Copying and Sharing in Self Defense

Copying and Sharing in Self Defense

Alexandre Oliva <lxoliva@fsfla.org>

Based on the widely-recognized and seldom-disrespected human rights to enjoy and memorize works of art one can access, and to grant and accept access to them, this article claims legitimate rights to preserve access to works, to convert works to different formats and media, to download and to upload works on the Internet, and to receive and to share works in P2P networks. The full enjoyment of these human rights amounts to self defense against the constant attacks to them.

We shouldn't feel guilty or ashamed for sharing and downloading digital files. However, the brain washing promoted by the publishing industries of music, cinema and software twists our notions of right and wrong. Confused and scared, we give up rights and accept restrictive laws that serve their greed, in detriment of society. Arguing that so-twisted laws prove us wrong and guilty, they seek even more legal power over us, while pretending to have it already. But they don't, and they can't, as long as our human rights are respected.

Disclaimer: the author is not a lawyer. Nothing in this article should be construed as legal advice. However, if you're ever threatened or sued by the publishing industries or the anti-copying police forces they're establishing, show this article to your lawyer.

The right to enjoy

Article 27. (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

Universal Declaration of Human Rights, December 10, 1948

If you're walking on the street and you find a wallet on the ground, you'll probably pick it up and try to locate its owner to return it. If, while searching for some document that identifies the owner, you find a piece of paper with a poem in it, reading it is all right. You don't have to ask for permission (license) from the author of the poem, or from the owner of the wallet: you're entitled to read it and enjoy it. As long as you put it back in place, you won't have taken anything from anyone. On the other hand, taking the money from the wallet wouldn't be right, for it would deprive its legitimate owner of it. Publishing industries attempt to confuse us hiding this crucial difference.

If you walk a bit further and hear your neighbor sing a song in the shower, that's all right. You don't have to ask for permission (license) from the composer of the song, or from its performer: you're entitled to listen to it and enjoy it, and even memorize it and sing it for yourself and your friends at a later time.

You hear the bells from the church and you know that at about that time your VCR will be powering off, after taping your favorite broadcast TV show, so you can watch it as you get back home from work. You don't have to ask for permission (license) from the director, the studio or the TV broadcaster: you're entitled to record it and watch it at a later time, along with your family and friends.

You get home, you power on your portable computer and load into its drive a DVD you rented. You don't have to ask for permission (license) from the director, the studio, the DVD publisher or the rental shop to watch the movie, and this involves such tasks as copying the movie from the DVD media to the computer memory, unscrambling the regional encoding, decompressing the video and the audio, copying the video to the digital display memory and converting it to pixel patterns on the screen and then to light waves, copying the audio to the digital audio amplifier and converting it to mechanical vibrations and then sound waves, and finally converting this all into neural impulses and into temporary or permanent memories. Since you're entitled to watch the movie, you can copy, convert, memorize and replay the whole or the parts, without depending on anyone's permission.

The right to enjoy an artistic work you've had access to is a practical issue. It would be ridiculous to have to ask for permission before reading a piece of paper, and then, once you get it, find out that the permission was spelled out right there. It would be ridiculous to have to somehow refrain from listening to a song that's playing around you. It would be ridiculous to be deprived of a TV show just because it's broadcast to all at an inconvenient time. It would be insane to have to ask for permission for each of the conversion and copying steps involved in enjoying an artistic work. It would be insane to have to ask for permission to retain the work in your memory, or to force yourself to forget it in case you fail to locate someone who could and would grant it.

Fortunately, that's not the way it is! There's nothing wrong in any of these things, and no law stops you from doing them. There shouldn't be any: it would be unjust, and it would violate fundamental human rights. You have a right to enjoy works of art you have access to, and to take part in the cultural life in your society. No law should ever take that right away from you.

The right to share

Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

– Universal Declaration of Human Rights, December 10, 1948

Say you have a very large collection of books, and you're disappointed that few people get to read them. You decide to donate them to a public library. You don't have to ask anyone for permission to make the donation, and the library doesn't have to ask anyone for permission to lend the books to whomever might be interested in them.

If publishing industries had it their way, you'd have to lock your CD, tape, DVD, and book collections in safes whenever you had guests, lest they should borrow any of them. Instead, you're not only entitled to display them: you can also play them for your visitors, and let them borrow your copies and listen to them, watch them or read them wherever and whenever they like.

Laws that prohibited receiving and imparting information and ideas would violate fundamental human rights.

The right to preserve

Article 28. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

– Universal Declaration of Human Rights, December 10, 1948

When you buy CDs, DVDs, books, etc, what you're buying is access to the work, rather than its supporting medium or a supposed license for enjoying it: you don't need any license for that. In fact, if the medium gets damaged, any decent publisher will replace the broken copy of the work, for no more than a nominal fee that covers media, packaging and shipping costs, so that you can retain the access you'd paid for.

If the publisher goes bankrupt or runs out of copies, you don't have to let your only copy of the work degrade till you lose access. If the publisher is not decent, it might actually plan for the copies to degrade, to sell access repeatedly until it starts denying access to the work, indefinitely, to all of society. Such a plan is not supposed to work. In fact, several jurisdictions explicitly permit, beyond any doubt, backup copies and copies for personal use, in spite of any exclusive copying rights of an artistic work society might have granted to anyone else.

This explicit permission, albeit welcome, is not strictly necessary. It's all right to remember works one had access to. However, few have perfect or photographic memory, so we're taught to use auxiliary memory to record things that matter: to take notes of classes, meetings and findings, to take pictures and record movies of important events in our lives, and even to make backups of information we store in primary and auxiliary memory.

A backup copy of a work is nothing but a memory extension, so that you can more accurately and better remember the work, to recall it and enjoy it at a later time.

No laws can or should stop you from keeping memories and enjoying them, for without memory, the rights to enjoy and to share cannot be fully realized.

The right to convert

Along the same lines, if your old LPs and cassette tapes are degrading, and you worry about finding needles, magnets or motors to fix your players in case they break, you can find comfort in that you are entitled to preserve your access to the works, even if this requires converting them to another form and storing them in other pieces of auxiliary memory.

Say, you can play them into a computer and record them onto electronic, magnetic, optical or any other kind of memory, to time-shift into the future your remaining ability to play the works as many times as you might want.

You can further convert the works to different encoding formats, if that's what it takes for you to be able to enjoy them, while driving your car, walking on the street or sitting at a bus or train with a portable music or video player, or another kind of computer.

Remember, there isn't, and there shouldn't be, any law that stops you from copying and converting a work as accessory steps in the process of enjoying it, or from backing up the results of these accessory steps for future use. You are not supposed to be bound by the limitations of the medium, format or players selected by the party who granted you access to a work: once you gain access to it, you're entitled to enjoy it however you like.

