Chapter 10. Why Open Source Needs Copyright Politics

Wendy Seltzer

Some programmers and businesspeople draw a distinction between "Free Software" and "open source." Free Software is political, they say, and open source is pragmatic. Free Software developers want to recode the world; open sourcers just want to write good code. This distinction is, of course, exaggerated. Many people adopt these labels for their own reasons; some switch between them depending on audience or context. But even the most apolitical of open source developers and users should be concerned by the copyright battles waged right now. The copyright law being made and enforced today will impact the software we can develop and use for decades, and its impact reaches far beyond commercial media.

Imagine, for example, that you'd like to build an open source home multimedia server. Nothing fancy yet, just a place to play music, watch the occasional DVD, and record television programsone machine to replace the menagerie of devices nesting in your media center. Easier developed than cleared legally. Technically, you (or others willing to share with you) will be able to meet the challenges with Moore's Law-fast processors, ever-cheaper massive storage capacities, and clever user interfaces. The legal obstacles are harder to hack. Start with the music. If you have standard CDs, you're all set: plenty of Free programs let you play them from the CD drive, rip them to Ogg, FLAC, or MP3 (with a nod, perhaps, to the patent licensors at Fraunhoffer). Try to connect to a streaming service or purchase music online, and things get tricky. Apple's iTunes, the "new Napster," and Rhapsody all lack open source clients, and none would be happy with reverse engineering to write one that plays the music they sell encrypted or by subscription.

Yet music is the easy part. Want to write a player for DVDs you've purchased or Netflixed? Because only closed source implementations have been licensed to decrypt the DVD's files, any DVD player you write is liable to be deemed a "circumvention" by the movie studios and courts, even if the only features you write match those of WinDVD or the standalone player under the TV. Television, then; recording over-the-air broadcasts shouldn't be too hard, since those are unencrypted. Watch out for the digital television transition and the broadcast flag, though. Unless public interest groups' challenge succeeds, the FCC's broadcast flag rule will ban open digital TV tuners that can be used with open source software. The only ones who will be able to play will be those making closed hardware or proprietary software decoders. You'll encounter these obstacles before you even try to take any of your media off the server to exchange with friends or family.

OK, but say for a moment that you have no interest in multimedia. Leave that minefield for another day and move on to business networks or productivity software. Even there, copyright law intrudes. Your security analysis of a system's encryption might be limited by what media companies have preemptively claimed as "technological protection measures;" your selection of replacement parts or add-on modules could be dictated by copyright-based tying more than fitness for use; your ability to interoperate depends on whether reasonable interpretations of the law prevail over some vendors' extreme copyright claims.

Like a group of once-healthy cells grown out of control, copyright law has metastasized to threaten the system of creativity it was once helping to support. No longer a "limited monopoly" to encourage creativity and dissemination of creative works to the public, copyright has become a blunt tool of exclusion, chilling development of software, among other creative endeavors. And so the fight to restore balance to copyright law cannot be dismissed as mere politics. Unless users and developers of open source software join the copyfight, they will find the new reality of copyright law restricting not just their freedom to play blockbuster movies, but also their core freedoms to write and run independent and interoperable software.