Date: 15 Apr 2002 00:15:37 -0700 From: swear@blarg.net (Gary W. Swearingen) To: freebsd-chat@freebsd.org Cc: Terry Lambert <tlambert2@mindspring.com> Subject: DMCA, unlicensed downloading, and imact on open software Message-ID: <5xsn5xwhye.n5x@localhost.localdomain>
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This exchange (from http://docs.freebsd.org/cgi/mid.cgi?db=irt&id=3CAB69B8.2817604E@mindspring.com) recently appeared here: > > Are you aware that most users of most open source software (specifically > > BSD-licensed software) need not (and seldom do) agree to the terms of > > the licenses (including the disclaimers) to legally use the software > > (as long as they don't republish it), yet few of the lawyers who've > > looked at open source licenses have raised this as a risk. > > The license in the BSD case specifically requires agreement > for use. The GPL doesn't require full compliance for use, as > partial compliance is permissable, as long as there is no > distribution. > > In either case, however, you are in violation of the DMCA, if > you download the code, without agreeing to the license. (Only the last paragraph is really relevant to the subject of this message, so most of the above is just context which I'll ignore, except to note my disagreement with the first sentence of the reply with respect to the use of "running" an owned copy of the software.) I spent two hours today skimming the DMCA (if it's at http://www.loc.gov/copyright/legislation/hr2281.pdf as claimed by Jon Katz) for relevant material and reading interesting material. I saw nothing of even glancing relevance to the downloading of code without prior agreement to a license, unless it involved "circumventing a technological measure that effectively controls access to a work" and maybe a few similar unusual cases not relevant to the open source software being discussed. The act is gruesomely detailed, but reasonably well organized, so that I'm confident that the DMCA does not prohibit the downloading of open source software without being licensed. The most interesting/suprising thing I saw was in the section "1202. Integrity of copyright management information" which prohibits the removal or alteration of: the title/ID, info about author, info about copyrights owner, terms and conditions, and references to such information. The implication is that our licenses have effectively gotten significantly longer, even for code licensed years ago. :-( This new law is likely to be widely violated if common practices in the open source world are continued. Publishers of software should in the future be kind to users by being careful about not including lots of unimportant information which nonetheless qualifies as "copyright management information" and maybe waiving some requirements in the license (if that makes legal sense). I suspect that the BSD and other licenses' requirements regarding what must be kept with the software may not be interpreted as being exclusive of other requirements of law, and probably should be rewritten to explicitly waive some requirements of the DMCA. P.S. Some day maybe I'll try to determine if the seemingly erroneous statement quoted above could be made true by replacing "DMCA" with "UCITA" (which so far has only been made law in Virginia, AFAIK). To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
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