The combined right to share and preserve

Say a friend wants to borrow a DVD from you, but her dog is famous for its taste for DVDs. You might consider declining your friend's request, but why should you? You might as well just make a backup copy of the DVD, to preserve your access to the work, and then let your friend take home the "original" copy, or the backup copy you made.

Your friend, in turn, might fail to watch the movie before the time she agreed to return it, or want to watch it a few more times. To preserve her access, extending her memory and time-shifting her ability to enjoy the work as many times as she liked, she could return your copy after making a backup copy of her own. Or call you to ask whether she could keep the copy. She may even refrain from calling, if she knows you will just call her if you ever need it.

In fact, you might have an agreement with her, so you'll keep backups for each other. Even over the Internet! Although each of you maintains other backups at home, that won't protect one's files should one's house burn down, for example.

So, she reserves part of her computer's disk space for you to hold your files, and you reserve part of yours for her. You trust each other enough to not be worried about privacy issues, but you also know that you're backing up each others' picture, song and movie collections, and that's as fine as if the pictures, songs and movies were backed up onto off-site CDs, DVDs, tapes, whatever.

And then, since you're not required to police access to works (in fact, we saw you're entitled to share it with your friends), you're not required to encrypt the data or have her agree never to look at those files.

Your arrangement might even include an understanding that you agree that each one can access the pictures, songs and movies in the backups maintained for the other. No further permission is required.

The rights to download and upload files

Say you're going on a trip, taking in your portable computer some papers you want to read. Concerned about theft and loss, you post the files on your web site as well, so that you can get to them on any cybercafe. You don't have to ask anyone for permission to do this: you're just preserving your access to them.

These files are for personal use, so at first you don't tell anyone about the URLs. However, during the trip, you get an e-mail from a friend, and she asks about a paper you'd mentioned to her. It's one of the papers you'd uploaded to your web site, so you send her the URL. You're entitled to share works you have access to with your friends. The fact that you can't meet them personally to hand them copies in physical media shouldn't get in the way. They, in turn, are entitled to enjoy them and preserve them once you grant them access. Neither of you has to ask anyone for permission.

Your friend passes on the URL to another friend, who then posts it to a private mailing list, and the message later on is forwarded to a public mailing list. People from all over start downloading the file from your web site. That's fine, you're entitled to share the work with every one of them. Even if you weren't, you're not required to police access to the site any more than you're required to hide your DVD collection when a friend visits you. Similarly, those who download it aren't required to police you on whether you have any permission you might need in order to grant them access to the work, any more than they'd have to check whether you're entitled to lend them a DVD.

The right to P2Preserve

Your cross-backup arrangement works so well that, when you read about a peer-to-peer distributed backup system, you jump into it. As before, each peer offers a portion of their hard disks to host others' backups, and in turn has portions of their own disks backed up on the network.

One major advantage is that the backups are replicated among various participants, so that even if a few drop off the network, the backup files remain available. The system is also clever enough to tell when multiple users want to back up the same file, avoiding wastage.

Of course you keep your personal files encrypted on such a backup system, for you don't trust everyone out there as much as you trust your friend. But for files you'd normally share with friends, why would you prevent wastage reduction?

One day you get an e-mail from another peer in the network, asking whether you'd mind if she kept a copy of a song she found out she was backing up for you. What a silly question! She was already keeping that copy, and she had evidently already gained access to the song, so it's obvious she can keep it. But she thought asking couldn't hurt. It didn't: it gave rise to a good friendship.

The right to P2Participate

One day you accidentally remove a file from your computer. You ask the network for a backup, and you find it's restored so quickly you can hardly believe it! By chance, another peer had just backed up a copy of that file in the network, and it happened to be transferred to your computer shortly before you requested the restore.

Turns out this person seems to like the same songs you do. You recognize most of them, but there are a few you hadn't heard before, and they're just the sort of thing you love! So you keep a copy of the songs that this new friend shared with you. You also send him a thank-you note with some musical tips, and you become close friends.

Nowadays, every time you purchase a CD or a DVD you like, you preserve it in the folder backed up by P2P. Nothing stops you from using the network as memory to preserve your access to the works, or from permitting your friends to gain access to them. And every now and then you get e-mail from a new friend thanking you for that.

One interesting aspect of this network is that, when a peer drops off, the network will make up for the loss creating more replicas of the files that were in the peer. You don't have to ask anyone for permission to transfer around the files you host for others, any more than an ISP needs to ask anyone for permission to transfer the files you requested from third parties, or to cache them.

When you join a P2P network just to download a file, the situation is slightly different, for you have a much better notion of what you're downloading and transmitting. However, as we saw before, it's all right to download an artistic work and to share access to it with a friend. If someone who's entitled to share access with you and others asks for your help in extending it to the others, why not help?

But what about the poor publishing industry?

Article 27. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

– Universal Declaration of Human Rights, December 10, 1948

Under the false pretense of helping authors, whom the inhumane publishing industry exploits as much as it does us, it will probably keep on trying to limit what people can do, by technical and legal means, inventing technological barriers to deny fundamental rights, threatening to sue and to throw people in jail for exercising them, and hiring legislators to pass laws that take further rights away from us.

But why should society accept laws that undermine fundamental human rights, as well as such bases of society as friendship and sharing? Sharing with friends yields no material interest, therefore not even an author could invoke the human right of protection of material interests to oppose it.


If some day we develop teleportation, and the technology becomes widely available at low cost, businesses that depended on the difficulty of transporting people and goods from one place to another would have to revise their strategies. Some might adapt and find other just ways to earn money; others would press to preserve their obsolete business models.

But imagine if telegraph had been forbidden because of concerns from the postal industry. If telephone, e-mail and instant messaging had been forbidden because of concerns from the telegraph industry. If mobile phones or calls over the Internet had been forbidden because of concerns from the landline phone industry.

It doesn't make sense for society to prohibit or limit the use of teleportation just to maintain the scarcity that enabled transport businesses to profit; certainly not unless this deprivation somehow brings greater good to society at large.


If some day we develop object multiplication technology, and it becomes widely available at low cost, businesses that depended on the difficulty of producing replicable objects or substances would have to revise their strategies. Some might adapt and find other just ways to earn money; others would press to preserve their obsolete business models.

