At first blush, the case of Kirtsaeng v. John Wiley & Sons
like an obscure battle over the marketing of textbooks in the US with
little relevance to the free software community. But one need not look
deeply to realize that the US Supreme Court's recent ruling
has some interesting implications. For years, it appeared that
there was no resistance to increased use of copyright law to protect
threatened business models. With the ruling in this case, the power of
copyright holders has been pushed back slightly, and an important right has
The case in question starts with Supap Kirtsaeng, who figured out that he
could buy textbooks in Thailand for resale in the US.
Those books are sold much more cheaply in Thailand, offering a classic
opportunity for arbitrage and a quick profit. The publisher of those
books, John Wiley & Sons, sued, claiming that importing those books
into the US was a violation of its copyright, despite the fact that the
books had been legitimately published and sold in Thailand with Wiley's
Kirtsaeng responded that the books, like most copyrighted materials, were
covered by the first sale doctrine; once Wiley had sold the books, it had
exhausted its right to control their fate.
Wiley's interesting claim in this case was that first sale does not apply to
are manufactured outside of the US. Appeals courts in the US agreed with
this position, but the Supreme Court did not. Its conclusion (by a 6-3
ruling) was that the place of manufacture and sale was not relevant to
copyright law and that the import and resale of the books was a legal
activity. So, for now, the first sale doctrine lives and cannot be
eliminated simply by manufacturing an object abroad.
This ruling matters for a couple of reasons. One is that software, too, is
covered by copyright law, and it is often included in products manufactured
all over the world. Copyright law is often used in an attempt to control
what can be done with a larger product; the implications of eliminating
first-sale rights on products with important copyrightable components
could open the door
to no end of possible horrors. Consider, for example, the following text from
Technology companies tell us that “automobiles, microwaves,
calculators, mobile phones, tablets, and personal computers”
contain copyrightable software programs or packaging. Many of
these items are made abroad with the American copyright holder’s
permission and then sold and imported (with that permission) to the
United States. A geographical interpretation would prevent the
resale of, say, a car, without the permission of the holder of each
copyright on each piece of copyrighted automobile software. Yet
there is no reason to believe that foreign auto manufacturers
regularly obtain this kind of permission from their software
component suppliers, and Wiley did not indicate to the contrary
when asked. Without that permission a foreign car owner could not
sell his or her used car.
The logic that applies to a car also applies to just about any sort of
electronic gadget that one can imagine — contemporary cars, after all, can
be thought of as rather heavy electronic entertainment systems with
self-propulsion capabilities and a problematic carbon footprint. It is a
rare device indeed that doesn't
contain copyrightable pieces imported from somewhere; the thought that all
of those devices remain under the control of the copyright holder is
discouraging at best. This ruling does not eliminate that threat (see
below), but it mitigates it somewhat.
Copyright law is often employed for the protection of business models.
Over 100 years ago, music publishers claimed that player pianos were a
threat to their existence and a violation of their copyrights; the attempts
to use copyright to keep business models alive have continued ever since. So it
is refreshing to see the Supreme Court state that there is no inherent
right to protection for a specific business model:
Wiley and the dissent claim that a nongeographical interpretation
will make it difficult, perhaps impossible, for publishers (and
other copyright holders) to divide foreign and domestic markets. We
concede that is so. A publisher may find it more difficult to
charge different prices for the same book in different geographic
markets. But we do not see how these facts help Wiley, for we can
find no basic principle of copyright law that suggests that
publishers are especially entitled to such rights.
We still live in a world where publishers feel entitled to exactly such
rights: the use of the CSS encryption scheme (and associated legal battles)
to divide the DVD market is an obvious example. Perhaps it is optimistic
to hope that a statement from the highest court in the US that such rights
do not inherently adhere to a specific business model will improve the
situation. But, then, your editor tends toward optimism.
That said, there is plenty of space for pessimism as well; the upholding of
first sale does not make our copyright-related problems magically vanish.
Much of the industry appears to be headed in directions where first sale
does not seem to apply — electronic books being an obvious
example. The use of DRM schemes to restrict first-sale rights continues,
and other aspects of copyright law (such as the DMCA in the US) support
that use. The DMCA also remains useful for companies trying to restrict
what the "owner" of a device can do with it; the debate over
jailbreaking is one example. Online or "cloud-based" resources are
to no end of restrictions of their own.
And so on.
But, then, nobody ever said that the fight for freedom would be easy. One
Supreme Court victory is not going to change that situation. But it is an
important affirmation that copyright is meant to be a limited right
and not a means for absolute control by copyright holders. Those of us who
are users of copyrighted materials (i.e. all of us) have some rights too.
