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\section*{Opinion on Digital Restrictions Management}


Technological measures to defeat users' rights, and the response to
those measures embodied in Draft 1, have been a particularly active
subject of discussion and debate in the first round of public
deliberation.

These measures --- often described by such Orwellian phrases as
``digital rights management,'' which actually means limitation or
outright destruction of users' legal rights, or ``trusted computing,''
which actually means selling people computers they cannot trust ---
are alike in one basic respect.  They all employ technical means to
turn the system of copyright law, where the powers of the copyright
holder are limited exceptions to general freedom, into a prison, where
everything not specifically permitted is utterly forbidden, and
indeed, if the full extent of their ambition is realized, would be
technically impossible.  This system of ``para-copyright'' has been
created since the adoption of GPLv2, through legislation in the United
States, the European Union, and elsewhere that makes it a serious
civil or even criminal offense to escape from these restrictions, even
where the purpose in doing so is to restore the users' legal rights
that the technology wrongfully prevents them from exercising.

As a digital rights organization, we would not be following our
mission if we did not oppose these injustices.  But the reason our
license must respond to these practices at all is the result of a
remarkable irony. Those who wish to impose DRM on the public would
like to do so by using software covered by the GPL, a license that is
intended to preserve the very freedom that they seek to crush.  They
are not satisfied merely with publishing programs having limited
capability, which free software permits. They seek to go further, to
prevent the user from removing those limits, turning Freedom 1, the
freedom to modify, into a sham.

GPLv2 did not address the use of technical measures to take back the
rights that the GPL granted, because such measures did not exist in
1991, and would have been irrelevant to the forms in which software
was then delivered to users.  But GPLv3 must address these issues:
free software is ever more widely embedded in devices that impose
technical limitations on the user's freedom to change it.

These unjust measures must not be confused with legitimate
applications that give users control, as by enabling them to choose
higher levels of system or data security within their networks, or by
allowing them to protect the security of their communications using
keys they can generate or copy to other devices for sending or
receiving messages.  These technologies present no obstacles to the
freedom of free software. The user is presented with choices, and
figuratively as well as literally retains all the keys to the digital
home.

By contrast, technical restrictions that allow other parties to
control the user have no legitimate social purpose.  In existing
applications where the user is not afforded the same degree of real
power to modify the free software in his system that vendors or
distributors have retained, or have conveyed to third parties, the
software has been delivered in a fashion that violates the spirit of
the GPL, regardless of whether it complies with the letter of the
license. The freedoms the GPL grants have actually been withdrawn by
technical means.  It may even be a crime for the user to modify that
free software to escape from those restrictions and regain control
over what is still, at least nominally, his own system.

To highlight the essential issue of preserving Freedom 1 as a real,
practical freedom, we have rewritten the relevant sections of the
license.  In section 1, we have tried to limit as precisely as
possible the situation in which an encryption or signing key is part
of the Corresponding Source Code of a GPL'd work.  Where someone is
provided a GPL'd work, he must receive the whole of the power to use
and modify the work that was available to preceding licensors whose
permissions he automatically receives.  If a key would be necessary to
install a fully functional version of the GPL'd work from source code,
the user who receives the binary must receive the key along with the
source.  The requirement of full functionality, which we have
illustrated with examples, is no more optional than it would be if
GPL'd software were redistributed with an additional license
condition, rather than a technical limitation, on the uses to which
modified versions could be put.\footnote{There is a clear distinction
between this situation and the situation of authenticated modules or
plug-ins distributed as part of a multi-component software system, so
that instances of the software can verify for the user the integrity
of the collection.  So long as the decision about whether to run a
modified version is the user's decision, not controlled by a preceding
licensor or a third party, the vendor's authentication key would also
not qualify as part of the Corresponding Source under the language we
have adopted for Draft 2.}

In section 3, which has been retitled as well as redrafted, we have
specifically stated the rule, previously implicit, that modes of
distribution that establish limitations on use or modification that
are inconsistent with the terms of the license are not permitted by
the license.  In addition, we have added disclaimers, based on advice
of counsel from nations that have enacted para-copyright provisions
akin to the Digital Millennium Copyright Act in the US or pursuant to
the European Union Copyright Directive.  We believe these disclaimers
by each licensor of any intention to use GPL'd software to stringently
control access to other copyrighted works should practically prevent
any private or public parties from invoking DMCA-like laws against
users who escape technical restriction measures implemented by GPL'd
software.

We believe that these provisions, taken together, are a minimalist
set of terms sufficient to protect the free software community against
the threat of invasive para-copyright.  

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