Development of Creative Commons licenses

[Rob Myers <robmyers AT mac.com>]

On 25 May 2005, at 18:47, Greg London wrote:

> For a license that allows proprietary forks,
> what's the point of demanding the original
> must be transmitted "in the clear"?

It ensures that proprietary forks can always be made?

> Anyone who wants to get around it will
> simply create a derivative, fork it
> to all rights reserved, give attribution
> to Alice, and transmit it via DRM.

This is true, but in abstract at least forking is different from mere  
distribution (or collective works/aggregation).

I agree that it sounds strange, and I may well be wrong but consider  
the license terms:

"You may not distribute, publicly display, publicly perform, or  
publicly digitally perform the Work with any technological measures  
that control access or use of the Work in a manner inconsistent with  
the terms of this License Agreement."

I read this as:

may not distribute...the [original, and only the original] work  
with...technological measures

This seems to say that you cannot interfere with anyone's ability to  
use the *original* work by DRM-ing it. So I do believe that if you  
are distributing the original work unaltered, this clause of the  
license would stand.

But 4a seems to cover the original work *only*. Are the parts of the  
original work in the derivative work still covered by the terms  
covering the original work? Would the derived work be able to DRM the  
parts of the original BY-SA work that it includes without breaking  
that clause by virtue of their being actually part of a new  
derivative work?

> For CC-SA works, allowing dual-format would kill
> any share-alike benefit. Anyone who wanted to
> compete against the share-alike project could
> get around the sharealike license via DRM
> and make the original available in a filing cabinet.

Absolutely.

> For CC-SA, the work and the license must be atomic.
> and by atomic I mean from the Greek word 'atomos'
> meaning 'indivisible'. The work must always satisfy
> the license. If Bob transmits the work via DRM,
> it must give Charlie a version of the work that
> is free and clear of any Rights Restrictions.

Welllll. If there was a DRM "tunnel" that spat out a clear version of  
the work at the other end, that might be different, it might not, I  
don't know.

As an aside, I can't particularly read TCP packets without  
technological assistance, so a novel sent to me over TCP and then  
stored on hard disk isn't particularly easy for me to read. But that  
distribution mechanism is not specifically designed to prevent me  
from reading the work as transmitted without further measures,  
encrypting the work is.

> If users are allowed to split this atom,

That really is the nuclear option. ;-)

> then you
> get the GPL problems of "binary" versus "source",
> and the CC licenses have no terms to handle the
> differences between these two versions.

Yes. And as I mentioned earlier it's important that no-one confuse  
"in the clear" (or FDL-style "transparent") with source.

> This is the way the CC-SA license needs to be.
> I'm not entirely sure that it does this.
> I think it does. But then I thought CC-NC
> meant no monetary exchange, regardless of profit,
> so I'm no longer sure.

Doesn't noncommercial's weirdness comes from noncommercial being a  
phrase with a particular legal meaning? "Technological Measures" has  
a particular meaning from the DMCA IIRC, and the licenses are clear  
about what Technological Measures may not apply to.

I'm very, very, *very* pleased at CC's recent appointments and the  
commitment that Lessig's blog has mentioned to improving CC's  
educational and explanatory role. Hopefully we won't be able to  
misunderstand any of the licenses like this for much longer. :-)

- Rob.