Moglen, in his posting, said:
In view of recent statements by developers of the Linux kernel, and the response by the Free Software Foundation, I would like to offer my personal views as the chief mediator in the GPLv3 process.
To begin with, I welcome the current expressions of opinion by kernel developers. As I have repeatedly said in private communications, and will now say again publicly, I will gladly take any steps possible to include the kernel developers in the ongoing discussion process. I invite them to represent themselves in any way they choose, and pledge to work with them to create, even at this late date, a form of participation in the deliberations about GPLv3 that would reflect their preferred means of work, and be appropriate to their position in the community of developers.
I asked Torvalds, via email, if he was likely to take Moglen up on his offer to participate in the process. Torvalds' reply, which was cc:ed to Moglen, was less than enthusiastic:
I wonder why everybody but the FSF seems to know my email address, but the FSF can't find it.
If it has an anti-Tivo clause, I think it's bad. I've tried to explain it to some people (the freedom of the _project_ is much too important to let any license clause limit how you can use it), but when other people did that, the FSF just explained how they had mis-used the word "use".
But I'm so fed up with the FSF right now that I'm not in the least interested. There's no way in _hell_ they can claim that they don't know my standpoint, so what are they even asking for?
The FSF's response to the kernel developers on Monday took issue with the characterization of the anti-DRM clause as an "end use restriction," but didn't address the developers' other arguments about the anti-DRM clauses in the GPLv3 draft.
In fact, the FSF's response largely failed to address any of the concerns put forward by kernel developers and instead focused on correcting a few minor factual errors in the position paper. The FSF has declined several requests for interviews to answer questions about the developers' position paper. Moglen, through the SFLC, has also declined to answer any questions.
Stopping TiVo is worse than TiVo itself
Torvalds says that he has cc:ed Moglen in the past regarding his position on the GPLv3 drafts, and that his position on the license should be clear already. Torvalds also writes that removing the anti-DRM clause would go a long way toward addressing his concerns:
Eben, I think the whole anti-Tivo crusade is _wrong_. If you can get rid of the language that says that you cannot use a project any way you want to (and I don't care if it legally is about "distribution" or "use", I just want it to be _practically_ about the usage standpoint), just about all my very fundamental concerns go away.
Other people might worry about the patent language, but at least I _personally_ really only dislike the whole term "Tivoization", and all the new language to try to "stop" it. I think stopping Tivo is a much bigger problem than Tivo itself ever was.
But that [removing the anti-DRM language] would require a public statement that things like Tivo trying to control _which_ particular version of a program they run on hardware _they_ control is actually ok, and that you can actually use a GPLv3'd project in all the same situations you could use a GPLv2 one.
(It's not just Tivo, either. Medical supplies, cellphones with restricted updaters, you name it. Cryptography is a fundamental technology, and should not be disallowed).
It's their hardware. I do _not_ want to ask for control of the "environment" back in a license. I want the improvement to the _software_, not the keys to the kingdom. The "environment" a program runs in (or the medium it is distributed on) doesn't have to be open. Just the program itself.
As it is, the GPLv3 limits a program that uses it very fundamentally more than Tivo _ever_ limited Linux. Tivo never limited the way Linux could be used by others. The GPLv3 tries to limit how a project can be used. The GPLv3 is the one that really limits your freedoms, not the other way around.
Since Torvalds seems to object primarily to the anti-DRM provisions, I asked if he'd consider moving to the GPLv3 if the FSF removed those provisions from the final license. Even if that happened, Torvalds says that he's not "not going to single-handedly try to relicense" the kernel out of respect for past authors of kernel code.
"Any concern by an author of the _current_ work against the switch does weigh very much more than any voice for the switch talking about potential future work.... However, without the anti-Tivoization clauses, I won't fight it rabidly."