FSF Bulletin - Issue No.2 - June 2003 - Free Software Foundation

Table of Contents

• From the Executive Director
• The State Super-DMCA Fight
• Free Software Matters: Free Software and the Broadcast Media
• FSF Notes
• The GPL Compliance Program
• FSF Corporate Patron Program
• How to Donate to FSF

From the Executive Director

Last issue, I wrote about the excitement of Eldred v. Ashcroft, a Supreme Court case, in which we filed an amicus brief, that was poised to decide the future of the commons and the extent and limits of copyright law. I am sad to report that despite Professor Lessig's and Moglen's arduous and valiant efforts, the Court decided that Disney matters more than the freedom of the public. This battle rages on, and we are now sure that the cause of freedom faces an uphill battle with the federal government. In this issue, you'll read about possible FCC action that will serve to regulate the future of Free Software.

Meanwhile, matters of software freedom in our community remain on our minds. We have this year already opened dozens of confirmed GPL violation cases reported to us from the community; we continue diligently in our enforcement efforts. The cost of these efforts increases each quarter. Since nearly all of the resources of the Compliance Lab are used to bring companies into compliance, we have begun to ask corporations, through our GPL Compliance and Corporate Patron Programs, to fund this activity.

Since last summer, GNU Press has shipped nearly 2,500 copies of RMS' book, Free Software, Free Society around the world. That title is now our top-selling book, and we are excited that we have been able to educate the world about software freedom through our press activity.

Finally, we are ever vigilant in our efforts to fight co-opting of the Free Software Movement. We see a rising popularity of proprietary software in Free Software environments. Our goal remains to build a world where all published software is Free Software. In particular, we have put some additional resources into savannah.gnu.org. It is not only ironic but lamentable that the primary site used for Free Software development, sourceforge.net, runs mostly proprietary software. Our hope is to provide more development resources for the community that allow freedom to thrive. Your support is essential to that endeavor.

The State Super-DMCA Fight

The original MPAA model bill (introduced more-or-less without change in Massachusetts and Texas) prohibits receiving (or doing almost anything else with) communication services without the express consent of the communication service provider. And just about everything counts as a communication service. This means that you can't use a radio or television without permission from the broadcasters. Nobody is going to tell you that you can't watch TV, but they might tell you that you can't record it, a right the US Supreme Court affirmed in 1984. They might tell you that you can't use your Free Software PVR to pause it while you answer the phone. The Motion Picture Association of America, primarily through its Copyright Protection Working Group, has already said that it wants to limit these sorts of freedoms.

Although I'm too young to remember it, I'm told that people used to be required to rent phones from the phone company. People would get in trouble for using third party phones, and had to pay for each extension. If TV and radio broadcasters have their way, you may have to rent your radio, TV, and VCR from them, or only use "authorized" equipment. And this equipment won't have a record button.

Many of these bills also prohibit anonymous communication, which is a constitutional right. Abuse survivors, human rights workers, and whistleblowers depend on anonymization technology like Mixminion (a Free Software program) to communicate securely. Mixminion's developers have been actively opposing the Massachusetts bill.

In March, the Massachusetts super-DMCA, HB 2743, had a public hearing before the joint committee for Criminal Justice. I organized cryptographers to oppose the bill, and many others came down on their own. In all, twenty people testified against the bill. Only one person, a lobbyist from the MPAA, testified in support. The bill is now effectively dead. In Colorado, activists convinced the governor to veto the bill. In Oregon, letters to the bill's sponsor convinced him to withdraw it.

The battles in other states have been much harder. In Tennessee, I helped organize various GNU/Linux user groups to oppose SB 213 and HB 457. Activists there have now formed the Tennessee Digital Freedom Network (TNDF). TNDF has shown up at many hearings only to have them deferred. All rules have been suspended in the Tennessee legislature now, so bills can be debated with little warning. Many members of TNDF have to take off work or school on short notice. Despite these heroic efforts, the bills have made it out of the House and Senate Judiciary committees, and on to still more committees. The fight continues.

The MPAA and cable industries have fought hard to pass these bills. In Texas, normal rules were suspended, and on a few hours notice, activists had to show up at the state house, only to wait for seven hours. The bill was finally discussed after midnight. In Tennessee, every time a company, university, or consortium was recruited to oppose the bill, a special exception was proposed to pacify them, while not helping consumers at all.

You can help fight these bills. First, check out whether a bill like this has been introduced in your state. Professor Ed Felten maintains a list at freedom-to-tinker.com/superdmca.html. If your state isn't listed there, check the legislature's web site to make sure it hasn't been introduced since Felten's site has been updated. If there is a bill, go to any public hearings. Bring friends from your local digital freedom group, GNU/Linux users group, or university. Be prepared to answer questions about the details of the bill, but plan to speak for only a few minutes. Don't read from written text -- you can usually simply submit a written statement, which the legislators can read at leisure.

