FSF Comment for the USTR's 2010 Special 301 Review

by Brett Smith Contributions — Published on Feb 17, 2010 10:57 AM

February 16, 2010

Stanford K. McCoy
Assistant U.S. Trade Representative for Intellectual Property and Innovation
Office of the United States Trade Representative
600 17th St NW
Washington, DC 20006

Re: Special 301 Review (Docket no. USTR-2010-0003)

Dear Mr. McCoy:

I am writing on behalf of the Free Software Foundation (FSF), a registered501(c)3 nonprofit organization based in Boston, Massachusetts, withcomments for the 2010 Special 301 Report. The FSF believes that everyoneshould be allowed to share and change the software that they use, and thatpeople are harmed when they are prohibited from doing so. When software islicensed under terms that permit such modification and redistribution, wecall that software free software. We provide technical and informationalresources to developers who are releasing free software. We also hold thecopyright for more than 200 such programs.

With the passage of the Digital Millennium Copyright Act (DMCA) in theUnited States, and various national implementations of the European UnionCopyright Directive (EUCD), other governments are coming under increasedpressure to "harmonize" their copyright laws by passing similarlegislation. However, such laws do not benefit all copyright holders. Infact, these laws harm the development and distribution of our software, andother free software programs, in a variety of ways. They also forcecomputer users into an unconscionable choice between participating in ourculture and using software they do not control. Furthermore, the damagedone to free software has negative effects on other industries, includingelectronics manufacturing, hospitality, and scientific research. Thus, wesuggest that no country should be placed on the Special 301 Report PriorityWatch List or Watch List for lacking such legislation.

I. These Laws Hurt Free Software and Commerce

A primary component of laws like the DMCA and implementations of EUCD arecommonly referred to as "anti-circumvention" terms. These specificportions of the law prohibit the development and distribution of productsand information that would help people circumvent so-called "effectivetechnological protection measures" on copyrighted works. It is theseprovisions which represent the biggest obstacle to free softwaredevelopment posed by these laws.

In such legislation, "effective technological protection measure" is a termof art referring to Digital Restrictions Management (DRM)—some kind oftechnology that attempts to maintain control over how a user accesses andenjoys some kind of media, such as a musical or video recording. There aretwo common implementation strategies for DRM today: the data can beencrypted and require proprietary information to decrypt, or access to thedata can be controlled by software that queries a server before permittingthe user to access it. These methods can be used separately or inconjunction with each other.

These laws make few distinctions between different reasons why people andorganizations try to bypass the DRM. As a result, activities that wouldotherwise be legal are now illegal simply because the copyright holders donot authorize them. A person who legally purchases a DVD or someDRM-encumbered music will not be able to enjoy it without also obtainingspecially licensed player software.

To date, no popular DRM scheme that qualifies as an "effectivetechnological protection measure" under these laws can be legallyimplemented with free software. A person or company who was interested indoing so would have to enter a licensing agreement with the industry groupthat controls the corresponding DRM. These groups believe it is vitallyimportant to maintain as much secrecy as possible about how the DRM works,and so the licensing agreements include terms that effectively prohibitreleasing player software under a free software license.

In the end, all this means that people who prefer to use free software ontheir computers have no legal means to enjoy any DRM-encumbered media thatthey have purchased. This hurts the adoption and development of freesoftware in a number of ways:

Fewer people are willing to use free software systems, preferring insteadto use a system that allows them to enjoy all the media they havepurchased. Furthermore, because free software users are often encouragedto help contribute to the software's development—by submittingfeedback, bug reports, improved documentation, or even new code—lessadoption results in less development activity.
Because the anti-circumvention terms in these laws are so far-reaching,they touch almost every aspect of free software development, from themoment the first line of code is written until the time when it ispublished. Volunteers and companies who help create and distribute freesoftware are compelled to spend significant amounts of time and effortensuring compliance with the law. This creates a significant opportunitycost for the free software community: that time could be better spentimproving the software.
Free software developers often coordinate their work and plan for thefuture at dedicated conferences. Since the 2001 arrest of DmitriSklyarov in the United States on charges of distributing circumventionsoftware—charges that were later dropped—some developers haverefused to travel to conferences hosted in the U.S. or other countrieswith similar legislation. This impedes the coordination and planningthat these conferences are designed to foster.