But imagine if the bread producers attempted to prohibit the multiplication of bread for the hungry. If the fashion industry attempted to prohibit the replication of clothes for the shivering. If the pharmaceutic industry attempted to prohibit the copying of medicines for the ill. If the farming and seed industries attempted to prohibit the reproduction of soy, corn, potato, wheat, rice, beans and other kinds of food. Nonsense! It's no wonder that some find it so hard to believe that intelligent people could be misled into crucifying someone for multiplying and sharing fish and bread, and for teaching others how to perform such miracles.

It doesn't make sense for society to prohibit or limit the use of multiplication, just to maintain the scarcity that enabled manufactures to profit; certainly not unless this deprivation somehow brings greater good to society at large.


Turns out computers connected to the Internet can perform remote multiplication of digital works. Businesses that depend on the difficulty of replicating and transporting these works have to revise their strategies urgently. Some have already adapted and found other just ways to earn money; others have been pressing to preserve their obsolete business models.

But it doesn't make sense for societies to prohibit or limit the use of digital multiplication, local or remote, just to restore the scarcity that enabled publishers to profit before this advance; certainly not unless this deprivation somehow brings greater good to society at large.


All laws in a democratic society should bring benefit to society. Copyright, for example, is a limited monopoly granted by society, as an incentive to the publication of artistic works, so that they can be enjoyed and used by all, even though some limited uses, that would be impossible without the publication, have to wait for the expiration of the monopoly.

There is no indication that granting publishers more power over authors and us will bring about any benefit to all. Criminalizing alleged violations of copyrights isn't improving the artistic quality of the published works. Extending copyrights' duration retroactively every time Mickey Mouse is about to finally enter the public domain isn't giving us more Walt Disney works, neither new (how could it?) nor the well-known ones. Giving publishers powers of legislators and judges, by passing laws that prohibit us from escaping technical limitations designed into their products, even to perform acts we are entitled to, would deny society the very benefits that justify the monopoly: enabling everyone to enjoy and use the works, even after some short delay.

We should all keep in mind that copyright was designed so as to permit private enjoyment, private performance, and sharing and preserving culture, and that we'd need very good reasons for all to deprive ourselves from any of that. We must fight attempts to turn these laws inside-out, for they would benefit few in detriment of most.

Fundamental rights and self defense

Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

– Universal Declaration of Human Rights, December 10, 1948

When some provision of law or proposed bills appear to conflict with fundamental rights, we're entitled to and supposed to stand up for our rights, and oppose laws that deny them or cast doubt on them.

Since these are fundamental rights, they shouldn't be outlawed. Even if there are criminal provisions that appear to cover them, in a state of law the regular enjoyment of civil rights can't be regarded as a crime.

As for private means to attack fundamental rights, that the industry resorts to every now and again to impose restrictions that violate human rights, deflecting the attack to enjoy the civil rights amounts to acting in self defense, which, in a state of law, can't be regarded as a crime either.

Written for the proceedings of the First Congresso Estadual de Software Livre do do Ceará, CESoL-CE, held in Fortaleza, Ceará, Brazil, from August 18-23, 2008.

Copyright 2008 Alexandre Oliva
Copyright 2008 FSFLA

Permission is granted to make and distribute verbatim copies of this entire document worldwide without royalty, provided the copyright notice, the document's official URL, and this permission notice are preserved.


DMCAnada: DRM versus society


Subject: DRM versus society
From: Alexandre Oliva <lxoliva@fsfla.org>
To: Prentice.J@parl.gc.ca, Minister.Industry@ic.gc.ca, Verner.J@parl.gc.ca, pm@pm.gc.ca
Cc: anti-drm@fsfla.org
Organization: FSF Latin America

Copyright was originally designed to benefit society, but mislabeling creative works as property has been used in the digital age to justify measures that deprive society of both the works and the benefits.

Copyright was an incentive to creativity, to the publication of creative works, through a temporary limited monopoly granted to authors. Once the monopoly expired, the status prior to copyright law was restored: everyone could share and build upon the covered work.

Respecting the monopoly was everyone's short-term sacrifice for the long-term availability of more and better creative works. And it was a small sacrifice, for the term was short, and publishing was costly and difficult regardless of copyrights and fair use rights.

The mind-twisting phrase "intellectual property" turned upside-down the logic behind this sacrifice: instead of serving society, the law became a tool to defend intermediaries' interests that take away both from society and from the authors they claim to represent.

Creative works are intangible, and thus non-rival, expressions. It does not make sense to regard them as property. Indeed, copyright law does not regulate the enjoyment of such creative works.

However, mislabeling them as property has enabled these intermediaries to fool society into accepting extensions of copyright monopolies, contradicting their very purpose: to make more creative works available to the society, after a short period of deprivation.

In the digital age, it became much easier for anyone to create and publish creative works. It could have been a great benefit to society.

But mislabeling such works as property has enabled the same intermediaries to fool society into accepting such insulting and costly measures as Digital Restrictions Management (DRM) to patrol and police uses of the works, to preserve the intermediaries' obsolete business model.

DRM amounts to using general-purpose and specialized computers, such as audio and video recorders and players, to stop the public from using works in ways that are permitted by copyright law, but that might enable future copyright infringement, regardless of whether any infringement actually takes place or is even planned.

The public at large is thus proclaimed guilty of pre-crime, and denied the benefits of technological advancements, of fair use rights and even of the public domain.

Welcoming into law the presumption of guilt for whatever rules the intermediaries manage to encode, in the devices necessary to enjoy the creative works they publish, would turn the intermediaries into private legislators and law enforcement agents in the digital age.

Having just visited Canada, I could have been fined and imprisoned if Bill C-61 was in effect, just because I carry in my computer movies, songs, and software needed to play them, even though copyright law does not require a license for such works to be enjoyed or carried.

I would be disgusted if Canadian legislators were to pass a law that required major sacrifices of everyone for the sake of promoting (my?!?) interests whose very legitimacy can only appear to be justifiable through the mental contortions of "intellectual property".

I, as author and copyright holder, do not side with the intermediaries that claim to defend my interests when they lobby for this law.

Please do not move copyright law farther away from the goal of every law: benefiting the society that establishes it.

Thank you,

Alexandre Oliva

Copyright 2008 FSFLA

Permission is granted to make and distribute verbatim copies of this entire document without royalty provided the copyright notice, the document's official URL, and this permission notice are preserved.


On the constitutional preference for Free Software

On the constitutional preference for Free Software

Alexandre Oliva <lxoliva@fsfla.org>
Pedro Antonio Dourado de Rezende

Law number 11871 of the Brazilian state of Rio Grande do Sul (RS), published on December 19, 2002 is known as the Free Software Law, despite the fact that it does not define Free Software and apparently uses it as a synonym with open software. This law is being challenged on constitutional grounds, under case number 3059/03.

