Development of Creative Commons licenses

[Evan Prodromou <evan AT prodromou.name>]

On Wed, 2006-27-09 at 22:38 -0400, Greg London wrote:
> > Although it's annoying and inconvenient, I think it's still possible for
> > Alice and Bob to exercise their freedoms w/r/t the work. 
> 
> If it really is so easy to get around DRM, then DRM Dave should
> be prohibited from making DRM versions in the first place,
> and Alice adn Bob should make non-DRM hardware to play
> the works without any DRM restrictions.

I'm not sure I follow why that's the case. It's relatively easy to "get
around" DRM if DRM Dave has to distribute an unencumbered version, too.
That's the whole point of parallel distribution: it lets people exercise
their rights even if the licensee distributes a work with DRM enabled.

I tried to present the hardest parallel distribution case I could think
of (sole source on the platform, undocumented proprietary format for the
unencumbered version). If you think it's easy, then I don't see why we
have a problem.
 
> > Where we fine-tune the
> > system is balancing our desire to Stop DRM Dave with our desire to
> > enable other people -- like Alice and Bob -- to continue doing
> > interesting things and sharing them with other nice people.
> 
> You can't have it both ways.

I think my point is that if you try to Stop Dave at all costs, you'll
inhibit sharing by other well-meaning people. If you say "no DRM'd
copies ever!", you stop well-meaning people from porting Free Content to
various platforms. If you say, instead, "no DRM unless you ensure the
rights of downstream users", I think we'd be drawing the line more
reasonably. Parallel distribution is a way to allow DRM while ensuring
the rights of downstream users.

> You can't argue here that prohibiting DRM versions will prevent
> Alice and Bob from sharing their works on Dave's DRM-only hardware.

Well, it prevents them from sharing on _any_ DRM-only hardware. In the
example, other factors also keep them from distributing on Dave's
particular hardware setup (namely, that he doesn't allow third-party
distributors to create files that work on his hardware), so it's not the
only factor that would keep them from doing it, but it's one.

> But then tell me above that even if Dave set himself up as a sole-source
> provider, that Alice and Bob could work around it, figure out the format,
> and create their own hardware players.

You missed the parallel distribution part, right? There was a part where
Dave had to distribute an _unencumbered_ (no-DRM) version of the Work
due to the parallel distribution requirements in the (theoretical)
license for the song. That's what makes it easy.

> If it is a hard task for Alice and Bob to work around Dave's DRM-only
> hardware, then Dave can become sole source provider of works,
> and no one will be able to stop him, because its too much work,
> and therefore Dave should be prohibited up front by the license
> from putting CC works under DRM.

I'm not sure I see why your conclusion follows from your premise. It is
a hard task for A & B iff Dave isn't required to provide an unencumbered
copy. If he is, then it is a relatively easy task, and can be made
considerably easier if, say, Dave provides unencumbered versions in a
documented format with many development tools available, like WAV or Ogg
or MP3.

> If it is an easy task for Alice and Bob to work around Dave's DRM-only
> hardware, then prohibiting DRM versions of the work will not prohibit
> Alice and Bob from sharing the work, they can simply build their
> own hardware. And if this is the case, then there is no harm from
> prohibiting Dave from creating DRM-only versions of the work.
> 
> Hard or easy, I get the same result: No DRM should be allowed.

You're starting from a premise that no third party can create works to
run on the DRM-only platform. Although that is possibly the case, and
having a single authority decide who gets to distribute on the platform
can be quite restrictive, in practise it hasn't been the case so far.
There are many copy-protection schemes that let third-party distributors
use the platform -- like iTunes -- and I think we'll see more as
Palladium and other Trusted Computing systems get built into PC hardware
and OSes.

The point of the requested parallel distribution change is this: IF
someone can distribute on the DRM-only platform, and IF they want to
distribute a CC work on that platform, they're allowed to by the
license, but ONLY IF they provide a non-DRM-covered version of the work,
too.

> Your argument chooses "Easy" when I bring up the concern about
> Dave being sole-source provider. You answer by saying it would
> be "easy" for Alice and Bob to work around Dave so he is no longer
> sole soure.

It'd be possible; maybe not easy.

> But then your argument switches to "hard" when you bring up the
> concern that Alice and Bob won't be able to share the work on
> Dave's DRM-only hardware.

Well, that's a different task. If they want to listen to the music or
share it with others, they "just" need to decode the unlocked version of
the file and play it on some other hardware. If they want to convert it
to a locked version of the file (assuming that Dave's player only plays
the locked version), and only Dave has the tools to make locked version,
then it gets a lot harder. Not only is it probably tricky technically,
but it's also going to put them in legal trouble, at least if they're in
the US.

>  YOu say it would be too hard for Alice
> and Bob to create their own hardware or distribute the work on
> some alternate hardware that they build themselves.

I think that it's hard reverse-engineering file formats, designing audio
hardware, software emulators, or whatever. However, I don't think it's
_too_ hard, and we have proof by the existence of so many great Free
Software projects that can play, modify, and edit proprietary file
formats that it's possible.

Let me also point out that there's nothing in the CC licenses right now
that requires the work to be distributed in a open-standard format.

> So, you change your premise as to whether it would be hard or easy
> for Alice and Bob to work around Dave's DRM-only hardware and
> roll their own player, depending on what resulting conclusion you need
> to reach.

No, I think you just misunderstood part of the scenario. Maybe you
should read it again?

> If you pick one for both cases, like I do, then an anti-DRM clause
> is either protection from evil Dave becoming sole-source, or
> irrelevent and will cause no harm to Alice and Bob. Protection
> from possible evil, and causing no harm to good people.

I don't think an anti-DRM clause is a protection against evil Dave
becoming a sole source of works for his platform. Dave sets those
parameters when he designs his platform and when he refuses to let other
people publish on the platform.

There will be many platforms where there is only one publisher who
provides content for the platform -- perhaps because the platform is
very new or very old or marginal in the marketplace or because the
platform owner has set up legal or technical barriers to others. I don't
think it's CC's job to force a diverse publisher market on any
particular platform, but rather to ensure that users of CC works have
the rights that the Licensor intended.

~Evan