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DMCA exemption update: SFLC replies to content industry
The Software Freedom Law Center responded on Friday to comments submitted in the DMCA exemption rulemaking process by the Business Software Alliance, Recording Industry Association of America, Motion Picture Association of America, and several other content industry groups. SFLC's full reply is here; it begins with this summary:
In our initial comments, the Software Freedom Law Center voiced a self-evident proposition: the owner of a computer should decide what software to run on it, regardless of the form that computer embodies. This proposal was echoed by the subsequent comments of dozens of organizations and individuals, for whose unsolicited support we are deeply grateful.
Against common sense and public opinion stands a single submission, the comments a group of content industry associations who represent neither the manufacturers producing computing devices nor the users who buy them. Where we affirm the right of device owners to improve their devices, accommodate the needs of disabled persons, and ensure their own security, these groups respond with a single nonsequitur: a concern for copyright infringement that the exemption would neither enable nor encourage.
The red herring of “piracy” obscures the respondents' true purpose, to control the secondary market in operating systems and applications. They do not make this purpose explicit because it is baldly anticompetitive: as the Federal Circuit warned and the Ninth Circuit acknowledged, the content industry's reading of 17 U.S.C. § 1201(a) “would allow companies to leverage their sales into aftermarket monopolies, in potential violation of antitrust law.” Their comments in this rulemaking would themselves implicate antitrust laws were they not shielded by the Noerr-Pennington doctrine.
When the Digital Millennium Copyright Act's anticircumvention provisions were first enacted, respondents reaped a windfall. The law gave them an effective power of prior restraint, presumptively banning all manner of lawful activity where technological protection measures were used. It is no surprise, then, that they have never met an exemption that they didn't oppose—here, they call even limited accommodations for blind and deaf persons “unnecessary.” They should not be allowed to extend their already-substantial control to copyrighted software produced by others.
SFLC's exemption would have neither the legal nor the practical effect of encouraging infringement; rather, it would protect innovation in the secondary market, promoting the production of new copyrighted works and the security of users. DMCA § 1201(a)(1) is concerned with unauthorized copying of copyrighted works. But where, as here, it is used not to prevent infringement but to control the secondary market in computing hardware or software, its reach must be curtailed.
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Proposed DMCA Exemption Would Unchain Device Owners
SFLC Asks Copyright Office to Let Users Choose Their Software
The Software Freedom Law Center submitted comments yesterday to the
U.S. Copyright Office proposing an exemption from the Digital
Millennium Copyright Act's anti-circumvention provisions. If granted,
the exemption would ensure that owners of personal computing devices
have the right to install whatever software they choose on their
devices.
SFLC's request responds to a growing trend among mobile device
manufacturers to lock users out of their own devices by controlling
application distribution channels and preventing replacement of
devices' operating systems. In its comments, SFLC says these
practices were first broadly seen on mobile phones but are now
commonplace on tablets and other mobile devices, and may soon extend
to personal computers via PC "app stores" and the Unified Extensible
Firmware Interface (UEFI) specification's "secure boot" provision.
"People must have the right to control the software running on
devices they own," said SFLC counsel Aaron Williamson. "That right
is essential to the continued development of free and open source
software and is foundational to our privacy, security, and freedom,
online and off."
The requested exemption would expand on similar protections,
requested by the Electronic Frontier Foundation in 2009, that
apply only to mobile phones. It would not only broaden those
protections to reach all personal computing devices but would
clarify that users can replace their devices' operating systems as
well as install their choice of applications.
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SFLC Co-Hosts The Community Distribution Patent Policy FAQ with Debian
Software patents increasingly threaten both large technology firms and independent developers. Naturally, this has caused uncertainty in the free software community. To help free and open source software developers better understand patents, the real risks they pose, and the limits to their reach, the Software Freedom Law Center is publishing on its website the Community Distribution Patent Policy FAQ.
SFLC prepared the FAQ earlier this year in collaboration with the Debian project to address common questions from community developers concerning the effects of the patent system on their work for community distributions. The FAQ has been available on Debian's site for some time; however, since its contents may be useful to other FLOSS projects, SFLC has added it to its resources for developers.
SFLC hopes that this FAQ will serve as an educational aid to the members of the community as they seek to better understand patents.
The FAQ is not a substitute for legal advice; developers with specific concerns should consult an attorney. (Volunteer FLOSS developers and nonprofit projects can write to help@softwarefreedom.org.)
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Karen Sandler Named New Executive Director of the GNOME Foundation
The Software Freedom Law Center (SFLC) today announces with its client, the GNOME Foundation (GNOME), that GNOME has appointed SFLC's Karen Sandler as Executive Director. Sandler's dedication to software freedom, her non-profits experience and her involvement in a wide range of free and open source software communities distinguish her as the logical choice for GNOME. "I'm very excited that Karen is joining the GNOME Foundation as Executive Director!", says Stormy Peters, former Executive Director who has recently joined the GNOME Board as a new Director, "Karen brings a wealth of experience in free software projects and nonprofits as well as a passion for free software. That experience will be invaluable as GNOME continues to expand its reach with GNOME 3.0 and GNOME technologies."
Sandler joins the GNOME Foundation from the Software Freedom Law Center where she has been General Counsel, advising a wide range of free and open source software organizations such as the Free Software Foundation, the Apache Software Foundation, the X.Org Foundation, Software in the Public Interest and the Software Freedom Conservancy. With SFLC, she also led an initiative advocating for free software on implantable medical devices. "Karen Sandler has been essential to the success of SFLC over the last six years," said SFLC's founder and executive director, Eben Moglen. "As our general counsel, she has been in the truest sense a lawyer's lawyer. In representation of our clients she has been a superbly creative and conscientious practitioner. As mentor to younger lawyers here, she has set the finest of examples. The GNOME Foundation could not have chosen more wisely." Sandler will continue to work on some legal matters pro bono at SFLC.
Sandler is a frequent speaker on free and open source software issues at corporate based conferences such as the the O'Reilly conferences and the Linux Foundation conferences, as well as community and nonprofit driven events such as the Free Software Foundation's LibrePlanet and SCaLE. Prior to SFLC, she held legal positions at Gibson Dunn & Crutcher, LLP and Clifford Chance, LLP. Sandler earned her legal degree from Columbia Law School and her engineering degree from the Cooper Union.
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Mishi Choudhary promoted to Director of International Programs
We are proud to announce a new position at the Software Freedom Law Center: Director of International Programs. Over the past few years SFLC has become an increasingly International organization, working with the European Commission, launching SFLC India, and consulting with governments around the world on issues of free software licensing, policy, and use. Mishi Choudhary, counsel at SFLC and head of SFLC India, has always been at the heart of this work so it is only fitting that she is stepping up to fill the new position. Congratulations to Ms. Choudhary and we all look forward to a stronger international presence ahead.
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