It is up to FSFLA – Free Software Foundation Latin America (in process of creation in Argentina and still not legally represented in Brazil, joining the network of foundations formed by FSF – Free Software Foundation in the United States of America, FSFE – Free Software Foundation Europe and FSFI – Free Software Foundation India) to speak up regarding the conceptual inaccuracies present in the law and in the case records. These include the meaning of Free Software, a term coined by the FSF, which aims at promoting and defending software licensed in this modality, just like its sister organizations do, among them FSFLA.

Free Software is a matter of freedom to its users: freedom to run, copy, distribute, study, modify and improve the software. Just like freedom of speech, these are not necessarily unlimited freedoms, but nevertheless freedoms with valuable purposes for society and the common good. Restrictions to these freedoms may be acceptable, unlike the definition in the law, such as restrictions aimed at guaranteeing the same freedoms to third parties, restrictions that preserve credit to the authors of the program, and others that do not limit, in practice, the enjoyment of the freedoms. In particular, Free Software does not restrict the commercial use of the software, nor the commercialization of development, distribution, support, training and other services.

It is true that FSFLA cannot position itself favorably to the law, since it creates confusion and doubts regarding the terms Free Software and open software. It defines "open software" in terms incompatible with its own justification, thus rendering itself ineffective, putting on the same level of preference the categories of Free Software (which is distributed under licenses that respect these freedoms), and proprietary software (that is distributed under licenses that do not). As we will argue, the choice of Free Software complies much more than that of proprietary software with the constitutional principles established for the Union, the public administration and the economic order, such as sovereignty, efficiency, economy, publicness, impersonality, free market, reduction or inequalities, complete employment and favoring of local small businesses.

The freedom to run the program for any purpose means there is no need to purchase new licenses for every new computer, contributing to the economy principle. Combined with the freedom to redistribute the program, it implies a single investment by the public administration may benefit all of its citizens, contributing to efficiency. The freedom to study the software is essential to sovereignty and, together with the freedom to distribute, to transparency, required by the publicness principle. The freedom to modify the software is important not only for sovereignty but, combined with the freedom to distribute the software, also for economy, impersonality, and free market, since the public administration does not end up at the mercy of a single vendor. When modifications in the software are needed, the public administration may hire any third party to perform the needed service, instead of being required to favor, repeatedly and indefinitely, the vendor of a non-Free Software option, or to incur the costs of a migration. It can favor small local businesses, which reduces inequalities and helps achieve the goal of complete employment.

In the remainder of this paper, we provide more details on the definition of Free Software, then explain the dynamics of the Free Software markets and demonstrate, on these grounds, how the preference for Free Software follows directly from the application of the aforementioned constitutional principles established for the Union, the public administration, and the economic order.


Free Software is defined by the FSF in its web site (http://www.fsf.org/licensing/essays/free-sw.html). The same definition is present in the web site of its main project, that of the GNU Operating System (http://www.gnu.org/philosophy/free-sw.html), and in FSFLA's web site (http://www.fsfla.org/?q=en/node/19). A summary of the Free Software definition follows.

Free Software

Free Software is not about price, it's about freedom. We understand software is Free when it is licensed under terms that respect every and each of the following freedoms for its users:

  • The freedom to run the program, for any purpose (freedom 0).
  • The freedom to study how the program works, and adapt it to your needs (freedom 1). Access to the source code is a precondition for this.
  • The freedom to redistribute copies so you can help your neighbor (freedom 2).
  • The freedom to improve the program, and release your improvements to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this.

By source code, we understand the preferential form for studying and making modifications to the program. It is written in a human-readable programming language, normally including documentation needed to understand and maintain the program. Programs written in certain programming languages cannot be executed until they are transformed into another form, called object code, which is more appropriate for efficient execution, but lacks the documentation and relative ease of understanding present in source code.

Just like freedom of speech imposes some restrictions, such as responsibility about what one says or writes and the prohibition of anonymity in Article 5.IV in the Constitution, some restrictions to software-related freedoms are compatible with the definition of Free Software, when they contribute to a greater good.

For example, requiring that a software or modified versions thereof be distributed only under the same license as the original version is an acceptable and even desirable restriction, since it is used to ensure that derived versions of a piece of Free Software also be Free. Several other acceptable restrictions are intended to guarantee freedoms to third parties.

Requiring copyright notices to not be removed is also an acceptable restriction, not only to give credit to the software authors, but also to ease auditing about the origins of the software. This and other restrictions which intend to give credit to the software authors and which don't actually limit the enjoyment of the freedoms are acceptable.

Open software, according to the law

It is quite obvious that the definition of open software in the law is based on the Free Software definition, even though the term open software (software aberto, in the original) is sometimes used as a translation of the English term Open-Source Software, defined at http://opensource.org/docs/definition.php in a very different way. We understand that it has a similar, but not identical, meaning as Free Software. Open software, defined as follows in the law, does not match any of the two definitions:

"By open program we mean a program whose industrial or intellectual property license does not restrict in any way its cession, distribution, use or alteration of its original features, granting the user unrestricted access, without additional costs, to its source code, permitting partial or complete modification of the program for improvements or adequacy."

We notice that the law refrains from defining Free Software, but it doesn't refrain from using the term, raising doubts on whether it intends that it be understood as synonym with open software, as defined in the law, or according to the FSF definition.

At some points it appears to be the intention of the law to use Free Software and open software as synonyms; in others, it appears to attempt to distinguish between the terms, as in Article 3.II, which says "free program and/or open-source code", terms commonly used as synonyms with Free Software and open-source software, respectively.

The use of so many distinct terms that are well defined in the software community with an apparent synonymy intent in the law makes room for a theoretical risk that, if a license is created that complies with one definition, but not both, a legal vacuum be established in which it is not possible to justify the preference or the non-preference for software licensed under such terms.

Anyway, the remainder of the discussion applies to software that complies equally with the definitions of Free Software and Open-Source Software, such is the similarity between the meanings of both terms. Because of our preference to evoke the freedoms rather than the mere availability of the source code, we use the former and older term in the remainder of the text, but we hope that it is understood that the arguments apply to both, but not to the open software definition in the law.

About restrictions

The law fails more gravely in requiring the license to "not restrict in any way its cession, distribution, use or alteration of its original features", a condition that reduces the amount of software licensed in compatible terms with the definition in the law to nearly zero. Even the most liberal Free Software licenses, such as the X11, MIT and the various BSD licenses, require at least the Copyright notice to be retained, leaving room only for the theoretical possibility of software released under such liberal licenses that don't impose any restriction whatsoever, or the use of software that has become public domain and still has its source code available.

