Development of Creative Commons licenses

[Mia Garlick <mia AT creativecommons.org>]

comment below:


On Sep 25, 2006, at 4:49 PM, Terry Hancock wrote:

> Mia Garlick wrote:
> >  your response assumes that it is iTunes that puts it on the track.
> >  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.
>
> I think we all agree on that.
>
> > 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.
>
> So far, so good.
>
> > 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...
>
> EXCEPT: Benito is ONLY authorized to apply DRM in the first place,  
> if he
> consents to ALSO authorize that DRM to be decrypted (for that work).

right but the issue is that the law only recognises the right for the  
"copyright owner" to consent to circumvention of DRM.  Benito is not  
a copyright owner but a licensee. (Alejandra is the copyright owner;  
arguably iTunes is a copyright owner of the software that constitutes  
its DRM so those are the only two parties who can consent to the  
circumvention)  so there is no legal support for this provision and  
it could, in fact, dangerously mislead people

> This is the copyleft concept again. Once again, the only thing that
> gives Benito the right to apply the DRM, is the license, which itself
> insists on Benito agreeing to certain terms, including the  
> consent.  If
> he doesn't agree, then he can't apply the DRM in the first place.

this isn't the issue. the issue is whether the statute recognizes the  
right of someone else to circumvent the DRM applied by Benito.  the  
license can authorize Benito to apply whatever it wants...

> None of this gives anybody the right to access other people's works on
> the same device, even if, by chance or design, the decryption key  
> is the
> same as for the CC licensed work.
>
> The point of this provision, of course, is to make DRM legally  
> toothless
> for the work in question,

yes, i realise that's the point of the provision but the point is  
that this provision will be legally toothless and mislead people into  
thinking that they have authority to circumvent things when they  
don't...

> so in that sense, it may seem silly.  But the
> reason is clearly that there may be *technical* reasons why only a  
> DRM'd
> file can be used on a given platform -- which would be the reason why
> Benito would be interested in applying the DRM, even though he  
> knows it
> doesn't buy him any exclusivity.
>
> Consider this analogy...
>
> If I buy a house in a housing development, and I accidently lock  
> myself
> out, I'm still entitled to access my home.  I can do this by calling a
> locksmith to "crack" the lock on my house, making me a new key in the
> process.

the specific section 1201 do not apply to situations such as this.   
it is a specifically crafted section designed for a particular set of  
circumstances.

> Now even if it turns out that my new key will open every other  
> house in
> the development, so that my new key would allow me access to everyone
> else's house, we can conclude that my housing developer is very  
> stupid,
> but this can in no way be considered my concern.  I still have a right
> to access the house.
>
> Likewise, the fact that, in principle, the same locksmith could defeat
> any lock, whether I have legitimate claim to the access it is
> protecting, isn't really relevant. Yes, that's what locksmiths do.
>
> Likewise, wire clippers can cut any fence, but I am entitled to cut my
> fence, while cutting someone else's is a crime.
>
> Cheers,
> Terry
>
> --
> Terry Hancock (hancock AT AnansiSpaceworks.com)
> Anansi Spaceworks http://www.AnansiSpaceworks.com
>
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