Oh, and do you have new business cards yet?

For criminal 1201 violations, it might be basically like your analogy — but the prosecutor will have to prove beyond a reasonable doubt that it was an effective TPM, and the contract clause could be a handy source of doubt.

The real impact is in civil 1201 actions, since the party who’s suing will also be a party to the GPL. The plaintiff’s statement that the software isn’t a TPM will be admissible in court, and they’ll have the burden of overcoming that evidence — which will really look silly to a jury.

Further, the defendant would probably be able to prove that his conduct was authorized because, in the same paragraph, the GPL draft states that “distribution of a covered work as part of a system to generate or access certain data constitutes general permission at least for development, distribution and use, under this License, of other software capable of accessing the same data”

Say you sell me your 2002 Honda Civic. However our contract of sale says “the parties agree this is not the sale of a car, but in fact a horse”. I get pulled over and arrested for driving without a license. I point at our contract saying they can’t charge me, because this isn’t a car, so I don’t need a license. Judge laughs at me and I’m going to jail/receiving a hefty fine.

Isn’t the situation the same with the proposed GPL clause?