Since law 9609/98 (Brazilian Software law, a special case of copyright law) establishes that copyright over software lasts for 50 years, and software hasn't existed for much longer than that, it makes sense to assume that the law was not intended to privilege the minuscule amount of software developed in the early days of electronic computing, in detriment of all the software industry that flourished from then on.

We believe, based on the justification presented when the law was proposed, that it makes more sense to understand that there was a mistake in the definition of open software in the law, and we thus dispute the law's definition, in disagreement with the common use of the term and the usual definition of Free Software that it resembles so much, and suggest the interpretation of the term in the law through its meaning in the Free Software definition.

Free Software and commerce

Before proceeding to arguing about the constitutional obligation of preference for Free Software, it is worth clarifying a common doubt regarding Free Software's economic viability.

By "commercial software" we denote software that is or was developed, maintained and/or distributed as a business activity, and not as a synonym with proprietary software.

Businesses based on the sale of software licenses are quite common, but even more common are businesses based on services related with software. Most software developed in Brazil and all over the world is not off-the-shelf software, but rather software developed specifically for one user or client. In some cases, the user herself develops the software; in others, the user hires a services vendor to develop the software, negotiating who retains copyright over the software. If the developer retains copyright, it is necessary to determine licensing terms for the customer to make use of the software, as per article 9 in law 9609/98:

"The use of computer programs in the Country requires a license contract."

Nothing stops the developer to choose terms compatible with the Free Software definition for the license, and still be compensated for services such as development, quality assurance, packaging and distribution that it has rendered, as well as for any warranty that might be offered.

It is worth at this point to dispute the common, fallacious argument that Free Software does not offer warranties: proprietary software normally offers warranty only on the media in which the software is distributed, and not on the program's behavior. For warranties on the behavior, also called support services, it is necessary to hire such services separately, both for proprietary and Free Software.

Just like in the case of custom-developed software, whoever develops software with the intent of offering it to a wider market, licensing multiple copies of the software to various license buyers, may elect licensing terms which are compatible with the Free Software definition. A few examples of commercial Free Software are MySQL AB's MySQL database software, Trolltech's Qt graphical user interface library, as well as several products or components from bigger companies such as Red Hat, Novell, Sun, IBM and Apple. Even Microsoft, though most of its software is proprietary, has occasionally developed free software.

Free Software licenses require the absence of cost for the exercise of the freedoms they respect, among them those of copying and distributing the software, with or without modifications. The copyright holder, not being subject to the license terms that apply to the licensees, may require payment not only for the services of copying and distribution, but also for the act of licensing the software to its customers. As long as any such customer is allowed to distribute the software to third parties, extending them a license without cost, there's no violation of the Free Software precepts.

We thus conclude that there is no obstacle to profit through licensing under terms which are compatible with the Free Software definition. Quite the converse, the definition was created in such a way as to enable free trade, not particularly of licenses, but of services such as development, support, training, tuning, among others.

In fact, proprietary software promotes free trade only up to the moment a user makes a choice for one particular piece of software. From that point on, the user enters a monopoly regime. She depends exclusively on the chosen-software's vendor to obtain changes or fixes needed in the software.

In the case of Free Software, not only is initial offering of the software subject to free competition, but also the offering of support, including in support services such as changes and fixes.

Such competition is only possible because the user is free to distribute the software in the form of source code to an aspiring competitor to the original vendor. This grants the potential competitor the ability to study and modify the software and to distribute the modifications back to the user. Nothing in the Free Software definition stops the competitor from being compensated for these services.

Free competition is thus established around the same software, such that competitors that offer the best cost/benefit ratio prevail, while the user is free to switch vendors or hire employees for internal support, without fear of having to incur costs and difficulties related with migrating to software that isn't entirely compatible. In the case of proprietary software any of this often involves the need for conversion between undocumented, proprietary file formats.

On the constitutional preference for Free Software

Starting from the principles of sovereignty, economy, efficiency, publicness, and impersonality, that the Constitution establishes for the Union and the public administration, as well as the principles established for the economic order, we will argue that the Constitution already requires a preference for Free Software.

On the constitutional principles

We present below some snippets of the Constitution that establish the principles we use in our argumentation.

"Art. 1 The Federative Republic of Brazil, formed by the indissoluble union of States and Cities and the Federal District, consists of a Democratic State with Rule of Law and has as foundations:

I - the sovereignty;


Art. 37. The direct and indirect public administrations of any of the Powers of the Union, the States, the Federal District and the Cities will abide by the principles of legality, impersonality, morality, publicness and efficiency [...]

Art. 70. The accounting, financial, budgetary, operational and patrimonial inspection of the Union and direct and indirect administration entities, as to legality, legitimacy, economy, application of subventions and surrender of income, will be performed by the National Congress, through external controls, and by the internal control system of each Power.


Art. 170. The economic order, founded on the valuation of human work and the free initiative, is intended to ensure to all a respectful existence, as per the directives for social justice, observing the following principles:

I - national sovereignty;


IV - free market competition;

V - consumer's defense;


VII - reduction of regional and social inequalities;

VIII - seek for complete employment;

IX - favorable treatment for small businesses constituted under Brazilian law with head quarters in the country.


For the benefit of readers unfamiliar with the Brazilian juridical doctrine, we will attempt to clarify the meaning of some of the principles, that are not actually defined in the Constitution.

Sovereignty has to do with the country not being submissive to foreign interests, and with taking its decisions with its own and its citizens' best interests in mind, in such a way that they do not end up controlled by foreign interests.

Impersonality has to do with granting the same treatment to individuals in the same conditions, and different treatment to individuals in different conditions, without undue favoring or disfavoring.

Morality has to do with the public administrator having to be an example of ethical and moral behavior; with never using a public position for personal advantage.

Publicness has to do mainly with transparency, with publishing all acts of the public administration, as a means of enabling the society and the public administration itself to exert their control. There are limits to what could or should be published, related with privacy and national security, for example.

Efficiency has to do with striving to make the best use of the limited resources available to the public administration for the benefit of the citizens.

Economy is very similar to efficiency, in that it has to do with not spending resources unless a reasonable payoff is expected. Some sources even consider them as synonyms.

Economy and efficiency

Free Software freedom #0, the freedom to run the software for any purpose, does not make room for charging for licenses on a per-computer, per-processor or per-office basis, so common to proprietary software. As a consequence, it is not necessary for the public administration to go through public tender processes every time it needs the same software for new computers. Economy and efficiency are not only achieved by the lack of need for multiple licenses: the need for the public tender itself is normally dispensable, since the license can often be obtained without any cost.

