article on GPLv3, Linux kernel, and Devices Rigged to Malfunction

Alex Hudson home at
Mon Oct 23 10:26:47 UTC 2006

On Mon, 2006-10-23 at 08:44 +1000, Ben Finney wrote:
> Greg Kroah-Hartman, at least, is talking about the presumed illegality
> of non-free drivers in Linux at every opportunity. (Why he's not
> chosen to take legal action against infringers, I'm not sure.)

And it's not like he's the only one. But there are only a couple of
developers taking action over the GPL, and usually over the grossest
infringement (e.g., distribution without source).

> A consistent history of copyright violation lawsuit wins against these
> infringers would educate the individual vendors involved, and would
> send a clear message. I can't imagine a successful prosecution result
> that didn't include cessation of distribiting infringing works as part
> of the judgement.

Maybe; but it hasn't really happened so far. Indeed, most infringement
has been ceased by private agreement, which has included the infringer
becoming compliant but usually not ceasing distribution (in fact, I
don't know off hand of any example of that).

Without that avenue of compliance open - for example, if it is
impossible to un-Tivoise a device after release - this type of licence
would then virtually require court action, since any infringer is
unlikely to cease distribution by agreement.

I'm not making a comment either way on whether or not the clause is a
good thing - I think on balance, I'm in favour of ensuring that people
are able to modify free software - but I wonder whether this type of
clause would necessarily lead to an escalation in litigation.

> > There is a limit to which you can use copyright on a work to govern
> > precisely how it gets used (hence the pro-DRM laws).
> How it gets *used*, no. But copyright is, and has been from the
> beginning, all about governing how one can *derive* and *distribute*
> works, which is what we're discussing here.

I don't mean "use" in a narrow copyright sense.

At the end of the day, software is different to most other literary
works. Most are stand-alone, some - though few - end up in collections.
Software, though, is just one part of a jigsaw of usually many other

Because of that, there will always be ways around the restrictions of
the GPL. The anti-Tivo-isation clause is actually incredibly limited: I
have no doubt it wouldn't prevent Tivo _at all_. For one, it applies
only to source code, and only talks of a couple of specific
technologies: basically, unless the binary encodes a secret key (e.g.,
DVD CSS) or is digitally signed (I don't know of anyone doing this -
maybe Xbox?), it doesn't apply.

Maybe I don't know what the issue with the Tivo was, but I do know a
little about getting free software onto black-box devices. The GPLv3
won't do anything about ensuring hardware support is there to download
new software, or that the software can be modified, or that the hardware
will run modified software, or that the complete software for the device
is available even in non-free form, or much else. 

The authorisation code the GPL refers to is a shared secret key;
publicising that would make the entire reason of having it moot and
pointless, so I don't see anyone with sense doing that before releasing
a product (they may as well just remove the authorisation for all the
good it would do). Encryption/signing/etc. fails for very similar

So, it kinda seems to me that a) people are arguing over a term which
would be mostly inconsequential in the real world, b) I can't think of
many reasons why including this in the GPLv3 would result in measurable

On the GPLv3 in general: I like most of it. The patents stuff is
definitely needed. The DRM/Tivoisation stuff, I'm less sure about, and
would be in favour of more time being spent to get it right.



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