Development of Creative Commons licenses

[Mia Garlick <mia AT creativecommons.org>]

it was included on line 42 of pages 14-16 of the table attached at  
the bottom (forgive me) of this email posted to the list: http:// 
lists.ibiblio.org/pipermail/cc-licenses/2006-September/004027.html

# the comment was:

I'm surprised nobody AFAICT has suggested just that -- rather than  
disallow DRM, explicitly give authority to circumvent.  The DMCA  
seems to allow this -- http://thomas.loc.gov/cgibin/query/D?c105:6:./ 
temp/~c1059gv3KK:

`(A) to `circumvent a technological measure' means to descramble a  
scrambled work, to decrypt an encrypted work, or otherwise to avoid,  
bypass, remove, deactivate, or impair a technological measure,  
without the authority of the copyright owner; and

GPLv3 draft 2 maybe does this — http://gplv3.fsf.org/gpl- 
draft-2006-07-27.html

No covered work constitutes part of an effective technological  
“protection” measure under section 1201 of Title 17 of the United  
States Code. When you convey a covered work, you waive any legal  
power to forbid circumvention of technical measures that include use  
of the covered work, and you disclaim any intention to limit  
operation or modification of the work as a means of enforcing the  
legal rights of third parties against the work's users.

# the response was:

While the use of the term “copyright owner” as used in Section 1201  
is arguably imprecise, the conclusion that it authorizes CC licensor  
to consent to the circumvention of a third-party’s TPM applied by a  
CC licensee is seriously flawed.

To date, to the extent the courts have considered this term, it has  
been in the context of movie studios authorizing DVD manufacturers to  
make DVD players that read CSS; in the context of Real Networks suing  
for the cracking of their DRM, or in the context of a garage door  
opener’s consent to a consumer unscrambling a code they applied to  
their own garage door open.  In other words, the relevant copyright  
owner who can authorize circumvention of a TPM is the copyright owner  
of the work who applied the TPM to the work in the first place or the  
technology company that developed the TPM and applied it to the work  
with the consent of the copyright owner of that work.

It would defeat the purpose of Section 1201 (which is to protect the  
technological locks voluntarily applied by copyright owners to their  
works) if Alejandra could, for example, apply a CC license, with a  
circumvention consent provision in it, to her work and Benito could  
then place it on iTunes and, by virtue of the CC license, Carlos  
could then lawfully decrypt iTunes.  Given the technological measure  
referred to in Section 1201 has to have been applied with the  
authority of the copyright owner, this consent provision does not  
seem to give copyright owners the power to authorize the  
circumvention of technological measures applied by someone else such  
as a licensee.  If this were the case, competitors could release  
their works on terms that would authorize the circumvention of  
another’s TPM.

Finally, GPL v3 draft 2 does not seem to be invoking this provision.   
The quoted text seems to be saying that GPL-licensed code cannot form  
part of a technological measure that is protected under Section  
1201.  It is not saying that a copyright owner has the power to  
authorize the circumvention of a technological lock applied by  
someone else to their work.



On Sep 25, 2006, at 6:01 AM, Terry Hancock wrote:

> Greg London wrote:
> > > > 3) allow DRM/TPM, but explicitly grant permission to crack it
> > >
> > > as i indicated in the table circulated on the list earlier, this is
> > > not imo, a viable option.
> >
> >  I'm sorry. I must have skimmed over that email in a rampant battle
> >  with spam. could you send a URL to the archives where this is
> >  explained?
>
> Obviously, I hadn't seen it either, so maybe it bears repeating?
>
> >  Of all the options, I thought this was the best because it allowed
> >  TPM, which should make debian folks happy, it didn't require  
> > parallel
> >  distribution, which should make someone happy, and it authorizes
> >  circumvention, which means that if TPM actually IS used to attempt a
> >  fork, it cannot be maintained.
>
> I like the explicit permission to crack TPM, because of these reasons,
> but I would like the license to *also* require parallel  
> distribution as
> an additional safeguard.
>
> The problem is that while the permission to crack the TPM defeats
> the legal obstacle (at least barring Mia's objection, which as I  
> say, I
> haven't seen yet),  it still potentially leaves the technical obstacle
> in place (IOW, we're still limited by the sophistication of our  
> cracking
> technology -- on the plus side, that provides a legitimization of such
> technology projects, but I don't think that's a good enough reason).
>
> A potential half-way point would be to re-word the anti-TPM language
> to be more evidently anti-"use of TPM to impede distribution", e.g.:
>
> "You may not use technological protection measure in such a way that
> they impede the further distribution or examination of the  
> content,..."
>
> and then one could add the permission incidentally:
>
> "furthermore you grant permission to circumvent any TPM measure
> imposed on this content by you or others"
>
> (obviously, IANAL, but I hope this conveys the general idea).
>
> The point is, I'm pretty sure that enables Debian's "parallel  
> distribution"
> concept without a lot of complexity, without much change from what's
> already in the license, and while still retaining a negative  
> connotation
> for TPM (which ISTM was the real objection at iCommons, from the
> description I've heard).
>
> On a related note, the United States congress is now considering a
> bill to make this permission an implicit part of US law (a much better
> long-run solution), in the form of "HR 1201" which is supposed to
> amend the DMCA to allow circumvention, whenever access would
> otherwise be permitted by copyright law (my paraphrase).  The EFF
> has a nifty tool to help send your opinion to your congressman if you
> are a US citizen:
>
> http://action.eff.org/site/Advocacy?id=115
>
> Cheers,
> Terry
>
>
> --
> Terry Hancock (hancock AT AnansiSpaceworks.com)
> Anansi Spaceworks http://www.AnansiSpaceworks.com
>
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