Add to this Free Software freedom #2, which enables the public administration to distribute the licensed Free Software to all of its citizens, contributing to the improvement of their quality of life, and to other offices in public administration. The efficiency of the investment to obtain Free Software proves to be much higher than that to obtain proprietary software licenses, even in cases in which the up-front investment needed to adopt Free Software happens to be higher.


Free Software freedom #1, which enables one to study how the software works, is essential to ensure the sovereignty of the public administration. In the absence of source code, it is impossible to verify whether the program does what it claims to do, no more and no less. The user is completely at the mercy of abuses that vendors might choose, or be forced by their government, to commit.

With the possibility of inspecting source code and, more than that, of running object code created from the inspected source code, the risk of such abuses is reduced because detecting them becomes much easier.


Since the public administration often processes citizens' data, in situations in which citizens cannot refrain from offering their data, it is up to the public administration to ensure the correctness of the processing, the security and safety of the information and the permanence of access to the data. The first two features can only be ensured by inspection of the source code enabled by freedom #1, whereas the last one depends on adoption of data storage standards that are ideally open, but that must at least be well documented and free from restrictions to their implementation. While proprietary software often seeks to imprison their customers in closed, undocumented formats, in the case of Free Software it is always possible to obtain the format specification, in the worst case by studying the source code.

Publicness and sovereignty

Freedom #1 (study), associated with freedom #2 (redistribution), is a prerequisite to transparency, a requirement for publicness, since it permits the public administration to distribute the software, in source and object code forms, to any citizen who wishes to audit it. In the absence of such freedoms, it is impossible for the public and the public administration to verify the trustworthiness of the electronic ballot boxes used in Brazil, which means they must either blindly trust the vendors of such equipment, or protest against the lack of transparency of the process and the risks to sovereignty.

Economy and sovereignty

Another aspect of freedom #1, that respects the freedom to adapt the software, is essential to economy and sovereignty. Using proprietary software, if the vendor refuses to make a change needed by public administration, the only alternative is to pay for the development of a new software that fulfills the needs, possibly wasting all the investment that went into the previous software. In the Free Software case, the public administration can make changes internally, or take advantage of freedom #2 (redistribution) to hire third parties to do the development work needed for the changes, thus preserving earlier investments.

Impersonality and free market

The combination of freedoms #1 (adaptation) and #2 (redistribution), with regards to the possibility of modifying the software by the public administration or third parties, is exactly what favors Free Software with regards to the impersonality and the free market principles.

When the public administration purchases proprietary software, it not only puts itself at the vendor's mercy with regards to services such as making changes, but also as to support in a wider sense. In other words, the decision to license proprietary software implies favoring its vendor in any subsequent support services related with the program. Justifications, offered in public tenders, of standardization in software adoption also favor a single vendor, a favoring that is incompatible with the impersonality demanded from the public administration.

The adoption of Free Software by the public administration, on the other hand it to decide which vendor to hire to perform each needed service related with the software. Any person or company may qualify to offer the service, without any additional authorization by the original vendor to get access to the source code which enables maintenance and knowledge acquisition related with the software. This is maximum compliance with impersonality and the free market.

Allegations that the preference for Free Software conflict with impersonality are fallacious, based on the false premise that the licensing software in terms that respect users' freedoms is not possible for some software vendors. Quite the contrary, any vendor that got itself in a situation that prevents it from offering its software under a freedom-respecting license, such as the use of proprietary software from third parties as part of their own software, did so by their own choice, knowing that this restriction would be a limiting factor for its customers and itself. it does not amount to a reasonable argument against the preference for Free Software implied in the Constitution.

Small businesses, inequalities, and employment

The freedom afforded by the respect to the principles of impersonality and free market enables the state to promote the participation of local small software businesses where they currently stand no chance of competing with the monopolies that dominate the software market.

The careful choice of promoting such Free Software businesses can be used to comply with other economic order principles, such as the reduction of regional and social inequalities. Preferring local businesses over foreign monopolies also complies with the seek for complete employment.

Consumer's defense

Since the sale of Free Software licenses is not regarded as a reasonable business model, Free Software businesses tend to be based on services such as development and support. Such businesses are required by consumer defense law to offer warranty over their services. This contrasts with proprietary software commercial licenses whose warranty covers only the media that carries the software, and that require separate contracts for support services.

Free Software consumers thus tend to be better protected than proprietary software consumers.


Gratuities and job offers to current or former public administrators that chose proprietary software during their administrations are not unheard of.

Companies that offer such advantages recognize that the choice for their software has long-term favorable effects to their companies. Public administrators must reject such offers to comply with the principle of morality. Privileging the adoption of Free Software is a good way to avoid the temptation to infringe on this principle.

Distributing improvements

In order to preserve the constitutional principles discussed above in face of the possibility of modifications to the software by the public administration itself, freedom #3 (distribution of modifications) is necessary, in addition to freedoms #1 (adaptation) and #2 (redistribution), otherwise it would not be possible to distribute the modified software.

TCO and economy

In discussions on this topic, references to studies about Total Cost of Ownership (TCO) are a frequent argument against the common sense perception about the potentially maximum economy inherent to licensing regimes that allow for the freedom to use the licensed software at no charge.

It is worth pointing out that the result of such studies invariably reflects the choice of metrics to evaluate what constitutes the so-called "total cost of ownership", and that casuistic choices may lead to any kind of result.

Particularly, when the choice combines (a) the cost of migrating information systems built upon a regime of digital standards, formats and codes for which knowledge is restricted and only available under restrictive licenses, which induces dependencies of clients on vendors, to a regime of free and disentangled standards and codes; (b) the cost of training to install and operate new systems, in a market naturally heated by the growing demand for semiotic autonomy; and © excessively-limited temporal and causal horizons to account for maintenance of existing proprietary systems, the result can easily contradict common sense, under a false aura of authority lent by voluminous statistics.

Finally, it is worth observing that studies with such casuistic metrics abound in specialized literature, as a general rule sponsored by vendors interested in maintaining the status quo of their contractual regimes and their monopolistic positions in the marketplace. This sponsorship is not always brought up when such studies arise in references in administrative or juridic literature.

Free Public Software

Although it is not always dealt with by laws under debate, it is worth pointing out that the distribution of software by the public administration should also be done, as a general rule, in the form of Free Software, not only to comply with the publicness principle, but also with economy, enabling people and companies to voluntarily contribute to the improvement of the software, relieving the public administration from at least part of the needed investments to satisfy their own needs and those of citizens.

Arguments that such licensing, if offered without cost to any person or company, would represent administrative improbity or improper favoring do not seem reasonable to us, since impersonality is not infringed when the same profit possibility is granted to every person and company. Quite conversely, it is state investment enabling economic development.