Preemptive activism is useful too. Even if there's no bill in your state, you can set up an appointment with your state senator or representative. The MPAA has vowed to introduce the bill in all fifty states, so your legislators will see the bill eventually.

When we first started fighting the super-DMCA laws, they looked unstoppable. The MPAA and cable industry groups have more money than all of the digital freedom groups put together. They can fly in consultants to public hearings in every state. But legislators have shown that they can tell paid lobbyists from genuinely concerned citizens. Your views can be heard.

Free Software Matters: Free Software and the Broadcast Media

Just as free software has been a particularly scary subject for the music and film industries in the past several years, threatening their control over their content, it is about to become excessively frightening to their television and radio lordships as well.

Here in the United States we are awaiting rule-making by the Federal Communications Commission concerning the possibility of copy protection for digital television content. In 1996, Congress legislated a ten-year plan for the conversion of the US broadcasting system to a digital TV standard. Every owner of an existing analog television station was given, at no cost, an additional place on the spectrum for a second, digital broadcast operation. When, in 2006, every station in the US is supposed to be fully operational in digital broadcast, the operators are supposed to return to the public their original analog television spectrum locations.

But, although many broadcasters have made the expensive investments in the digital broadcast chain, from the cameras through the studio equipment to the transmitters, Americans have shown a predictable unwillingness to replace all their inexpensive TV sets with new digital sets that cost on the average ten times as much. Their reluctance has been understandable in part because Hollywood has not made available all the supposedly smashing dramatic and sexy content that was supposed to make watching digital television such a wonderful experience.

As usual, the reason has been concern from the content moguls that their digital content would leak out into the world in the form of perfect copies for peer-to-peer sharing. A long round of inter-industry negotiations last year concluded with a proposal for a "broadcast flag" in digital content, which all hardware that handles digital video is supposed to recognize, and treat as an instruction not to permit copying of the attached content.

Having reached this supposedly "consensus" (largely by ignoring the objections of consumers, librarians, and other representatives of the users of video content and the general public), the content industries and the broadcasters have lobbied the Federal Communications Commission to make administrative rules requiring manufacturers of consumer TV equipment (which in this context means everything from digital tuners, digital video recorders, and even digital television displays themselves) to treat as uncopyable all data streams with the "broadcast flag" turned on.

Enter, as so often, free software. After all, digital TV is just a bitstream that a general purpose computer equipped with an antenna can take out of the air and decode. One can write for oneself a program that will perform that task, and which will do so without paying any special attention to the "broadcast flag". Such a program is GNU Radio, a development project of the Free Software Foundation. GNU Radio can already receive and decode US-standard digital television signals. Thus, as the FCC considers the order for special-interest regulation handed to it by the Masters of MegaMedia, GNU Radio is going to cause quite a headache. The FCC is accustomed to telling the manufacturers of TV sets how they should work, but whether it has the authority (or the imprudence) to attempt to control software running on ordinary personal computers is entirely uncertain. If the FCC attempts to implement broadcast copy protection, in other words, it will have to attempt to control the free software movement. If it does not risk an extension of its authority into the domain of ordinary software, the "broadcast flag" favor it is being asked to do for Hollywood will be worthless.

So my colleagues and I are currently urging the FCC to reconsider the "broadcast flag" proposal. If they don't, the stage is set for a confrontation between the free software movement and the media industries over GNU Radio, and the idea of "software-controlled radio" overall. That confrontation would test the power of the FCC to make rules governing ordinary computer software, and would raise very substantial freedom of speech issues, because the Commission would be trying to limit the distribution of general technical information. The next few months will tell whether the FCC is prepared to take on that challenge. The Free Software Foundation and the developers of GNU Radio certainly stand ready to challenge any regulation that prohibits the distribution of our software. Because GNU Radio is free software that any user has the right to understand and to modify, when GNU Radio is configured to receive broadcast digital TV, a user could modify the program to ignore the copy-protection -- in the form of the so-called "broadcast flag" -- under consideration by the FCC.

But GNU Radio's role in challenging Hollywood's preferred form of "content protection" for digital TV is just the beginning. In a much larger sense, over the next decade, free software will be an inherent part of a rebellion against the way the electromagnetic spectrum is managed throughout the world.

Since the late 1920s, governments everywhere have controlled the electromagnetic spectrum under conceptions of "stewardship," "public trust," or "public ownership". In some countries this has meant government exercising complete control over broadcast media, in others government has "licensed" a few favored private parties to make exclusive use of particular frequencies. Some mix of government-controlled and private broadcasting has been the norm in many societies, as it has been in Great Britain for the last generation.

All these arrangements have been predicated on two basic principles: that the electromagnetic spectrum is inherently a public resource ultimately owned by the people as a whole, and that technical factors require government to control the use of the spectrum in order to prevent what the economist Garrett Hardin famously called "the tragedy of the commons". If everyone were free to use all frequencies of the spectrum however he or she liked, interference would frustrate everyone's attempts. So, in the interests of the public, governments have given exclusive control over some frequencies to individuals and organizations, called "broadcasters", who have acquired enormous social influence and power as a result of their ownership of the means of mass communication.

