2016 comment on infrastructure to U.S. Copyright Office

Before the
           United States Copyright Office,

Library of Congress
101 Independence Ave. SE
Washington, D.C. 20559-6009

In the matter of:            )   
                                   )   
      Information Technology       )   
      Upgrades for a Twenty-First  )   Docket No. 2016–2
      Century Copyright Office     )

COMMENTS BY THE FREE SOFTWARE FOUNDATION

Joshua Gay & Donald Robertson, III
                                      Free Software Foundation
                                      51 Franklin St.
                                      Fifth Floor
                                      Boston, MA 02110

March 30, 2016

Background

On March 1, 2016, the United States Copyright Office (Copyright Office) released a public call for comment, Information Technology Upgrades for a Twenty-First Century Copyright Office (Docket No. 2016–2). In response to this call, the Free Software Foundation submits the following comment.

About the Free Software Foundation

The Free Software Foundation (FSF) is a charitable 501(c)(3) corporation, founded in 1985, with the mission to expand and defend computer user freedom. The FSF is the largest single contributor to the GNU operating system (used widely today in its GNU/Linux variant) and the FSF's GNU General Public License (GPL) is the most widely used free software license, covering major components of the GNU operating system and tens of thousands of other computer programs used on hundreds of millions of computers around the world. The FSF has inspired and significantly influenced numerous other initiatives focused on creating free licenses and free works, including Creative Commons and Wikipedia.

The FSF's Licensing & Compliance Lab is the preeminent resource of free licensing information for developers and publishers of free software and free documentation. The Licensing and Compliance Lab provides numerous resources and public services including: no-cost licensing consulting for developers of free works; continuing legal education workshops for the legal community; and myriad educational publications on choosing and making use of free licenses.

Comment

The Free Software Foundation applauds the United States Copyright Office plan of modernizing its IT infrastructures, to, amongst other things, "allow real-time access to the Office’s database of information about copyrighted works through an API" (Provisional Information Technology Modernization Plan and Cost Analysis, retrieved from http://www.copyright.gov/reports/itplan/ on March 30, 2016). A publicly available Web-based API will allow the public to make use of and develop new free software tools to access information from your Office.

We urge the the Copyright Office to consider putting in place a policy that requires that all software you develop or have developed for you be free software. This is especially important for any software that the office distributes or requires people to use in order to interact with the Copyright Office. Doing so is not only the right thing to do for the public, but it would also be a policy that is aligned with the White House's proposed Source Code Policy, which encourages agencies to release as free software "as much custom-developed code as possible to further the Federal Government’s commitment to transparency, participation, and collaboration" (retrieved from https://sourcecode.cio.gov/OSS/ on March 30, 2016). At present, the Copyright Office not only lacks such a policy, but, at times requires the use of proprietary software. Case in point, we are submitting to your organization a paper comment because we refuse to run the proprietary software required to submit a digital comment via regulations.gov. This is not the first time we have been told we must use proprietary software in order to submit a comment to your agency.

On February 12, 2016, we spoke with your Office requesting the ability to submit a comment to the United States Copyright Office in a way that did not require the use of proprietary JavaScript software via the regulations.gov Web site. We explained that as an organization, we are unable to run proprietary software from regulations.gov for moral and ethical reasons; the same social mission behind our 501(c)(3) status.

You responded to our request on February 16, in a letter stating that the United States Copyright Office "cannot allow submission of comments outside the regulations.gov system on the basis of your objection to the use of proprietary software." In addition, you stated that one reason your office was denying our request was that doing so may "give rise to requests for separate submission procedures from any number of groups and individuals." Then on March 10th, Jacqueline C. Charlesworth, General Counsel and Associate Register of Copyrights, emailed us to reiterate that you indeed "require comments to be submitted through regulations.gov."

However, your agency already allows two submission procedures: you do allow some people to submit comments on paper, and the rest use regulations.gov. We have simply requested the ability to submit via paper, not our own separate submission procedure.

Further, your objection brushes aside serious moral and ethical objections that we and many thousands of free software supporters share. We object to all proprietary (or "nonfree") software, which is any software that denies users the right to study, modify or distribute modified versions of that software. Such restrictions prevent users from fully enjoying rights they should have to the programs running on their own computers. When software is proprietary, that means that some company claims ownership of it, and through that ownership claim, imposes restrictions on users as to how they can or can't use the software. When the government requires citizens to run such software, it is requiring that they accept the specific and arbitrary terms imposed by that company. Citizens should not be required to engage with any particular private company in order to participate in public proceedings or use any governmental Web sites or network service. Ensuring that users are free to study, share, modify, and re-share any software they receive is the morally right thing to do. The Free Software Foundation provides an overview of the dangers of proprietary JavaScript in particular, as well as the methods for freely licensing it, at https://www.gnu.org/philosophy/javascript-trap.

In the case of regulations.gov, the JavaScript files and other data that users are required to download come from multiple servers that are controlled by different private companies. There are several JavaScript files users are asked to download and run, and the total length of those programs exceeds 750,000 characters. These files have been "minified" and "compiled" so that they are made as short as possible, optimized to be understood by a machine, and not by a human. Having to send and receive data from multiple entities and run complex proprietary programs creates increased security risks for users. Further, it is not clear why any of this complexity is necessary, since the HTML standard makes it possible to submit a Web form without the use of JavaScript at all.

We hope you will reconsider your decision, and either accept written comments from those who object on moral grounds to the regulations.gov system, or provide a simpler digital system that does not force the public to blindly use a particular company's proprietary software to participate. Ideally such a decision from the Copyright Office would naturally follow from a general policy that requires the development and distribution of only free software.

Sincerely,

Joshua Gay & Donald Robertson, III Free Software Foundation, Inc. 51 Franklin Street, Fifth Floor Boston, MA 02110-1335 licensing@fsf.org