Denial of the freedoms

Denying or significantly limiting freedom #0 (execution) contradicts the principles of economy and efficiency.

Denying or significantly limiting freedom #1 (study and adaptation) contradicts the principles of sovereignty, economy, publicness, and morality.

Denying or significantly limiting freedom #2 (redistribution) contradicts the principles of publicness, economy, efficiency, morality, and the economic order principles.

Denying or significantly limiting freedom #3 (distribution of improvements) contradicts the principles of publicness, economy, efficiency, morality, and the economic order principles.

It remains clear, thus, that respect for the 4 freedoms is necessary for compliance with the constitutional principles that guide the Union's and public administration's behaviors, therefore the constitutional preference for Free Software is proved.

On laws that codify preference for Free Software

As we have shown, the Constitution establishes principles for the Union, the public administration and the economic order that lead to choosing Free Software.

One has to agree that, even though the evidence is clear once the arguments are formalized, the comprehension of the mechanics of Free Software is not easily accessible to minds used to a market based on the proprietary licensing model.

This is the context in which laws such as that of RS appear, proposed by a few people who understood the extent of the ongoing constitutional violation and sought, through a more direct formalization of the thoughts exposed herein, to fix this distortion and subject the public administration, at least in the levels that they could reach, to compliance to constitutional principles.

Even though many such laws have made the same definition mistake as the RS law that this case is about, pretty much voiding their juridic effects, they served and serve the purpose of guiding decisions on software acquisition by several levels of public administration where they apply, even because many of the decision makers did not realize that the definition is in error and/or follow the spirit of the law when the equivocal letter rendered them inoperative.

Due to the way in which such laws have defined the software class that they intend to be Free Software, they do not seem to be leading to compliance with the constitutional principles for the Union, the public administration, and the economic order, so there is indeed room for questioning their constitutionality.

Should, however, they use the correct definition, with the arguments exposed herein, it appears to us that it would be difficult to argue against their constitutionality, since they would only codify in a more immediate way what the Constitution already codifies implicitly.

We thus suggest to and request from the powers that can correct or revise such laws to use a correct definition to do so. Our suggested writing follows:

"In order to comply with the constitutional principles of economy, efficiency, publicness, sovereignty, morality, impersonality, free market, consumer's defense, reduction of regional and social inequalities, seek for complete employment and favorable treatment for small businesses constituted under Brazilian law with head quarters in the country, the public administration must prefer software licensed under terms that offer access to their source code and permits the user to run it for any purpose, to study it, adapt it and distribute it, with or without modifications, at least under the same terms in which it was received, with a possible permission for distribution under different terms. Restrictions to such permissions are acceptable with purposes of ensuring the offer of the same freedoms to third parties, for example, the requirement that any distribution be made under the same terms; with purposes of preserving credit to authors, for example, the requirement of preserving copyright notices; and other restrictions that do not affect significantly the actual enjoyment of such permissions, for example the requirement that a certain sentence be included in promotional material or advertising of software derived from the original.

By source code we understand the preferred form to study and modify the software, including documentation normally present in source code. In the case of software in the form of object code, we understand its source code as all the modules it contains, definition and interface files associated with them, files used to control compilation and installation of the object code, i.e., anything that may have been needed to create the object code and whatever else is needed to enable its execution in the target environment, starting from its source code, from general-purpose tools that, although not part of the program, are used in the process of creating the object code, and from components normally distributed as part of the operating system for which the object code was created."

If there's any need to name the class of software covered by the definition, we suggest the term `Free-Governments Software', to avoid potential doubts or confusions arising from potential differences from the less-formal definition of the term `Free Software'. We'd prefer people to focus on the freedoms rather than on often-misapplied labels, so we recommend leaving the term out if at all possible.

Until such corrections take place, we position ourselves publicly contrary to the law, since we profoundly dislike the equivocal definition that was meant to be that of Free Software, even though it uses a similar and less appropriate term open software. We understand, however, that our dislike obviously is not an argument to make the law unconstitutional: the bad writing, even if it does not codify the implied preference in the Constitution, does not contradict it either.

While the spirit of the law is followed, even if the letter is ineffective, the law will serve the common good, bringing great savings to the public coffers, if not in the very short term, because of potentially high migration costs, certainly in the long term, in which the advantages of a free market for services and zero cost for additional licenses prevail. Since this is Economic Law matter, we understand that deliberations regarding such choices are not limited to the Union, but also to states and cities.

We argue, thus, that the law is constitutional, even if its juridic effect is nearly nonexistent.

Alexandre Oliva
FSFLA Secretary and Brazilian citizen

Pedro Antonio Dourado de Rezende
FSFLA Board member and Brazilian citizen


We wish to thank the contributions of Federico Heinz, FSFLA President and Beatriz Busaniche, FSFLA Treasurer, both Argentinian citizens, and Richard M. Stallman, FSF (USA) President, in the preparation of this document.

Verbatim copying of this document is permitted in any medium, as long as this note is preserved.

DRM: Defective By Design

In defense of our rights and of freedom in the digital world, FSFLA denounces that Digital Restrictions Management (DRM) systems are Defective By Design.

Join the Anti-DRM Campaign team in Latin America and Defective By Design.

  1. What is DRM?
  2. Where are they?
  3. Who controls them?
  4. How do they affect Free Software?
  5. Why are DRM Defective by Design?
  6. Which rights do they violate?
  7. Universal Declaration of Human Rights
  8. Actions in march

What is DRM?

DRM (Digital Restrictions Management) are technical mechanisms which restrict the user's ability to access and copy works distributed in digital formats. Although their promoters like to call them "Digital Rights Management" systems, when we analyze their goals, it becomes obvious that they're only useful to manage restrictions.

Promoters of these systems argue that they are needed for the authors to be able to exercise their copyright in the digital world.

They do not tell us, though, that these systems may be (and actually are) used to restrict works which aren't under copyright, or to restrict them further than copyright law allows for. They also keep silent on the fact that the implementation of DRM is not something authors can do by themselves, but only through large publishers, record companies and producers, over which authors have no control.

There are different DRM Mechanisms, developed by different companies, but they all share some characteristics:

  • they detect who, when and under which conditions gains access to each work, and reports this information to the distributor;
  • they irrevocably grant or deny access to the work, according to rules which can be unilaterally changed by the distributor;
  • when they grant access, they do so under restrictive conditions, unilaterally imposed by the distributor of the work, regardless of the actual rights granted by law to the author or the public.

A particular feature of DRM is that its implementation isn't just technical, it includes legislative aspects: their proponents are pushing, through worldwide lobbying campaigns, bills that aim at forbidding the production, distribution an sale of electronic devices unless they are equipped with DRM, and criminalizing any effort to circumvent DRM, regardless of whether this circumvention actually infringes on copyright or not.

