[cc-licenses] Detailed discussion, was Re: PROCEDURAL SUGGESTION

melanie dulong de rosnay melanie.dulong-de-rosnay at cersa.org
Wed Oct 4 11:49:44 EDT 2006

thanks i'm beggining to understand better
i don't think the argumentation should rely on TPM circonvention  
rules and exceptions because states remedies to TPM-exceptions  
conflicts and DRM licenses may evolve quicker than legislation  
usually does

Le 4 oct. 06 à 17:19, Terry Hancock a écrit :

> [RE:  duration of a proposed promise to apply TPM to derived works to
> make them available on a TPM-only platform as a condition for applying
> TPM at all]
> drew:
>>  As long as he is distributing any works with the same license
>>  elements hten?
> That doesn't seem very logical at all. And note the problem with *who*
> is being required to provide this service.  We have at least three
> parties here:
> 1) TPM-Keeper (TK): a person who has a right to a key, and can use  
> it to
> wrap content (thus providing this service). He might be a community
> member who has shelled out cash for a key license or he might be
> affiliated or identified with one of the other parties.
> 2)TPM-Platform-Owner (TPO): the person (or more probably company) that
> created the TPM-Only-Platform in the first place.  He is in a position
> either to permit TPM to be applied or to allow non-TPM work to run on
> his system.
> 3) TPM-Technology-Provider (TTP): the company whose technology is used
> to apply the TPM to works, typically contracted by the TPM-Platform- 
> Owner
> (none of whom is necessarily the content-owner or the recipient of the
> work who must agree to our terms)
> Now, according to Mia Garlick earlier post, it is apparently the *TTP*
> who is the "copyright owner" who must give permission to legally
> circumvent a TPM system.  Note how incredibly far we are from being  
> able
> to apply any license pressure on this party!
> If we have sway on any of these people, it's the TK.  But he has  
> almost
> no control over the legality or continued availability of TPM- 
> conversion
> of anyone's work (even his own). He's under an essentially  
> unconstrained
> contract with TPO and/or TTP to apply the key only according to their
> agreement. He might be charged a fee not only for having the key, but
> also for each time it is used, or for how many different packages  
> it is
> used, or whatever. There's basically no legal limit to what this key
> licensing contract can demand.
> Likewise, even if we are lucky enough to sway the TPO, he also may not
> be in a position to make promises which may be constrained by his
> contract with the TTP.  In general, he'd find it easier to make it
> possible to play non-TPM works on his platform.
> The TTP can provide the assurance we want (for example, if the TPM was
> developed under GPLv3, we already have the necessary permission), but
> it's unlikely that he will, and he is not party to our content  
> licensing
> agreement (he doesn't have to agree to the CC license, because he's  
> not
> trying to play or distribute the content).
>>> Our hypothetical community based TPM-keeper can't do it legally,
>>> because of the terms under which he receives the key.
>>  Well, the community keeper could just keep functioning instead.
> Um, *no*. I just said, he *can't* promise to do that legally.  The  
> TK's
> right to use the key can be revoked or may include (or have added)
> provisions prohibiting him from meeting the promise we demand of him.
> BTW, I think it might be worth noting, based on my earlier comment  
> about
> self-application of TPM and TPM-application being trivial and  
> invisible:
> the TK could provide package-specific TPM-wrappers, just as they could
> proivd
>>  Here is a fun condition:
>>  Until the work goes into the public domain or until the keys are  
>> make
>>  Free.
> This is oddly unhelpful because it leaves the work locked under TPM  
> even
> (in fact, only) when it enters the public domain (precisely when we
> should insist on it being free)!  But it still has the problem with
> who's being bound to this promise, and what is the remedy if they  
> break
> that promise (as they may be legally compelled to do by other  
> contracts
> if they are the TK or TPO and not the TTP!).
>>  Perhaps, but we must remember that this DRM hairball is not  
>> something
>>  we created. We should perhaps think along the line of solutions  
>> where
>>  all but obviously bad intentioned actors can implement easily. (Is
>>  that clear?)
> "The road to hell is paved with good intentions". We're not even
> necessarily concerned with "intentions", but rather with outcomes and
> freedoms. Even if someone enters into this arrangement with the best
> intentions they can still fail their promise, possibly not even  
> through
> any action of their own, but by the action of other parties binding  
