CNET News offers the best coverage in a confusing field of reports on weblog comments by Linus Torvalds, progenitor of the open source Linux operating system that powers many of the Web's servers. Torvalds states in his posting that he does not plan to convert his Linux code to support the proposed new version of the Free Software foundation's GNU General Public License, the legal instrument that has been the foundation of the open source programming movement for the past fifteen years. Section 3 of the proposed license, entitled "Digital Restrictions Management" (sic), states among other things that the new GPL license will not support "modes of distribution that deny users that run covered works the full exercise of the legal rights granted by this License." This means that works using DRM cannot be used as a distribution mechanism for software protected under this proposed license, but also that it would not be possible to create an open-source DRM system using the GPL Version 3 license.

While Torvalds does not rant directly against the anti-DRM stance in his post, he is clearly opposed to the measure. To some degree he is no doubt thinking about the commercial viability of the widely used Linux software in an era in which publishers are trying to adopt viable strategies for protecting copyrighted materials. But I think that the larger issue is whether this is a legal provision that serves the public or whether it is a provision being used to frame an ill-formed political debate that has no real place in a legal document for open source software or other types of electronic content. The provisions of the proposed license state that "no permission is given to distribute covered works that illegally invade users' privacy" and yet at the same time it "intrinsically disfavors technical attempts to restrict users' freedom to copy, modify, and share copyrighted works."

This is the core of the problem: if users are supposed to have their rights to personal privacy protected, shouldn't those rights include the ability to protect their intellectual property via technology as they see fit? In a world of user-generated media, "we" are "they"; it's individuals as much as media companies who need DRM to manage content that finds its greatest value in the hands of the audiences who use it and create it. "The commons" is an important feature in any successful community, but its value comes from people being able to have both common rights and personal rights. Pushing away DRM developers from a GPL framework will make it far less likely that a DRM framework that works for individuals as much as for institutions will see the light of day. That's bad for the commons as much as for private goals.

Increasingly the commons will be found not in central repositories but in digital works distributed to and by individuals that have both public and private elements. Every author and user should have the right to define their comfort levels for what they consider public and private use of those digital works as they please within broader legal boundaries. Open source licensing has been a boon for online publishing; hopefully its proponents can find the right mix of recognizing the rights of individuals as both publishers and users of content that will carry it forward into the emerging era of user-distributed digital works.