Development of Creative Commons licenses

[Mia Garlick <mia AT creativecommons.org>]

On Sep 25, 2006, at 3:31 PM, drew Roberts wrote:

<cut>

> > > > > 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.
>
> I get your point, I will concede it for the rest of this thread.  
> But, if in
> practice, iTunes is the only party capable of putting the TPM on  
> the works in
> question, what then? Would that make a difference if it was the  
> same party?

so even then, i think you still have the issue of the party who is  
consenting to the circumvention (here, Alejandra) is not iTunes nor  
anyone authorized by iTunes...so even if iTunes put the TPM on  
themselves and were the licensee, i don't think anyone is going to  
read s1201 as saying that a person unrelated to iTunes can then  
authorize circumvention of iTunes' DRM....(note that iTunes would be  
in breach of the anti-DRM clause of the license at this stage but  
that's a separate matter)...

i think the point of the consent provision in 1201 is to say that the  
person who giveth (although DRMs really take away but bear with me)  
can also taketh away...i don't think it can be read, logically, to  
say that one person can impose DRM and other unrelated people can  
lawfully authorize their circumvention...

while that may be a desirable outcome for many in this and other  
communities, it would defeat the purpose of the provision, even if  
the language of the provision could be argued to be so vague as to  
allow it...


> all the best,
>
> drew
> > > > 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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> > > > > --
> > > > > (da idea man)
> > > > > http://www.ourmedia.org/node/145261
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> > > --
> > > (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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> --
> (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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