[cc-licenses] ParaDist Questions

Mia Garlick mia at creativecommons.org
Wed Nov 29 14:54:07 EST 2006

actually, if i can elaborate on one point raised here.  when i  
inherited responsibility for the licenses, i consulted with those who  
drafted them as to the scope of the so-called anti-TPM clause.  they  
explained that its scope was to prohibit the use of technological  
measures that "control access or use of the Work *in a manner  
inconsistent with the terms of this License Agreement*" (emphasis  
added). thus, the 2.5 and earlier licenses are not intended to  
proscribed access controls because access is not a right or privilege  
granted under the license agreement although they would prohibit an  
access control that also acted as a copy control measure.  
consequently, as part of making version 3.0 clearer in part as a  
result of discussions with Debian it seemed prudent to drop this  
terminology to avoid any such confusion....

On Nov 29, 2006, at 11:41 AM, James Grimmelmann wrote:

> Mike Linksvayer wrote:
>> On Wed, 2006-11-29 at 12:43 -0500, Benj. Mako Hill wrote:
>>>   Let's say that there is a popular piece music under a permissive
>>>   CC license. Now let suppose that a manufacturer of electronic
>>>   greeting cards and small musical snow-globes wants to use that
>>>   piece of music as part of their cards and music boxes. Neither
>>>   devices have the ability to modify the music or even to copy it
>>>   off.
>>> First, is this a violation of the current anti-TPM language? It  
>>> seems to
>>> me that it probably is. If you think that is not, I'd love to  
>>> hear why
>>> you think that technical restriction is fundamentally different  
>>> between
>>> a greeting card and DRM. The key difference seems to be  
>>> intentionality,
>>> but the license doesn't talk about that and probably shouldn't.
>> I doubt an artifact that doesn't actively facilitate digital copying
>> would be considered to have TPM.  If that was the case a photo on  
>> paper,
>> or text on paper, would be TPM.
>> This is important because DMCA and its ilk only makes  
>> circumventing TPM
>> illegal, not making any analog copies.  So there is no reason for a
>> license to care about this case.
>> No?
>> IANAL...
> This is a case in which the phrase "technological measure" or
> "technological protection measure" is ambiguous.  Under the DMCA,  
> there
> are separate provisions for TPMs that control "access" to a  
> copyrighted
> work, § 1201(a), and those that "protect[] a right of a copyright
> owner," § 1201(b).  The DMCA forbids both circumvention and  
> trafficking
> in circumvention devices where access is at stake, but only  
> trafficking
> in devices where it is a copyright holder's rights at stake.  I have
> never seen a convincing explanation of or justification for the  
> distinction.
> The language in the CC 2.5 licenses on point refers to both  
> "access" and
> "use," which would seem to be a clear attempt to track the DMCA.   
> Under
> that language, that the artifact was designed without digital copying
> features may itself be the "technological measure" that protects the
> copyright holder's rights.  Reverse-engineering the pinout of the
> greeting card's internal chip and extracting the music seems like a
> straightforward DMCA violation.  Since breaking the lock would violate
> the § 1201(b) rights-protecting portion of the DMCA, given the CC 2.5
> language, I think the lock itself qualifies as a TPM.
> The 3.0 draft, however, abandons that parity, and instead refers
> generically to "technological measures that restrict the ability of a
> recipient of the Work from You to exercise the rights granted to them
> under the License."  So the question is whether a given feature is a
> "technological measure" that "restrict[s]" ones ability to "exercise a
> right" granted by the CC license.
> This language requires a little more work to figure.  I think whether
> something qualifies as a "technological measure" is easy enough.   
> So is
> enumerating the list of rights granted under a CC license -- those  
> track
> the various rights enumerated in the copyright statute and are
> explicitly listed in the license.  So the real question is what counts
> as "restrict[ing]" that ability.
> It turns out that "restrict" is used in exactly one relevant way in  
> the
> U.S. copyright statute.  The § 1201(b) definition of "technological
> protection measure" (but NOT, note, the corresponding § 1201(a)
> definition) says, "prevents, restricts, or otherwise limits the  
> exercise
> of a right of a copyright owner."  What this says to me is that the  
> 3.0
> definition now adheres only to § 1201(b) and not to § 1201(a).  The
> correspondence, though, seems close enough -- through the use of the
> work "restrict in the context of talking about TPMs -- that a court
> could reasonably find that the same line is being used in the  
> license as
> appears in the DMCA.  If it qualifies as a TPM for § 1201(b) purposes,
> it can qualifies as a TPM for the anti-TPM clause (provided that the
> right of a copyright owner restricted by the TPM is one granted by the
> CC license in question).
> My reading of the greating card scenario remains the same.  It  
> could be
> a DMCA § 1201(b) violation, and thus it could trigger the anti-TPM
> clause.  One could read the license differently, but the way that the
> clause is written, it's quite possible that the greeting card would  
> be a
> no-no.
> Why not the photo on paper case?  Because the use of paper doesn't  
> seem
> like it "restricts" the exercise of a right.  Given the format in  
> which
> the work exists--on a piece of paper--the rights of, say, copying that
> piece of paper with a scanner, aren't restricted by the fact that it's
> on paper.  Obviously, this line breaks down somewhere, and the
> distinctions are entirely a matter of semantic quibbling, but it seems
> quite possible to me that the greeting card could fall on the wrong  
> side
> of the line, particularly since it has a mode that actually causes one
> of the copyright holder's rights to be triggered--open it up in public
> and it's a public performance.
> This is all a long way of explaining why I don't share Mike's  
> confidence
> that the anti-TPM clause isn't implicated by the greeting cards and  
> snow
> globes.
> James
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