sic] (the “GPL”). There will be another “last call draft” prior to the licence text being settled. A final draft is scheduled for July 2007. The window for comments on this draft closes (on my calculation) on 27 May (US time) – so if you are interested in commenting now is your chance.

This version updates the previous GPL v2, which dates from 1991. To put this in context in 1991 the world did not have: Windows 95 or any later version (Windows 3.0 was released in 1990); the Internet (science departments in universities did); the World Wide Web; peer to peer file sharing; CD or DVD writers; Google or broadband. The technology landscape has changed substantially since 1991. In addition, we didn't have the TRIPS Agreement, the US did not have the DMCA, and Australia did not have the Australia-US Free Trade Agreement. Not only has the technology changed, the law itself has changed since the licence was last updated. GPL v3 is intended to update the licence to address some of these changes.

The wording of GPLv3 is determined by the FSF in consultation with the broader free software community. The FSF has engaged the Software Freedom Law Centre and, through them, other lawyers, to assist in the drafting (disclosure: the SFLC engaged me in relation to some aspects of GPL v3). The FSF has a public website through which anyone can provide comments. The FSF also maintains a number of committees who have reviewed and commented on the drafts. While difficult to prove, I hazard it would be fair to say that GPL v3 has been subject to wider public input than any other licence in the history of the world.

The main aims of the new draft are fundamentally the same as those of GPL v2. That is, to protect users' freedom (“Our primary concern remains, as it has been from the beginning, to give users freedom that they can rely on” - from original process definition document). This draft has attempted to be pragmatic while being consistent with this aim. This emphasis on practicality can be seen in, for example, the limiting of some obligations to “User Products” – that is, the obligations only apply in circumstances where the drafters expect that there will be an inequality of bargaining power between the supplier and the acquirer.

Some of the issues that GPL v3 addresses include “Tivo-isation”, where a device manufacturer locks down a device so that, while the user has the theoretical freedom to modify the device, they do not have the practical ability to; TPM/anti-circumvention legislation, that is, that free software should not be suborned to defeat others' freedom; software patents; and internationalisation.

The final issue to be addressed by GPL v3, and the reason this draft has been delayed, is the use of software patents to undermine free software. In November of 2006, Novell and Microsoft announced a deal under which both Microsoft and Novell agreed not to sue each other's users for patent infringement. The FSF announced it would be extending the drafting deadline to specifically address this patent agreement. The overarching scenario is set out by Eben Moglen in a talk he gave at the recent Red Hat Summit (references below).

The GPL v3 has harnessed the tendency (at least prior to the decision of the High Court in Stevens v Sony) of the courts to give overly expansive readings to the scope of copyright law. GPL v3 is drafted to implicitly adapt to differing interpretations as to the scope of the law. The new terms it introduces (“propagate” and “convey”) now attempt to cover the field of rights and do so in a way which is jurisdiction neutral (in my view, some term better than “propagate” could probably have been found). It is on these expansive readings (eg of the authorisation right) which will permit GPL v 3 to have a broad reach.

By and large draft 3 of GPL v 3 has been well received, with many former critics warming (or, at least not objecting) to the revised wording. While there is some criticism of the text, I have not noticed any of substance against this draft to date. That said, they have failed to rectify my pet annoyance with the licence – each of its paragraphs should be numbered.


Moglen video:
Transcript (apparently) here:


Tuesday, May 22, 2007


Perpetual Copyright

There are certain issues in society that come up time and time again, often without any real resolution. In the real world, these issues include the death penalty, abortion, and whether the reality television show Big Brother is any good this season. In copyright, one of the major issues that comes up time and time again is perpetual copyright.

Mark Helprin, an American author, has published an opinion piece in the New York Times about why perpetual copyright is worthy of greater consideration. See it here. To me, Melville Nimmer in his 1970 article, "Does Copyright Abridge the First Amendment Guarantees of Free Speech and the Press", really encapsulated the issue of perpetual copyright when he stated, "If I may own Blackacre in perpetuity, why not also Black Beauty?" Helprin concludes that "Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw."

Obviously, here at the House of Commons we are against further term extension and perpetual copyright, because both are not only seriously detrimental to the public domain but create further problems, including that of orphan works. As part of my thesis work at the moment I'm actually looking at the permissibility of perpetual copyright in Australia and whether it is constitutional - but that is a post for another day!

