[Committee-d] A signing problem

[David Turner]

On Thu, 2006-03-30 at 21:04 -0800, Seth David Schoen wrote:
> David Turner writes:
> 
> > It seems to me that if someone signs an application for use in a DRM
> > system, even if they do not distribute the application, there is a
> > strong contributory infringement or inducement claim against them.  So,
> > that handles some of your cases.  
> 
> Apart from the question about whether contributory infringement is or
> should be applicable to this situation, I wonder about the significance
> of "for use in".  The GPLv3 draft refers to the recommended or principal
> context of use, but I'm not sure how clear that is.
>
> Furthermore, what is the nature of the copyright infringment that
> someone like Deborah is allegedly contributing to?

Making the GPL software part of a DRM system in violation of section 3;
contributing to the non-provision of source code as defined in section
1.

> > In cases where authors' signatures under the GPL are perverted for use
> > in DRM (Yoyodyne), I think there is still a potential secondary
> > liability claim for those who create the DRM system.  Further, as you
> > note, without some sort of agreement with the signer, this is vulnerable
> > to an attack whereby the signer signs others' applications.  
>
> Can you elaborate a bit on this secondary liability theory?

V3 says that GPL software can't be part of a DRM system.  This is a bit
complicated, I'll admit - after all, the GPL software itself clearly
doesn't implement DRM.  But the function of the system as a whole is to
limit users (otherwise, we wouldn't be discussing it).  Creating such a
system is necessarily contributory infringement, since the system itself
is infringing.

I am aware that there is some hand-waving in the middle of that.  I'm
not bothered by a little hand-waving, because the whole contributory
infringement regime is about hand-waving.  

> > I also just noticed an objection to your comments at the meeting that
> > this reading constitutes an expansion of copyright law.  In my view, it
> > does not: FSF opposes all expansions of copyright law -- we filed amici
> > in Eldred and in Grokster on the side of less restrictive copyright
> > laws.  But if copyright laws are expanded, the GPL sometimes expands
> > with them.  This doesn't affect our commitment to overturning these bad
> > laws and rulings.  Copyleft itself is a reaction against copyright
> > overreach.
> 
> Secondary liability in copyright law is a judge-made doctrine, not
> a statutory doctrine. 

But statutes have since recognized it .

>  The scope of secondary liability therefore
> depends on what cases plaintiff bring and what theories of secondary
> liability they are able to persuade courts to adopt.  This is why
> there is so much excitement about the particular technical details
> of new secondary liability theories.  If the plaintiffs prevail under
> a novel secondary liability theory, they have made new law.

We haven't yet had to go to court to enforce the GPL.  This doesn't mean
that we never will, but it's not likely any time soon, because violators
quickly realize that they are outgunned. 

Our likely strategy when we do go to cout will be not to ask for an
expansion of theories of secondary liability.  That would be contrary to
our larger goals.

But we think our theories fall within existing precedents, without the
need to make new law.