FOLLOWING our screenshots from yesterday we received an interesting piece of feedback from a reader. She sought to highlight something to us. As a decades-long DMCA expert, she decided to look into DMCA exemptions submissions from the Software Freedom Conservancy (SFC). This post outlines her findings.
"As an DMCA expert, she decided to look into DMCA exemptions submissions from the Software Freedom Conservancy (SFC).""Just thought I'd mention, wow, not only is the language questionable, the proposed exemption seems self-serving to this org, and there's a typo!!! This is a very interesting proposal as opposing this may seem to not be in line with community. However, giving orgs like SFC an exemption to police software is rather chilling."
To quote: "A proposed new exemption for circumvention of technological protetion [sic] measures on computer programs for the purpose of: (a) investigating potential copyright infringement of the computer programs; and (b) making lawful use of computer programs (e.g. copying, modifying, redistributing, and updating free and open source software (FOSS))."
"While we would like to keep our free or open software free and open," our source explained, "in the past few decades, any legal action related to a violation of the GPL or other license has really not been positive. Are we expecting the Copyright Office to approve an exemption to allow a wild wild west-style policing of programs without due process or judicial record keeping?
"Take for example the VMware "battle". In fact, the SFC or Karen [Sandler of SFC] discussed how she was informed of the potential infringement. According to Karen herself, a letter was sent to VMware. She told a group of us, the VMware lawyer laughingly stated something like, "What are you going to do about it!"
"I guess he was right.
"It's important to understand that the SFC of 2020 is not the same SFC we saw in 2010.""We would hope others would respect our license(s), as we really should respect their choices also. Do you know of an org with the teeth to honestly pursue an actual infringement?
"That being said, this proposed exemption does not respect those who choose to copyright. While I am not a proponent of copyrighted works, we still need to respect the choices of others.
"Also, I recall in past copyright cases, judges have opened a portion of code relevant to the proceedings with regard to accusations of infringement - as part of the process, but did not open the entire codebase of a copyrighted work. The portion open was publicly noted during the case and there was record-keeping."
As a reminder, there's no doubt VMWare violated the GPL because insiders say so. Not only that; it was all along deliberate and done partly by people from Microsoft (there was a Microsoft influx at VMware, including the top roles).
"As a developer," said our source, "I understand if someone were to take open code and close this (a violation of our terms/license), that is not in line with our intentions. However, bypassing technological measures protecting code for simple discovery could very well open a Pandora's box of issues including viewing copyrighted code not in violation of a license. This seems like policing.
"There is an issue, that could be addressed or proposed in a more specific and determined manner, but not this broadly drafted exemption proposal by an organization sponsored by Microsoft... and the submission has a typo..."
It's important to undersand that the SFC of 2020 is not the same SFC we saw in 2010. Things change over time; a decade is a very long time. ⬆
