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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 15:10:25 -0700

comment below.

On Sep 25, 2006, at 2:31 PM, drew Roberts wrote:

On Monday 25 September 2006 04:43 pm, Mia Garlick wrote:
two comments below:

On Sep 25, 2006, at 1:36 PM, drew Roberts wrote:
On Monday 25 September 2006 11:01 am, Mia Garlick wrote:
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.

In a sane world, this would be iTunes problem as they could easily
have a
system which put DRM on some tracks and left if off of others. If
they choose
to put it on tracks where the copyright holder specifically
disallows such
measures or only allows them with a provision of circumvention,
that hsould
be their tough luck.

Where is this thinking flawed? (Other than this is not a sane world.)

your response assumes that it is iTunes that puts it on the track.

Well, yes, and if that is not the way how this works then my logic would not
hold. Can anyone confirm how this really works? Does apple really hand out
the keys to encrypt content to any and everyone, or do they do it themselves,
or do they only hand out the keys to encrypt under contract? Or do they use a
public key type system.

all the best,

drew

with respect, i think you're missing the point. the point is not what happens in practice. the point is what section 1201 will be interpreted by a court to mean. a court is not going to uphold an interpretation of this clause that allows Alejandra to place a license on her work that authorizes Carlos to circumvent iTunes. the statutory language does not support this interpretation - the TPM must have been applied with the authority of the copyright owner (in the envisaged scenario, the TPM is not applied with the authority of the copyright owner). the statutory intent of the clause is not to find ways for people to circumvent DRM, quite the opposite. this is not a productive line of ongoing discussion.


in the hypo given, it is Benito who puts it n the track...why should
iTunes' DRM be vulnerable just because some random third party puts
it on Alejandra's track?


also, it is beyond comprehension that the DMCA laws were introduced
to allow party A to authorize circumvention of an unrelated party I's
DRM. the consent provision can only, logically be read to authorize
party I to authorize select people to circumvent party I's DRM so
that it is not always a violation of the law to circumvent DRM; you
can circumvent DRM with the consent of the person who authorized the
DRM being put on the work. using the hypo names given, the law
should be read to mean that: Alejandra can release a work under a CC
license with her DRM on it and then authorize people to circumvent
it...that is a far cry from Alejandra authorized Carlos to circumvent
a third party DRM applied by Benito...

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.

I think you have this spot on as it relates to the GPL. It is not
talking
about other works at all but about this work being considered a
part of an
effective technological measure. (At least I read it the same way
you do. If
I understand your take correctly.)

all the best,

drew

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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_______________________________________________
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cc-licenses AT lists.ibiblio.org
http://lists.ibiblio.org/mailman/listinfo/cc-licenses

--
(da idea man)
http://www.ourmedia.org/node/145261
Record a song and you might win $1,000.00
http://www.ourmedia.org/user/17145
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