Development of Creative Commons licenses

[Thomas Gramstad <thomas AT efn.no>]

Hi,

I have a question about whether CC-licences, copyleft licences in
particular, protect one against having one's work republished in
closed, proprietary file formats?

(If this question has been covered before, I would appreciate some
pointers; I couldn't find it in recent archives of this list.)

As a free lance writer I publish my work with CC-licences, usually
a noncommercial copyleft license.  I publish in open formats,
mostly HTML, XML, plain text and perhaps PDF.  I believe that
closed, proprietary file formats, such as the .DOC-format built
into Word, are against the spirit of CC and CC-licenses, and
against the letter of at least some of the licenses.

For example, if someone converts my copylefted work from an open
file format into a closed, proprietary file format, this action
violates the "share alike"-condition by requiring the receiver to
use not only the same operating system and software, but even the
same version of the software, thus making the work difficult to
share with those who use other versions, software, or operating
systems, and against my (the copyright holder's) stated intent for
the work, as I've expressed it in the properties of the work
(being in an open format that works with all standards compliant
software on all computer platforms), and in the license.

As of today, closed, proprietary file formats may not make it
impossible or completely illegal to bypass or circumvent such a
file formats for use, copying and distribution, but they certainly
_impede_ these actions, and hence, I believe and hope, are already
at that point in violation of the share alike-condition.

In any case, two factors or trends will strongly enhance this
impediment, making it really difficult for users to exercise the
rights and permissions given them by the copyleft license:

(1) DMCA-like laws that prohibits or outlaws circumvention will
make it more and more difficult to bypass or circumvent
proprietary file formats legally, and such laws are being
introduced and promoted all over the world; and

(2) there is a trend that producers of proprietary file formats
patent new software extensions in new versions of their software.
This means that circumvention of closed, proprietary file formats
in addition to perhaps violate a DMCA-like copyright law, also
with certainty violates laws that protect software patents.

Another way to put it is to say that closed, proprietary file
formats are just another type of DRM.  At least that is the way it
looks to a user, and to the creator/copyright holder as well.  Do
the law and lawyers agree?

(a) If yes, the question becomes: How well do CC-licences protect
a creator/copyright holder, and the users, against someone putting
DRM on the work?  Do all CC-licences protect equally well against
DRM?  If no, how do the licences differ in this regard, and which
ones do protect well against DRM or any involuntary lock-in?

(b) If no (to the first question): Does that mean that
CC-licences, even copyleft licences, do not protect one against
having one's work locked into a closed, proprietary file format?
If that is the case, will the CC org. work to amend current or
create new CC-licenses that DO protect against involuntary lock-in
of works into closed, proprietary formats?

I consider this an important copyright issue, not only a user
rights issue.  The users are obviously better off without DRM and
closed, proprietary file formats.  But so is any creator/copyright
holder who does not want a digital lock on his or her work[*].
Such a lock interferes with the uses that the creator/copyright
holder wants to allow and encourage, and hence putting a lock on
any copy of the work violates the copyrights of the
creator/copyright holder.  Therefore the presence of a CC license
or a similar free licence ought to imply that "any lock on this
work is forbidden by the creator/copyright holder".  But do
current Law or laws see it that way?

([*] And, in fact, _any_ creator/copyright holder is better off
without digital locks and closed formats, because they take away
rights in the work from him/her and transfer them to
middlemen/distributors, putting the creator in a much weaker
bargain position both as a creator and as a user of other works,
and ultimately leading to less culture, less knowledge, less
freedom, less democracy etc.)

Thomas Gramstad
thomas AT efn.no
Electronic Frontier Norway -- www.efn.no