Hat Tip: Freedom to Differ.


Thursday, May 17, 2007


Viacom vs. Google, YouTube, Part Deux

You may have seen on blogs and online news forums lately that Youtube released their defence in the Viacom litigation. Dr Matthew Rimmer presents a fantastic overview of the current state of play in this op-ed piece.

A copy of the response from YouTube/Google, filed at the District Court is located here.

Viacom claims that "YouTube has deliberately chosen not to take reasonable precautions to deter the rampant infringement on its site" (see op-ed piece above). Interestingly, on the other side of the coin, 100's of clips from The Chaser's War on Everything were removed from YouTube after a 15 year old boy (claiming to represent the copyright owners) sent a fake takedown notice (read more here and here). Evidently Viacom should save money on lawyers and start investing in an army of high school students.

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Pia Waugh on "How Open is FLOSS?"

House of Commons friend and open-source guru Pia Waugh has a very interesting post on her blog, titled, "Openness- How Open Is FLOSS?". Pia asks some very good questions about the "openness" of FLOSS, leading to the creation of the "5 Foundations of 'Open'" by Pia and her husband, Jeff Waugh. For anyone interested in FLOSS this is a great post to read and it's also worth having a look at the comments section, where there's some great analysis of these types of issues too.

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Wednesday, May 16, 2007


That Decryption Key and Copyright Law in Australia

Here at the House of Commons, we know that there is a certain decryption key doing the rounds of blogs, but we have not joined the blogger masses in actually posting this to our site. While some of you might disagree with our decision not to publish this code, an article in the Sydney Morning Herald a few days ago is a strong reminder of why, in Australia, now isn't a good time to be doing silly things over copyright law.

In the article, penned by Dylan Bushell-Embling, House of Commons friend Dr. Matthew Rimmer points out that while the chance of being prosecuted for posting the key is "slight", it is still illegal under Australian copyright law given the new provisions that were implemented under the Australia-United States Free Trade Agreement and last year's Copyright Amendment Act. Read more here.

The situation of Hew Griffiths is noted in the SMH article, and perhaps Australian bloggers should be even more careful regarding any actions that might possibly infringe copyright law given Griffiths's current position. My housemate Abi blogged about Hew Griffiths back in February, where in the blogpost title the question was asked, "The David Hicks of the Copyright World?" (See that post here). Griffiths was extradited to America for breaches of copyright law and will be sentenced for these copyright crimes on June 22. Griffiths faces 10 years in prison plus the possibility of a very hefty fine.

A few months ago my housemate Abi posted an xkcd cartoon featuring the immortal words, "Sometimes I just can't get outraged over copyright law" (see that post and cartoon here). I find that's particularly the case when there's something in copyright law that's particularly outrageous, and the current climate (as we will discuss in other posts later this week) seems to fall into that category.


Tuesday, May 15, 2007


Michael Fraser Resigns from CAL

In general copyright news, it was announced yesterday that Michael Fraser has resigned from his post as Chief Executive Officer of Copyright Agency Limited (CAL), one of Australia's major copyright collecting societies. Jim Williams has been named as CAL's acting CEO. According to the news release, CAL has been responsible for distributing about $500 million in copyright fees to its members.

One of the areas that the Unlocking IP project is aiming to focus on is the interaction of copyright collecting societies and commons, and it will be interesting to see who takes up this new role in the long term and what impact this has on CAL, copyright law and the commons in Australia.


Thursday, May 10, 2007


New Guides from the OAK Law Project

The OAK Law Project, based at the Queensland University of Technology, has followed up its thought-provoking first OAK Law report with two new guides focusing on digital copyright issues.

The first, ‘A Guide to Developing Open Access Through Your Digital Repository’, is aimed at helping users understand the issues in developing and building open access digital repositories.

The second hits quite close to home for both myself and my fellow housemate Ben. Titled 'Copyright Guide for Research Students: What you need to know about copyright before depositing your electronic thesis in an online repository', its aim is to assist research students in understanding their copyright rights, obligations and responsibilities when adding their theses to digital respositories.

Both guides are licensed under Creative Commons Australia licences. I'm thrilled at the release of these reports. Even as an individual whose thesis focuses on aspects of copyright law, there are so many copyright questions that arise in relation to your thesis, publishing, digital repositories etc. that it's hard to keep track of them all!

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