But the technical basis on which this system of broadcasting rests has grown shaky. The modern cellphone is an example of a device that shares the electromagnetic spectrum with tens of thousands of other similar devices, without creating the cacophony associated with unregulated broadcasting. "Wi-fi" data communications, capable of carrying voice and video signals as well as every other form of digital information, are similarly arranged around spectrum sharing. These are early examples of the twenty-first century approach to the electromagnetic spectrum, in which frequencies are optimally employed by being shared -- used simultaneously by intelligent devices for all sorts of one-to-one, one-to-many and many-to-many communications -- not by being exclusively "licensed" to a few "broadcasters" who gain the power to communicate with millions while everyone else merely watches or listens. Although there are new, more efficient, and more democratic ways of using the public airwaves, governments remain in control of spectrum, assertedly on their citizens' behalf, and governments either themselves control broadcasting, or -- as in the United States -- are dependent for their political success on the broadcasters they have licensed. As a result, the power of the de facto owners of spectrum is maintained by the power of the State.

But "software-controlled radios", transmitters and receivers whose selection of frequencies and communications protocols are implemented in software, are going to become ubiquitous in the next decade; again, the cellphone is a familiar early example. And if the software in software-controlled radios is free software, users gain the ability to modify for themselves the rules about how spectrum is employed.

Could collectives of citizens "homestead" the spectrum, using free software and slightly modified transmitting and receiving hardware? Communications regulators in several countries are beginning to worry that they will soon be able to do just that. Broadcasters, already losing eyeball-share to "the Internet", are one constituency stimulating their worry. Badly battered telecommunications companies are another. If public wireless networks controlled by their users begin carrying significant amounts of voice and data traffic now carried over phone lines, local telephone service monopolies will be subjected to competition from a medium that is completely free.

So regulators are going to face increasing calls to prevent free software from running software-controlled radios, in the interest of preventing the public from using the public airwaves in the ways the public actually wants. Agencies that have traditionally controlled telephones and radio receivers are going to be attempting to control every general-purpose computer, and the software that runs on it. Free software is going to stand not only for free content, but also for free spectrum, and with it, free bandwidth. The same sort of challenge to their control that the content industries were facing in 2002, the bandwidth industries, both broadcasting and telecommunications, with all their power and their allies in government, are going to be facing long before 2012. A movement that originally seemed primarily a new kind of competitor for the PC software monopoly, and then became a threat to the sanctity of cultural ownership by Disney and other "content" companies, will soon be challenging the social control of bandwidth and the power of the broadcasters. Once again, when it comes to free speech, free software matters.

Eben Moglen is a professor of law at Columbia University Law School. He serves pro bono as FSF's General Counsel and as a Board Member.

FSF Notes

Upcoming Events

We will be at conferences on the west coast this summer. Be sure to look for our booths!

We will host an Associate Membership party on Wednesday 6 August 2003 in San Francisco. Members and two of their guests can attend for free. Details about the party will be available at member.fsf.org in late June 2003.

On Thursday 7 August 2003, FSF will host a Fund-raising Dinner also in San Francisco. The cost of the dinner will be $100 (20% discount for associate members).

On Friday 8 August 2003, we will hold a seminar on the GNU GPL. The seminar, titled "Free Software Licensing and the GNU GPL", will be co-led by Daniel Ravicher, Outside Counsel to FSF from Patterson Belknap Webb & Tyler, and Bradley M. Kuhn, Executive Director of FSF. The one-day seminar is designed to offer lawyers and businesspeople, who are working in software licensing, a complete introduction to the legal issues surrounding the development and distribution of Free Software.

This seminar will be held at Stanford Law School. A similar seminar will be held in New York in September 2003.

For more information about these or other FSF events, please contact <communications@fsf.org>

The GNU GPL Compliance Program

The Compliance Lab has been an informal activity of FSF since 1992 and was formalized in December 2001. One of its main functions is to provide general "knowledge infrastructure" concerning the GNU GPL and Free Software licensing. Our new GNU GPL Compliance Program provides companies with consultation on software development, license compliance, legal matters and software certification through a paid annual program. Currently over 28 corporations have access to consultation provided by the Compliance Program.

The annual program fee helps us to sustain the service in perpetuity, and provide the service gratis to volunteer Free Software developers. To learn more about the Compliance Program, please contact Peter Brown at <compliance@fsf.org>.

FSF Corporate Patron Program

The benefits include: a patron logo that the company can display on its website and materials, the company's name and/or logo on the "Current Patron" page, two free hours of consulting from and automatic membership in FSF's GNU GPL Compliance Program, and two complimentary passes to FSF-sponsored seminars.

To learn more about the program, please visit patron.fsf.org or contact <patron@fsf.org>. A list of companies already signed up is available on the site.

How to Donate to FSF

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