[cc-licenses] Subject: Re: Version 3.0 - List Discussion Responses

Nic Suzor nic at suzor.com
Sun Oct 1 18:51:22 EDT 2006

Apologies for the dense post. Trying to make this as clear as possible.

Summary: I believe the licences should focus on the freedom of the
content, not the monopoly of the players. Unless the licensor chooses
the NonCommercial option, I don't think they have a clear intention to
prevent DRM-Dave from wrapping content up and trying to sell it (as
long as it's clear enough that there is a zero cost clear-version
available - maybe we can tweak the attribution requirement).

On 10/2/06, Greg London <email at greglondon.com> wrote:
> And if you argue that Dave will never get that
> large a majority, that there will always be other
> platforms that play open formats, that will be
> significant competition against Dave, then...

I think it may be helpful to further break down your use cases.

I'm going to focus on the SA licences, because I don't believe that
the restriction should apply to attribution-only licences.

SA-Sam releases a music track under BY-SA, but not in a format that is
playable on Dave's DRM-only player.

(a) anybody has the ability to wrap music in DRM to play on Dave's
player, but it's a technically difficult process. Alice performs this
service for Bob and others, and makes a DRM version of Sam's track
available. Because this may restrict the ability of a users to
exercise their freedoms, she also makes available a clear-text version
of the track (the same version she found from Sam's website). Now,
everyone is in a net positive position. Sam's track is getting more
distribution, Dave's player is getting a larger music base, Bob can
listen to Sam's music on Dave's player. This may have the effect of
increasing Dave's market power, but this is not at this stage a
problem. We don't mind with these licences that people can use content
to make money, we just need to ensure the freedom of the content.

(b) as above, but Dave has later rescinded the ability of third
parties to apply DRM to make things work on his player. Now, Bob can
listen to Sam's track on Dave's player, but if he wanted to modify it,
he could not remix it and have it play on Dave's player again.
However, he can remix it (because he can get the clear-text version
from either Sam or Alice), and make it available in clear-text. As far
as content goes, everyone is still net positive; the freedom to remix
and reuse the content has not been diminished, but Bob can no longer
listen to derivatives on Dave's player. So far, this is practically
the same situation as if Alice were prohibited from wrapping Dave's
song in DRM in the first place, except that any song released before
permission was withdrawn could still be played. The freedom of the
content has not diminished, but the usability (and perhaps
market-share) of Dave's player has increased a little.

(c) which brings us to consider what happens when Dave decides to wrap
Sam's content up himself. Dave wants to ensure that people can enjoy
Sam's music on Dave's player, and pay for the privilege of doing so.
Dave takes Sam's content, wraps it in DRM, and releases both an open
and the DRM version on his site. In order to access these files, you
have to pay $0.99/song. So far, this isn't a problem - remember that
we didn't select a NonCommercial licence here, and people are allowed
to try to make money out of free copyleft content. Now everyone still
has the same freedoms with regards to the content itself, but Dave is
able to obtain greater market share, because his player will play
music from the major labels as well as music created by Sam. Sam is
also potentially happier, because his music is being played on more
platforms, reaching more ears, and people still have the ability to
remix it. They do not have the ability to remix it and play it on
Dave's player, but that's ok, because there are still clear-text
versions around. Dave may obtain a high level of market penetration,
but this doesn't limit the freedom in the music.

It may be undesirable to have a monopolistic restrictive commercial
provider of portable music players, but I am not convinced that we
should fight this with copyright licences over the content. The CC
licences protect freedoms in the content, they're not tools for
fighting monopolies (or at least, the public perception of them
doesn't seem to be). If Bob becomes frustrated that he can't remix
Sam's music and upload it to Dave's player, he should be able to
manifest demand for a competitive product, a player which can play
both DRM-music and open music. The content is not less free.
Restricting Dave from distributing Sam's music doesn't hurt Dave so
much as it hurts Sam and Bob.

(d) finally, Dave wants to use Sam's work as an integral part of
Dave's player. He incorporates Sam's track into the background music
in the user interface, for example. The share-alike restriction
requires Dave to make his user-interface available under the same
conditions. In this case, I believe that Dave should be required to
release his user-interface along with all the tools necessary to make
it work on his player. The licence could be drafted so as to ensure
that when Dave creates a derivative work under an SA licence, if he is
going to apply DRM, then he has to provide the tools for others to do
the same. This is the GPL-example here - when code is embedded into a
player, the source of the player must be made available. This
obligation does not arise when someone merely places GPL'd code on
storage media or a platform which requires DRM.

My argument is simple. I believe the Creative Commons licences should
focus on the freedom of the licensed-content, not the market power of
players. As long as the content is free, I think Sam will be happy. If
Dave takes Sam's music and applies DRM, I think Sam will be happy as
long as there is a clear-text version available (and users know about
it). If Dave takes Sam's music and integrates it into his code, I
think that Sam would think that Dave should be required to release
everything. In the long term, I think even anti-monopoly people will
be happy, because open formats are being released and maintained by
everyone who releases them, and there is nothing stopping new actors
from making players which play open content.

If I were to release a song under CC BY-SA, I would not have a problem
with Dave wrapping DRM around that song and  trying to sell it through
his website, as long as he also makes available the clear-text
version. He may be making money off it, but I didn't select the NC
option. The only way to listen to my song on Dave's player may be to
pay Dave for the privilege, but I didn't select the NC option.
Listening to my song on Dave's player is not the only way to listen to
(or remix) my song. People can still get and play with my song. Some
of those people may choose to pay Dave to use his player, but that's
not really my concern. If I wanted to stop people from making money
from my song, I would have selected the NC option.



The views expressed above are my own personal views and do not
necessarily reflect those of any other people or organisations.

Nic Suzor
nic at suzor.com
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