> them.
> The TK may promise in good faith to provide a conversion service for
> everybody. He may do this based on a flat-rate license offered to  
> him by
> the TPO or TTP. But what if the contract is then changed so that he  
> gets
> charged every time he uses the key?
> What if the TPM is really, really nasty and locks a music copy down  
> to a
> particular CPU or a particular O/S kernel (i.e. it's used in concert
> with "Trusted Computing")? So that "TPM distribution" is then
> meaningless, and TPM has to be applied for each copy? Then the TK  
> has to
> keep his promise not just for every derivative work, but for every  
> copy
> of that work. It becomes a practical necessity to charge for this
> service (this won't bother a TPO who plans to sell per-copy licenses
> anyway).
>>  Perhaps I don't understand DRM properly but can't there be multiple
>>  sets of keys for the same device? Can't they make a set which can
>>  only be legally applied to Free Works?
> The question isn't so much "can it be so?" as it is "can we require it
> to be so?".
> But let's suppose there is such a set.  Either it's published or it
> isn't. If it's published, then the keys can be used to make  
> anything run
> on the platform. Thus the platform's TPM has been completely
> circumvented.  There's no way to do this just for one group of  
> packages.
> If it's not published, then we are at the mercy of whoever is holding
> the key as to whether they will provide TPM conversion as a community
> service.
> OTOH, it might be the case that there is a "free key" which allows
> packages to be TPM'd, but can't be used to de-TPM packages TPM'd with
> another key.  However, this is equivalent to allowing the platform to
> simply play non-TPM'd content as well as TPM'd.
>>> And if we require such involvement from the DRM distributor, DRM
>>> platform owner, and DRM technology provider, why aren't we just
>>> asking them to contact the authors, get permission, and pay a
>>> royalty in order to sell the DRM'd version? They always have this
>>> option.
>>  Well, I am fine with them contacting me and paying me to use my work
>>  in a non-Free manner. (Possibly.) This is pretty much the dual
>>  license model after all.
> Right, and so long as per-copy or per-package monetary charges  
> might be
> involved to create TPM versions, or so long as specific key  
> licenses are
> involved, it seems like an agreement has to be found on a case-by-case
> basis anyway. If that's so, then the penalty of seeking permission  
> from
> the author(s) doesn't seem unreasonable to me.
> TPM kills the low-friction environment that free-licensing is supposed
> to create, so why bother trying to preserve it at this point?  It  
> seems
> to me that it's a rather empty gesture to make sure that copyleft
> protection isn't tying down a package that is already tied down by TPM
> (as if to say "Yes, it's not free, but it's not our fault that it's  
> not
> free!").
> What I'm trying to say is that if in the end, there is a solution, but
> it's more complicated than just seeking permission if you want to
> distribute TPM'd files, then it's better to keep it simple, and  
> just go
> with the old-fashioned permissions approach.
> This works pretty well if you think of the job of free licenses as
> protecting the fence around the commons, rather than trying to
> appropriate the territory outside of it: if  we concede that TPM-Only
> platforms are okay, and that users of them should have the right to
> voluntarily restrict their freedoms by using them, then it's not
> unreasonable for them to acquire free content as they do non-free
> content, by paying for it on a copy-by-copy basis. And if that's going
> to be done anyway, then it seems only fair that it should it be the
> authors (not the TPO) who get compensated!
>>> It seems like we're in for some major slogging through the mud if
>>> we want to draft this kind of requirement. Lots and lots of
>>> details with risks at every step.
>>  Well. Perhaps the simplest wording is transparent TPM + parallel
>>  distribution and that will in effect cover all the bases. Then we
>>  could draft a FAQ suggesting these various ways to achieve this.
> It's already been established that we *can't* legally require that
> unless by "transparent TPM" you mean one for which the keys are  
> already
> published. But at that point, the CC anti-TPM clause doesn't apply
> anyway, so no change is required (and "parallel distribution" is then
> meaningless).  So, IOW, the only way we can word this is equivalent to
> what we already have, so why fix the unbroken?
> Cheers,
> Terry
> --
> Terry Hancock (hancock at AnansiSpaceworks.com)
> Anansi Spaceworks http://www.AnansiSpaceworks.com
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