Comments (35 posted)
Raspberry Pi Foundation executive director Eben Upton started his PyCon 2013 talk with a complaint that
he had just been upstaged. He normally asks
the audience "who has a Raspberry Pi?", but conference organizer Jesse
Noller had "ruined that" by announcing that all
would be getting one of the tiny ARM-based computers. The Python
Software Foundation, which puts on PyCon, had arranged for
Raspberry Pi computers to be handed out to all 2500+ attendees. It also
set aside lab
space on the second floor of the Santa Clara (California)
where attendees could "play" with their new computers—complete with
keyboards, monitors, breadboards, LEDs, and other peripherals.
The Raspberry Pi, which is a
"small computer for children", came about due
to observations that Upton and his colleagues
made about the computer skills of high school students applying to study
computer science at the
University of Cambridge. In his time, anyone that had an interest in
computers could probably get their hands on one that would beep when it was
turned on and boot directly into a programming language (typically
BASIC). Everyone knew how to write the canonical program:
10 PRINT "MYNAME IS GREAT!!!!"
20 GOTO 10
When visiting a computer store, that program (or something "filthier") was
typed in on each machine; it was a "simpler time" in the 1980s,
"we used to make our own entertainment", Upton said.
The availability of those kinds of machines allowed potential students to
have a basic level of programming knowledge. But, when interviewing
applicants in 2005, they noticed that many lacked that "built-in hacker
knowledge". In addition, the 80-90 available spots were only being
contested by around 200-250 applicants, rather than the 500 or so in the 1980s
The problem, it seems, is that the 8-bit machines that were readily
available in his time no longer exist. Game consoles now serve a similar
niche, but are not programmable and are in fact programmer-hostile because
of the business models of the console makers. In addition, those 8-bit
have been "eaten from the top" by the PC. The PC is, obviously,
programmable, but users have to choose to install programming tools. This
"tiny little energy barrier" is enough to reduce the number of applicants
requisite skills, he said.
So, there is a niche available to be filled. In order for a device to do
so, it has to be interesting to children, Upton said, which means that it
needs to be able to play games and
have audio/video capabilities. It also needs to be robust, so that it
could be "shoved" into a school bag many times without breaking. It needs to
be cheap, "like a textbook", which only "shows that we didn't know what
The target price was $25, so the team spent a lot of time trying to figure out
what can be fit into a device with that price. They started with an
Arduino-like microcontroller system, but that "didn't meet the 'interesting
to children' test". After university, Upton went to work for Broadcom,
where he is still employed, though he mostly does Raspberry Pi work these
Working at Broadcom led him to a chip with a proprietary RISC core, which
the team was able to get to boot to Python. It would also do 720p video and
could hit the $25 price point. At that point, they decided to set up a
foundation. The "Pi" in Raspberry Pi is Python misspelled, Upton said,
which was done because he thought the symbol for pi (π) would make a
"fantastic logo". But it turns out that the pi symbol has never been used by the
foundation and he regularly has to explain that he does know how "Python"
Switching to Linux
As the project progressed, he realized that the team would have to write
all its own drivers for devices like network interfaces or SD card readers,
which was time consuming. About that time, Broadcom released another
version of the chip with an ARM 11 core. "There are advantages to
being on the chip design team", Upton said with a chuckle, suggesting that
the ARM was added for "unspecified business reasons". The ARM core meant
that the Raspberry Pi could benefit from the "enormous investment" that
the community has made in Linux.
The BBC Micro was one
of the original 8-bit computers that shaped many enthusiasts' early
computer experience, so the foundation wanted its computer to be called the
"BBC Nano". It approached the British Broadcasting Corporation (BBC) about
using that name several times, but were always turned down for "complicated
legal reasons", Upton said.
As part of the effort to convince the BBC,
though, a 45-second video pitch was created. Once that video got to
YouTube, it had 600,000 views in a single day, a day which Upton spent "not
working for Broadcom" and instead
"pressing F5" (to refresh the page). That night, he sat down with his wife
and realized that they had "promised 600,000 people" that "we would build
them a $25 computer", but had "no idea how to do it".
The CPU fit within the $25 budget, but there are lots of other components
that go into a computer board. Those can cost a few cents or even
more, which all adds up. It took a while, but the team finally fit the
design into the budget, or nearly. The Model A is $25, but the
more-popular Model B, which has ethernet, more
memory, and an additional USB connector, came in at $35.
