Development of Creative Commons licenses

[drew Roberts <zotz AT 100jamz.com>]

On Monday 25 September 2006 08:05 pm, Mia Garlick wrote:
> 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

I thought I understood where you stand on this but the above confused me. If 
the law only recognises the right for the "copyright owner" to consent to 
circumvention of DRM, and I as the copyright owner put my works under a 
license which consents to the circumvention of any TPMs on my work whenever 
and wherever they be found, and I give this as a blanket consent, in advance, 
where is the problem? I previously understood you to be saying that I as the 
copyright owner could not give consent to circumvent a third party's TPMs 
when they are applied to my works.

Which are you saying?
>
> > 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...

Wait, so the statute allows people who aren't the copyright owners to apply 
DRM to a work which then even the copyright owner has no right to circumvent?
>
> > 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...

Can you explain this in relation to that quote from the 2.5 BY-SA license 
with 
respect to the sync clause?
>
> > 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
> >

all the best,

drew

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