Development of Creative Commons licenses

[Evan Prodromou <evan AT prodromou.name>]

On Wed, 2006-09-08 at 14:21 -0700, Mia Garlick wrote:
> # Anti-DRM language - possible parallel distribution language
>
> Finally, there has been much discussion - preparatory to releasing  
> these drafts to the public - about whether to amend the CC licenses  
> to include a "parallel distribution" amendment to the existing "anti- 
> DRM" (or more correctly an "anti-TPM" (technological protection  
> measures)) clause of the CC licenses. 

I'll quote the original response the Debian CC Workgroup gave on this, to clarify (the original document is at http://people.debian.org/~evan/memoresponse.txt ):

4. Again, our recommendation was unclear. It may be easiest to
understand the problem with some examples.

    Case 1: Alice writes computer program documentation and releases
    it under a permissive BSD-style license. Moriarty converts the
    documentation to the NoWrites! (TM) e-book format which prevents
    copying or modifying the work. Moriarty sells the work on his Web
    site. Charlie buys a copy of the book from Moriarty, but because
    of the DRM technology he's unable to share copies with his friend
    Diane.

We assume that this is the problem that the anti-DRM clause is trying
to solve: a hostile re-distributor using technological means to
restrict the rights of recipients. However, we posit this
counter-example:

    Case 2: Albert writes an arcade game which includes images, video,
    music and sound effects licensed under Attribution 2.0. Betty
    ports the game to the Sony Playstation 2 platform. However, all
    PS2 games must be approved and signed by Sony in order to function
    on unmodified consoles, and this process includes mandatory access
    control. Assuming that this access control is not consistent with
    the terms of the Attribution 2.0 license agreement, Betty cannot
    distribute the ported game.

This prohibition unacceptably limits Betty's rights under DFSG #1. If
licensees can't distribute works in their format of choice, then the
works are not compatible with the DFSG and cannot be part of Debian.

On a qualitative level, no one benefits from this prohibition.
Preventing Betty from distributing the game doesn't help PS2 users in
any way; they're unable to play the game otherwise. Theoretically it
could pressure Sony to drop the DRM restrictions on the PS2 platform,
but that's an improbable result. We don't think the pressure advantage
on Sony is worth the loss of functionality and choice for users.

Note also that the PS2 is not the only platform where it's impossible
to distribute works without rights restriction; several text formats
for PDA platforms, for example, have mandatory rights-restrictions,
and the upcoming Trusted Computing platform ("Palladium") may fall
into this same category. The iPod is a good example of a music
platform with mandatory rights restriction.

Our recommendation #4 might better have been stated like this:

    Change the anti-DRM clause to allow the licensee to distribute the
    work in any format whatsoever, but require the licensee to
    offer at least one format that doesn't restrict the recipients'
    exercise of rights.

Consider this case:

    Case 3: Albert writes an arcade game which includes images, video,
    music and sound effects licensed under Attribution [future
    version], which allows distribution of works in rights-restricted
    formats as long as unrestricted versions are offered. Betty ports
    the game to the Sony Playstation 2 platform. She makes the ported
    game available for download on her Web site, and also has a link
    to the unrestricted JPEG, MP3, WAV, etc. formats of the images,
    music, video, and sound effects. Carlos downloads the game on his
    PS2 to play it. He can also optionally download the unrestricted
    files to modify and improve them, or to use them in other projects.
    
This is the parallel-distribution scenario. Betty exercises her right
to distribute in format of choice; Carlos gets a version he can play,
*and* a version that he can share, modify, and re-use.

We see this situation as similar (but not equivalent!) to the
distribution of source code and binary versions of programs in the
GPL. Anyone can distribute binary versions of GPL-licensed programs,
as long as they also offer a modifiable source code version, too.
Similarly, the proposed modification to the CCPL's anti-DRM clause
would allow distribution of works in any format, as long as a format
without rights restriction was available.

As an alternate strategy, we suggest that Creative Commons consider
dropping the anti-DRM clause altogether.