[Committee-d] A signing problem

[Seth David Schoen]

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?

> 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?

> 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.  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.

If a free software developer comes up with a reason for a court to
find secondary liability for someone engaged in a kind of activity
that has never previously been thought to constitute contributory
infringement, that free software developer is enlarging the scope of
copyright.

This is a very important issue in free software activism in general.
It is important not to expand the scope of copyright in the interest
of copyleft enforcement in ways that would imply a diminished right
of free software developers to reverse engineer, interoperate with,
or produce feature-compatible versions of proprietary programs.

-- 
Seth David Schoen <schoen at loyalty.org> | This is a new focus for the security
     http://www.loyalty.org/~schoen/   | community. The actual user of the PC
     http://vitanuova.loyalty.org/     | [...] is the enemy.
                                       |          -- David Aucsmith, IDF 1999