Upton had just gotten an MBA degree, so he "knew all about business
models", he said with a laugh. The foundation had raised $250,000, which
could be used to build 10,000 of the devices, so the plan was to build
those, sell them, and take that money to build another 10,000. But they
started seeing danger signs almost immediately, he said. When a "buggy
beta version" of the SD card image that could only run in QEMU was
released, it was downloaded 50,000
times. That many people downloading software for hardware that didn't
exist and might not for quite some time led to the realization that the
"interest was high". Given that the lead time for more systems was three
months or so, and there was now a worry the devices would sell out in a
week, something needed to change.
Luckily, he said, they started working with two UK companies that put up
to build all of the Raspberry Pi computers that were needed. The
foundation licenses the name and "intellectual property" (IP) to those
companies who "do the heavy lifting". In the end, there were 100,000
orders on the first day, and the
millionth Raspberry Pi was sold "sometime last month".
It has been a truly amazing year, Upton said. One of the interesting
transitions that he has noted is that the content on the web site has
shifted away from mostly being about what the team (and "other adults")
were doing to get the devices
out the door. Over the last six months or so, the site has covered what
are doing with the Pi".
Saying that he wanted to "inflict" some pictures of those activities on the
audience, Upton shifted gears to show and describe what has come about
since the release of the Pi. As a "graphics hacker", he expected that much
of the interesting work would be graphics-related, but that turned out not
to be true. There are few graphics demos, though he encourages people to
The first stop on the quick tour was a "Moog-like"
synthesizer program that is available for free. The second stop
involved beer. It turns out that there
is an "enormous
overlap" between people who like programming and people who like beer, he
said to big audience cheers, which led to a number of different
projects. The computers are being
used to run both home and commercial brewing equipment using BrewPi, for example.
There is a project to assist with focus stacking
Pi, which can replace $1000 worth of photography gear for getting
better focused images when doing macro (extreme close-up)
photography. There is also a huge retro-gaming community for the
Pi. The hardware is powerful enough to emulate not only the consoles that
he played with, but can also emulate the following generation of gaming consoles
that he "complained about" because they "destroyed the era of computers
that I grew up with", he said with a grin. Art installations are
another fairly common use for the Pi, and Upton showed some lighted paper boats at
Canary Wharf on the Thames river.
"Dr. Who and space and the Raspberry Pi all in one" is Upton's description
of his favorite hack. A weather balloon with a Tardis
as its payload has been used to take pictures from 40km up. That means
that a "space program is
within the budgetary reach of every
primary school in the world".
The Raspberry Pi community has been very inventive with extras. Upton
noted The MagPi magazine,
which has type-in listings of programs, hearkening back to the 1980s.
Typing a program in has its advantages, including "learning opportunities"
There is also a Haynes
manual for the device.
The simplest cases for the
device are PDF files that you print on the "thickest paper you can get through
the printer" and fold up into a case. While the Pi is described as "credit
it is actually about 1mil off in both dimensions, he said, but in a
"fluke", both the X and Y dimensions turn out to be a multiple of the
Lego basis unit size. That led an 11-year-old girl to create a Lego case
design for which she now gets royalties. Since she is 11 years old, she
her royalties in Lego, so she "now has more Lego than me", Upton said.
There is evidence coming in that kids are using the Pi to learn to
program, he said. He showed one who is learning with MIT Scratch and noted that the
foundation is spending some money right now to get better performance for
that language on the Pi. Though he set out to try to help solve a problem
for Cambridge University, it "turns out that kids all over the world want
to learn to program". He showed a photo of some kids from Uttar Pradesh in
India using the Raspberry Pi. Those kinds of pictures give him some hope
that they are actually accomplishing something with "this tiny computer".
He noted that there "needs to be a hook" to get the Pi into a kid's life
and "apparently a lot of children like to play Minecraft". Mojang, the
company behind Minecraft, has done a port of the pocket edition to the Pi:
Minecraft Pi Edition.
That version has a socket that can be used to talk to the game world from
any programming language, which "gives kids a reason to program".
Upton put up a "Try to take over the world" map showing where the computers
have been shipped to. Taking over the world seems to be progressing well
based on that map. North America has become the continent with the largest
"run rate" (i.e. purchase rate)
in the last three months, he said, and became the largest install base as
of last month. They would like to sell "a hell of a lot more" in South
America and India, he said, but "we'll get there".
