[cc-licenses] Dual Distribution Reconsidered

Rob Myers rob at robmyers.org
Mon Dec 4 15:40:07 EST 2006


James Grimmelmann wrote:
> Rob Myers wrote:
>>
>> * Who has the right to add DRM to CC work?
>>
>> According to Mia’s responses to the draft comments, possibly only the 
>> copyright holder(s?). This would mean that only the original author and 
>> possibly authors of derivative works could add DRM. End users would not 
>> be able to.

What is your understanding of whether a non-rightsholder has the 
authority to add DRM to a work?

>> * What about Fair Use?
>>
>> The CC licenses state that nothing in them is intended to reduce Fair 
>> Use. But adding DRM has the potential to reduce Fair Use in unintended 
>> ways. Any addition of DRM therefore has at least the potential to reduce 
>> Fair Use. This might mean that no DRM can be added, as any DRM removes 
>> the Fair Use rights guaranteed (although not granted) by the license.
> 
> I would tentatively disagree with this reading.  The revised anti-DRM 
> clause refers to rights "granted . . . under the License."  The licenses 
> only "grant" rights in section 3.  Fair use is mentioned in section 2, 
> but is not "granted."  Restrictions on fair use rights that don't also 
> restrict one of the explicit rights granted in section 3, therefore, 
> don't violate the anti-DRM clause.  DRM is prohibited if and only if it 
> interferes with one of the "granted" section 3 rights.

Yes that makes sense. Which is a shame as Fair Use is very important.

>> * What about noncommercial copying?
>>
>> All the licenses allow at the very least noncommercial copying of 
>> unmodified work. DRM can be used to prevent this. But is this a right 
>> guaranteed by the license or merely a permission offered by it?
> 
> Copying is a right granted by the license.  It's in section 3.a (in the 
> BY-NC versions).  So any use of DRM to restrict the recipient's ability 
> to copy noncommercially violates the anti-DRM clause.   (BTW, the 
> restriction to noncommercial copying, in the NC licenses, is a section 4 
> restriction, and not part of the section 3 grants.  Section 4.b, in BY-NC.)

Ah, cool. I assume this right evaporates  when a BY or BY-NC work is 
incorporated into a derivative work, as otherwise it's not very 
BSD-license-like.

So *can* I distribute with DRM under the current anti-TPM language? 
Copying is not use. :-/

On the one hand, to take FairPlay (iTunes) as an example, I can copy 
FairPlay files onto any media I like, so copying is not restricted 
(hmmm. unless that's a breach of the EULA :-) ). And I can play the 
files with what amount to NC-ND rights on any authorised FairPlay system 
(i.e. iTunes on another Mac). So my ability to copy isn't restricted, 
and my ability to exercise the rights granted by NC-ND is not restricted 
by the DRM once I can use the work on a FairPlay system.

On the other hand, *any* DRM prevents me from using the work where I 
might ordinarily use it but where I do not have access to the correct 
DRM system, or if the DRM vendor revoke my rights, goes bust, or 
otherwise is problematic. If I have an AAC/MP4 file I can normally play 
it on iPodLinux. If it has FairPlay on it I cannot. But if *any* DRM 
prevents you exercising your rights, why allow DRM at all?

So on balance I do believe that the current CC licenses allow 
distribution with DRM. IANAL though, TINLA, etc.

- Rob.



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