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cc-licenses - Re: [cc-licenses] Subject: Re: Version 3.0 - List Discussion Responses

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Subject: Development of Creative Commons licenses

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  • From: Mia Garlick <mia AT creativecommons.org>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Subject: Re: Version 3.0 - List Discussion Responses
  • Date: Mon, 25 Sep 2006 08:01:39 -0700

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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