Another interesting geographical note was a change in the manufacturing
location. In the beginning, the boards were built in China,
unsurprisingly. Sony contacted the foundation and said that it could build
the boards at its factory in South Wales for the same price point. Since
September, Raspberry Pi boards have been built there, which is a "big deal"
for Upton as he comes from about 10 miles from the factory. The fact that the
"lowest-priced general-purpose computer" can be built at a factory in the
world is "good news" for anyone concerned that there would be no
manufacturing in regions like Wales.
There are several connections between Raspberry Pi and Python, starting
with the name. The chip was designed using Python, Upton said. He was on
the GPU team for the Pi's Broadcom 2835 chip, which used Python to "design the
whole damn thing". All of the multimedia IP was verified using Python
because it is "100 times quicker" to do it that way. Python and its tools
are much easier to use (and faster) than Verilog tools.
The Raspberry Pi benefits from the large body of existing Python (and other
interpreted languages) code. Python brings a whole set of applications and
tools to the ARM Linux environment. Finally, Python also provides one of
the teaching languages for the device. The device supports Logo and
Scratch for the youngest children, and will always support C and C++ for
people who "want to get close to the metal", but Python has a special place
as a learning language. Upton said that Python allows educators to tell
children "learn this language" and "you will be on a smooth curve" leading
to a language that lots of companies program in. There are no
discontinuities in that curve, he said, which is important because it is those
steps where students get lost along the way.
Wrapping up, Upton had three more topics on his mind. At some point
"soon", the Pi team will need to decide between Python 2.7 and 3.3. It is
already a bit confusing as some packages (e.g. PyGame) are only available
for one of the two. He is also looking forward to PyPy as a way to get better performance out of
the fairly modest Pi processor. Beyond that, the "boot to Python" idea is
still floating around, though it is not yet clear what the best teaching
environment for the Pi will be.
In closing, he hoped that all of the new users in the room
would visit raspberrypi.org and
report back on what they did with Raspberry Pi.
Many of the examples Upton gave are not particularly Raspberry-Pi-specific,
in that they could run on any Linux system. But the Pi provides a
convenient package, with compact size, low weight, and lots of connectivity
options, that makes it a nice target. While the GPU drivers leave a lot to be desired and the USB
driver is a mess, it is still a rather interesting
device—particularly at its price point. Could something better have
been made? Perhaps, but it would take a dedicated group of folks to get
together to do so. Upton and the Raspberry Pi Foundation have made their
mark, some friendly competition would make things even more interesting.
Comments (28 posted)
Many pixels have been expended in the discussion of contributor agreements
that transfer copyright from developers to a company or
foundation. But, for developers in many projects, the discussion is moot,
in that the requirement for an agreement exists and the papers must be
contributions to the project can be made. But, even then, there are some
interesting details that merit attention. A recent discussion regarding
one developer's contributions to the Emacs Org mode project shows how
expansive and poorly understood such agreements can be in some cases.
Org mode is a major mode for the Emacs
editor that can be used for the maintenance of task lists, project plans,
more; it is a general-purpose tool that is held in high regard by a large
community of users. Org mode is run as an independent project but its
releases are incorporated into Emacs releases; for that to happen, Org mode
must be developed under the Free Software Foundation's copyright assignment
rules. So it is not (usually) possible to contribute changes to Org mode
without having signed a contributor agreement that assigns copyright to the
Jambunathan K is a contributor to Org mode and an active participant on the
project's mailing list; his credits include a module to export to files in
(ODT) format and a rewrite of the HTML export module. It is fair to
characterize Jambunathan's relationship with other Org mode developers as
"difficult." His mailing list postings are seen as contentious and disruptive
he has, at times, been asked to leave the
project's mailing list. In February he made a half-hearted attempt to take over maintainership of Org
mode; his bid gained little support from other developers in the project.
More recently, he has requested removal of ox-odt.el and ox-html.el from the Org mode repository;
again, this idea was received with little enthusiasm. So his next step was
to take his case to the main Emacs list,
I have some disagreements with current Orgmode maintainer and the
community in general.
I would like to withdraw my pleasure in having these files
distributed as part of Org distribution. I would like to register
my displeasure in a substantial way.
More specifically, I would like to know how copyright assignment
works for files that are not yet part of Emacs. Is there is a way
I can withdraw my assignment (for a substantial period - say 3-6
months) big enough to create a minor discomfort for the Org
In such a situation, it would be a natural response to drop the work in
question and refuse any further dealings with this developer. Experience
has shown that a single difficult developer can create all kinds of
problems for a community when given the chance. Somebody who sets out to
deliberately create "a minor discomfort" for the Org mode
community is showing signs of being just such a developer; his code may
well not be worth the trouble.