Put simply, free software would be better than it is today had these lawsnot passed. Anti-circumvention laws force people to make a choice: theycan either refrain from enjoying some of the art that is produced andpublished today—effectively cutting themselves off from part of ourshared culture—or they can use software that they are not allowed toshare with others, and that they cannot guarantee works only for theirinterests. In fact, a number of programs written to implement DRM inrecent years have hurt the security of users' computers and invaded theirprivacy, even well beyond what was strictly necessary to merely enforce theDRM. The fact that people are forced into that unethical choice hurts usall, no matter what decision they make.

But even beyond the costs inherent to such legislation, commerce and tradeare hurt as a consequence as well. The effects are wide-reaching:

Hardware manufacturers depend on free software. In every category ofelectronics, including televisions, cellular phones, GPS navigationsystems, and networking equipment, free software is a crucial componentof many popular products. Device manufacturers like to use free softwarebecause it's easily adaptable to their needs, and does not require thepayment of licensing fees or royalties. However, they often must dotheir own development work when readily-available free software does notperform to their specifications. Improvements in free software would cutdevelopment and per-unit costs for companies in this industry.
Offices that rely on free software for their day-to-day business would bemore productive and save costs if that software had more features andfewer bugs. This is especially true when companies need to deal withDRM-encumbered formats, where free software can offer no support at all.
Free software conferences are a boon to the U.S. hospitality industry,and contribute to our standing as a world leader in software developmentand scientific research. The negative effects in these areas might benegligible if they were limited to a small number of would-be attendeeswho boycott venues with anti-circumvention laws. However, conferenceorganizers who are choosing a venue have often been pressured not toselect cities in these countries for precisely this reason. As a result,entire conferences move elsewhere, and the loss is palpable.

Put plainly, anti-circumvention legislation represents a significantobstacle to the Free Software Foundation's mission, and to the developmentof free software worldwide. The effort spent navigating those obstacleshas negative consequences in a wide variety of industries.

II. Foreign Governments Should Not Be Pressured to Enact Similar Laws

Since the DMCA was passed in 1998, foreign governments have been underincreasing political pressure to enact similar legislation. Much of thatpressure comes from the United States Trade Representative. This issue wasa highlight of the 2009 Special 301 Report: failure to implement the WIPOInternet Treaties were cited as a source for concern in ten separatereports for countries on the Priority Watch List or Watch List.Obligations to implement anti-circumvention legislation have featured inat least eight bilateral Free Trade Agreements that the U.S. has enteredsince then. The USTR also sought to include such obligations in theproposed multilateral Free Trade Area of the Americas agreement, andthough little official information is available, various reports suggestthat the Anti-Counterfeiting Trade Agreement currently includes similarprovisions.

All this happens despite the fact that such laws hurt the development offree software, and have negative impacts on trade throughout severalindustries. The effects are serious enough that the DMCA remainscontroversial more than a decade after it came into effect, andimplementations of the EUCD face similar opposition. The USTR has aresponsibility to promote trade in a manner consistent with the democraticprinciples our country was founded upon, and advocating foranti-circumvention legislation abroad does not meet that criteria. TheUSTR should cease using such laws as a negotiating stick in the Special301 Report.

III. Conclusion

The structure of anti-circumvention legislation assumes one particulareconomic model around copyrighted works; one in which all the works witheconomic value are distributed by a handful of large companies that arededicated to the task and profit by controlling that distribution. Thismay have been the predominant way for trade to benefit from creative worksin the past, but the Internet has ushered in new means for creating anddistributing these works, and numerous industries have benefitted from thischange. Anti-circumvention laws funnel benefits to incumbent industryleaders but impose opportunity costs on other areas of commerce and trade.Those costs are made visible in the way free software is developed; withoutthem, we stand to provide benefit to numerous sectors of the economy, bothdomestically and internationally.

It may be commonly believed that what's good for some copyright holders isultimately good for all of them. This notion is reflected in terms like"intellectual property rights"—a misleading terms that lumps togetherdisparate issues and frames debate with an assumption that rightsholdersshare one particular set of interests. However, such a notion is plainlyfalse: there are many copyright holders in the United States, and they havemany varied interests, which are sometimes at odds with each other. In thecase of anti-circumvention legislation, what may benefit large copyrightholders of music and movies is harmful to many free software developers.Indeed, all of those software developers have clearly demonstrated throughtheir actions that they are far more interested in providing freedom tocomputer users than using copyright to control access to their work. TheUSTR should not hamper their efforts by advocating for anti-circumventionlegislation abroad. Failure to enact such legislation should not be partof criteria for inclusion on the Special 301 Report's Priority Watch Listor Watch List.