Where are they?

DRM are being included on many kinds of digital devices, without even telling buyers about the consequences

The electronic infrastructure needed to implement DRM is being sold by the industry under the tempting name of "Trusted Computing" (TC). The name suggests that a device equipped with this technology can be trusted by the user. When we realize that the main function of TC is to enable DRM to restrict the user, however, it easy to realize that "Treacherous Computing" is a more accurate interpretation of the acronym.

There are many devices equipped with treacherous computing hardware on the market. Some of them are computers, of course, but also DVD players, audio players, phones, televisions, radios, toys, answering machines, photocopiers, printers and many others.

If some bills being pushed by parts of the industry actually become law, it will be forbidden to produce or sell any device which can record or play sound, video, text or any other form of expression, unless it's equipped with hardware suitable to DRM implementations.

Even before the hardware infrastructure for it becomes omnipresent, as their proposers wish, there are many software-only DRM systems which, while not strong enough to effectively restrict copying, are annoying enough to complicate the life of a person who, for example, wants to listen to her own CDs on her own computer.

Most proprietary media players actually on the market include quite sophisticated DRM implementations without hardware support.

Who controls them?

The name "Trusted Computing" is obviously designed to evoke the feeling that these systems allow us to exercise better control over what the devices we own do.

If this were true, of course, we'd have to question the motivations behind the demand that every single digital device be equipped with this technology, or that its circumvention be criminalized.

This attitude shows that the real objective is to take control of the devices *away* from the user, and to transfer it to third parties: the software provider, the publisher, the record company, etc. It is them, not the public nor the authors, who operate the servers and distribution chains that make DRM systems work.

Put it another way: these mechanisms, which are able track what we listen to, read, look at and produce, and can even prevent us from doing so, are being run by strangers who use them to exercise control over us.

In the vision of DRM proponents, this control shall become even stronger than law itself: if the mere circumvention of DRM becomes a crime, companies turn into private legislators. They can implement arbitrary restrictions and controls on the works, without any regard for what the law actually allows, and then sue anybody for the simple act of attempting to exercise his or her own rights.

For instance, there are many countries in which people have the right to make copies for private use, even for works that are under copyright. But if the user can't make a copy without circumventing a DRM system designed to prevent it, the company who controls the DRM has just effectively suppressed a legitimate right of the user, since any attempt to exercise this right turns him into a criminal.

Laws of this kind are already in effect in some countries, thanks to the pressure exercised by big media companies, and in spite of the opposition of public rights' organizations and of many authors.

The more prominent examples of such laws are the DMCA (Digital Millennium Copyright Act) in the USA and DADVSI (Droid d'Auteur et Droits Voisins Dans la Société de l'Information) in France. Free Trade Agreements with USA, such as the Free Trade Area of the Americas, require as a non-negotiable clause that member countries adopt legislation supporting DRM.

How do they affect Free Software?

DRM implementations and the legislations that legitimize them are in direct contradiction with Free Software ideals.

Laws such as DMCA and DADVSI not only turn those who circumvent DRM into criminals, they even enable content distributors to forbid the development of software to access those works, which violates Free Software developers' freedom of speech.

For Free Software users, this means that we can't legally run Free Software to access digital content, even though we wouldn't be violating any copyright by doing so, thus denying us our right to free access to culture.

In this way, distributors choose for us which software we should use if we want to access their contents.

The access to digital content under DRM using software modified by the user is not allowed, and generally requires the use of proprietary operating systems. This places a serious obstacle to the production and dissemination of Free Software.

Why are DRM Defective by Design?

When a device equipped with DRM doesn't do what the user expects it to do, it's not because of a mistake. It's due to the device being deliberately designed to prevent the user from doing it, granting the publishers' desires regardless of the users' rights. These defects are not accidents, they are part of the design, so the device is defective by design.

Which rights do they violate?

Some of the rights violated by DRM systems are:

The right to read and to participate freely in cultural life
DRM enables third parties to keep track of everything we see, hear, read and express in digital formats, and lets them monitor, control and even keep us from doing it.
The right to privacy
In order to grant or deny access to each work, those systems need to watch and communicate what we do. Thus, third parties get information about what, how and when we read books, listen to music, listen to radio, watch movies or access any digital media.
The right to make copies under particular circumstances
many copyright legislations recognize people's right to make private copies of any work, including the right to make backup copies, copies to enable access to the work on different devices, and even copies to share with people who are close to you, provided there is no commercial involved. These rights are rendered completely useless by DRM.
The right to produce derivative works
derivative works are a common and basic phenomenon in cultural production. Many works are derivative works from others, in some way. This includes translations, re-mixes, parodies and others. The very basic process of deriving works from materials who are enclosed in DRM becomes impossible.
Criticism and commentary, including the right of free speech, particularly by journalists
anybody working on literary, cinematographic, musical or political criticism uses quotation as the basic resource for commenting published works. DRM imposes technical obstacles to this quoting, which amounts to putting the freedom of speech in shackles.
"Fair use" and the copyright exceptions
this salient feature of US jurisprudence is another victim of the implementation of DRMs. Copyright laws leaves room for several exceptions for educational uses, or for handicapped people who may need to make copies of works in order to access them (for instance, to load them into a braille reader, or to convert text into an audio book). This recourse is still valid, in law, but DRMs make it inaccessible.
Public domain
copyright has an expiration date, DRMs don't. So, when a work under DRM finally becomes part of the public domain, the restrictions will remain in place, still preventing users from accessing and copying material that is no longer under copyright. The same happens with works which already are in the public domain, yet are deemed inaccessible to people when someone distributes them under DRM.
The presumption of innocence
DRMs assume citizens are guilty until they get proof of their innocence, preemptively denying them a number of rights, without them having committed any crime.
Freedom to tinker
the development and use of devices for circumventing DRM becomes a crime, even when it's done for research purposes or in order to access legally acquired contents, without any copyright infringementinvolved.

Universal Declaration of Human Rights

Universal Declaration of Human Rights:

Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 11
1. Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 27
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

Actions in march

The Free Software Foundation started the Defective By Design campaign to publicly denounce the DRM threat. Join the campaign as http://defectivebydesign.org/

As part of the campaign, you will find the "Et Tu Bono" letter, by means of which activists for digital freedom will try to involve Bono in the public fight against DRM. Sign the petition!

At Free Software Foundation Latin America we have much work to do about DRM. Join our campaign Team!.

Campaign Resources and work in progress at our wiki.

Last update: 2008-02-21 (Rev 2811)

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