But, in this case, it appears that the request will be refused. The files
in question have already been merged into the Org mode repository, so the
community appears to feel that (1) it has invested enough of its own
energy into that work to have a legitimate interest in it, and (2) the
FSF, as the owner of the copyright for that work, has every right to retain
and distribute it. It is the second point that Jambunathan would like to
dispute; since the files have not yet been distributed with Emacs, he says,
the Emacs copyright assignment agreement should not apply to them. One could
argue that he is almost certainly wrong and should be dismissed as
an obvious troll, but there is still an interesting point raised by this
When copyright transfer happens
There are numerous contributor agreements out there that include either
copyright assignment or the grant of a broad license to the work in
question. The agreement used by the
Apache Software Foundation, for example, includes a license grant for any
software that is "intentionally submitted" to the Foundation, where
"submitted" is carefully defined:
For the purposes of this definition, "submitted" means any form of
electronic, verbal, or written communication sent to the Foundation
or its representatives, including but not limited to communication
on electronic mailing lists, source code control systems, and issue
tracking systems that are managed by, or on behalf of, the
Foundation for the purpose of discussing and improving the Work...
Once the work is submitted, the grant applies. The Harmony Agreements, which can
involve either copyright assignment or licensing, have a very similar
definition. The Python
agreement requires a specific annotation in the source indicating that
the agreement applies. The agreement for Emacs is not publicly posted, and
a request to the GNU Project for a copy went unanswered as of this
writing. Numerous copies can be found on the net, for example, including
this one, which
mirrors the language found in a
set of template files shipped with the gnulib project:
For good and valuable consideration, receipt of which I
acknowledge, I, NAME OF PERSON, hereby transfer to the Free
Software Foundation, Inc. (the "Foundation") my entire right,
title, and interest (including all rights under copyright) in my
changes and enhancements to the program NAME OF PROGRAM, subject to
the conditions below. These changes and enhancements are herein
called the "Work." The work hereby assigned shall also include any
future revisions of these changes and enhancements hereafter made
Unlike the other agreements listed above, the FSF agreement has no
requirement that the work actually be submitted to the project; it simply
has to be a "change or enhancement" to the program in question. So it
could easily apply to changes that were never intended to be contributed
back to the original project. In the discussion started by Jambunathan,
Richard Stallman has made it clear that
this expansive interpretation is intentional:
Our normal future assignment contract covers all changes to Emacs.
Whether it is considered a "contribution" or a "fork" is not a
Or, going further:
A diff for Emacs is always a change to Emacs.
I will think about the questions raised by a separate Lisp file.
It is worth noting that Jambunathan's work would be considered a submission
under the language used by most projects requiring contributor agreements:
he posted the code to the project's mailing list with the clear intent of
contributing it. The fact that the Org mode project had not yet gotten
around to including it in an official release (version 8 is due soon)
and feeding it into the Emacs repository is immaterial. So the broad
scope of the FSF agreement is not relevant to that particular dispute.
But anybody who has signed such agreement might want to be aware that the
FSF thinks it owns their changes, regardless of whether they have been
publicly posted or explicitly submitted for inclusion. One could argue
that entirely private changes made by a signatory to that agreement are,
despite being seen by nobody else, owned by the FSF. Even an entirely
separate function written in Emacs Lisp — something which is not necessarily a
derived work based on Emacs and which thus might not be required to be
distributed under the GPL — might be subject to a claim of ownership by the
FSF, at least until Richard has a chance to "think about" the situation.
That may be a bit more than some signatories thought they were
For the record, one should immediately point out that the FSF has
absolutely no known history of ever abusing this power or claiming
ownership of code that was not clearly submitted to the project. But
organizations can change over time and Richard, who just celebrated his
60th birthday, will not be in charge of the FSF forever. A future FSF
might choose to exploit its perceived rights more aggressively, possibly
resulting in regret among some of those who have signed contributor
agreements (which, incidentally, have no termination
provision) with it.
In truth, even the FSF appears not to know what is covered by its
contributor agreement; Richard had to respond to some
questions from Jambunathan with a simple "I will study these
questions." Whatever the outcome of his study might be, it seems
reasonable to suggest that the FSF's contributor agreement may be due for a
review. Even if the FSF still feels it cannot live without such an
agreement, it would be good to have one that clearly defines which code is
covered — and when.
Comments (50 posted)
Page editor: Jonathan Corbet
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