Development of Creative Commons licenses

[rob AT robmyers.org]

Quoting Evan Prodromou <evan AT prodromou.name>:

> This prohibition unacceptably limits Betty's rights under DFSG #1.

This incorrectly views the work as an aggregate rather than as a derivative if
the work Betty uses is not already DRM-ed. And if the work is Betty's own she
can release it proprietary under DRM with no problem.

If Betty is trying to add DRM to derive work she is effectively 
relicensing the
work proprietary, which DFSG certainly doesn't allow.

And even if it did, we are being asked to privilege Betty's 
distribution rights
over the world's usage rights. This includes Betty if she loses her 
original or
moves off of her DRM-ed system.

So I disagree with Debian's conclusion here.

> 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.

And if that format is specifically designed to defeat the DFSG?

For end-users the PS2 case is like the iPod case. In each case there is an end
device that can recieve TPM'ed data, but that crucially cannot and will not
transmit/distribute it. We need an "iPod clause" for end users, not a blanket
permission for DRM manufacturers and distributors. It is important that we are
clear that DRM can simply defeat the CC licenses even on non-DRM platforms by
making content usable only with DRM *software*. A blanket DRM allowance makes
the CC licenses useless.

It would be wonderful if the CC licenses could declare that work 
covered by them
is not covered by DRM, like the wording in GPL3 Draft 1 that declared that no
GPL3 code could be considered part of an effective TPM system. But I think the
code trumps the content.

For the iPod case, personal use of weak DRM on one's own system or of 
encryption
(which is not the same thing at all, despite much FUD to the contrary) is OK.
For iTMS or PS2, parallel distribution does look like the only option, unless
it is possible to have a shell program for the PS2 that will load and run
unsigned code. In fact how do homebrewers write PS2 games???

CC licenses could be usefully modified to say "you can store this on your
encrypted HD or on your iPod, and you may transmit it encypted as long as the
recipient has the keys to decrypt it at no cost and without restiction, 
but you
may not *distribute* it DRM'ed (or encrypted if the recipient does not 
have the
keys to decrypt it at no cost and without restiction as above).".

If we want to help sell PS2s and push DRM onto PCs rather than allow people to
actually use CC content on their as-of-yet-unencumbered PC's, the licenses
should say "If you cover this content with a TPM you must make an unencumbered
version of at least the same quality available at equal or lower cost and make
it the main version, listing or promoting it befoire the TPM-encumbered
version."

It is too early to capitulate and simply give balnket permission for DRM on
CC-licensed work.

> 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.

Everyone who doesn't own a PS2 benfits because the content cannot be locked to
PS2. There are more non-PS2 owners than PS2 owners. PS2 owners also 
mostly have
unencumbered PCs.

And by *not* priviliging sony (not PS2 users, as they do not benefit 
from DRM),
this removes some support for DRM. This is the absence of pressure for 
DRM, not
pressure against DRM.

> 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.

This is true, but it ignores the fact that these systems explicitly 
defeat Free
Software, making Debian and its guidelines worthless on such systems. Debian
supporting these systems is like a democracy electing a dictator.

> 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.

The problem is that the alternative will be offered in the bottom of a locked
filing cabinet stuck in a disused lavatory with a sign on the door saying
'Beware of the Leopard'. It will have a large handling fee, and will be 16-bit
64kbps quality in mono.

> 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.

It is more similar to dual-licensing, with all the distortions that involves.

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

Heck, no! :-)

- Rob.