Development of Creative Commons licenses

["Greg London" <teloscorbin AT gmail.com>]

Debian's entire argument appears subtly flawed.
Here is my full analysis. It's a bit long, but
it should be an entirely self contained argument,
so you shouldn't have to go read any other emails.

Actors:
Alice and Bob: generic users in community
DRM Dave: manufacturer of hardware platform that plays DRM content.
ShareAlike Sam: Creator of some work, which Sam licensed CC-SA.


Debian's focus appears to be on Alice and Bob. Debian's priority
appears to be that Alice and Bob should be able to transfer Sam's work
onto Dave's hardware, using DRM if neccessary to make the transfer.
Therefore, Debian views the anti-TPM clause as restricting Alice and
Bob from copying the work to a platform.

However, Debian's position assumes Dave is "friendly".

DAVE alternatives:

(1) DRM+Open Dave: Dave's hardware plays open formats as well as
DRM-enabled formats. DRM+Open Dave is friendly because he allows open
formats up front by the design of his hardware.

(2) DRM-ONLY-but-friendly Dave: Dave's hardware plays only DRM-enabled
formats. however, Dave will give permission to Alice and Bob to encode
Sam's content to a DRM-enabled format.

(3) DRM-ONLY-Monopolistic Dave: Dave's hardware plays only DRM-Enabled
formats. And Dave will not give permission to anyone to create
DRM-enabled works that play on his hardware. Dave will maintain a
monopoly as sole source provider for content on his platform.


Debian's argument either assumes Dave is "friendly" or does not
consider Dave at all. However, upon further inspection, their argument
only works if the actor Dave is the oddest varient of the three
possible alternatives: DRM-Only-but-friendly. Here's why:

If the situation involves DRM+Open Dave, then the anti-TPM clause
harms no one. Alice and Bob and Dave can all equally  upload a non-DRM
version of Sam's content to the hardware platform and play it.

If the situation involves DRM-Only-Monopolistic Dave, then the
anti-TPM clause is absolutely required to prevent Dave from exercising
his monopolistic position over Alice and Bob. Alice and Bob cannot
create a DRM-enabled version of the content and must go to Dave to get
a copy of the work. Dave, given his monopolistic position, could take
further advantage by charging a buck a copy for a DRM-enabled version
of Sam's work, even though Sam would have made a DRM-enabled version
for free, if only Dave would give him permission. For anyone to argue
that this scenario is acceptable, that an anti-TPM clause is not
needed here, needs to get a grip as to what FLOSS really means.

Therefore, the only variation of Dave that makes Debian's argument
make sense is that Dave is DRM-Only-but-Friendly Dave. Dave's hardware
only plays DRM-enable works, therefore, the anti-TPM clause is a
hindrance to alice, bob, and dave. Without the anti-TPM clause, Debian
is arguing from the position that Dave will gladly give Alice and Bob
permission to create DRM-enabled versions of Sam's content. And
anyone, Alice, Bob, Dave, and even Sam, can create DRM-enabled
versions of Sam's content, and everyone in teh community has equal
rights to the work.

What Debian fails to address is why Dave would create hardware that
only plays DRM-only work, but give up his monopoly after construction
by giving permission to anyone to create DRM-enabled works? Why not
design the hardware up front to handle some sort of open format that
does not have DRM?

The argument is naive.

Further examination of Debian's argument reveals that the argument
ignores whether Dave can be sole source provider for his hardware
platform. Debian argues that this is a non-issue.

If Dave comes out with a DRM-only hardware player, if he takes some of
Sam's content and converts it to DRM-enabled format, and if he charges
Alice and Bob for copies of this content, Debian appears to be arguing
that this is irrelevant.

Why?

Because when presented with this scenario, Debian ignores the fact
that Dave is the only source for DRM-enabled versions of the content
that plays on the hardware. Instead, Debian argues that parallel
distribution will allow Alice and Bob to get non-DRM versions of the
work that will play on their PC.

But this does not allow Alice and Bob to play the work on Dave's
hardware. Alice and Bob still have to PAY Dave if they want a version
that plays on Dave's hardware.

But Debian ignores this. Instead, Debian argues that parallel
distribution will allow Alice and Bob to get a DRM-Free version of the
content that will play on teh PC.

The problem is that this ignores the fact that Sam probably made the
original version available in a non-DRM format that played on a PC.
Alice and Bob don't need a parallel copy from Dave to play on a PC.
Parallel distribution gives them a copy of something they already have
from Sam.

What Debian ignores is that Dave has a monopoly on his platform. A
monopoly of what should be FREE content, free as in speech.  But
because parallel distribution allows Dave to apply DRM, and does not
demand that Dave allow anyone else to apply DRM and does not demand
that Dave authorize circumvention, Dave has a monopoly on his
platform.

Dave's platform monopoly is why I support anti-TPM. Because anti-TPM
does not hurt when we're talking about any hardware platform that
allows open formats. The only time anti-TPM kicks in is when Dave
designed his hardware such that you MUST have DRM-enabled works. But
if Dave didn't design his player to allow open works, why do we assume
he will grant everyone permission to create DRM-enabled versions of
works? Why doesn't he just make the hardware so it plays non-DRM
works?

Debian's respons to this appears to be a complaint that Alice and Bob
will not be allowed to convert a work to a DRM-enabled format to play
on DRM-Dave's hardware.

Which is odd. It changes the priority. Up until this point, the
argument has been that parallel distribution means that even if Dave
distributes a copy on his DRM-only hardware, Alice and Bob will get a
parallel copy that they can play on their PC. On their Desktop. On
another piece fo hardware. Parallel distribution does not guarantee
that Alice and Bob will be able to play the content ON THE SAME
PLATFORM.

But now, when anti-TPM is proposed, Debian responds with the argument
that anti-TPM will keep Alice and Bob off of a specific platform.
Debian now argues that the platform is important, not just a parallel
copy of the work.

Lets just get something straight here:

Anti-TPM will keep everyone off of one particular type of hardware
platform: A platform that only plays DRM-enable works, and does not
play open, non-DRM formats.

If you drop anti-TPM, Alice and Bob can port the work to the
particular platform, ONLY IF DAVE PERMITS IT. Dropping anti-TPM does
NOT GUARANTEE Alice and Bob will be able to convert the work to play
on teh platform, it simply allows SOMEONE to do it. ANd worst case,
that someone is DRM-ONLY-Monopolistic Dave.

Meanwhile, parallel distribution does not guarantee that everyone will
be able to convert a work to a particular platform, only that SOMEONE
will be able to do the conversion. ANd, worst case, that someone is
Dave again. Parallel distribution does not prevent a platform
monopoly.

And while Debian argues that anti-TPM will keep alice and bob off of a
hardware platform, it only does so if the platform is DRM-only, in
which case, dropping anti-TPM will simply result in Dave being sole
source provider and parallel distribution will give alice and bob
copies of Sam's work on their PC which they already have.

Debian argues against anti-TPM on the grounds that it will keep Alice and Bob
off of a DRM-only player. However, if you DROP the anti-TPM clause and
replace it with a parallel distribution clause, you STILL are not
gauranteed that
Alice and Bob will be able to play the work on some DRM-only player. They may
need to go through Dave and pay him a bunch of money for something that
is free on every other platform.

Parallel distribution does not guarantee Alice and Bob will be able to play 
the
work on DRM only hardware. DRM Dave may not permit anyone convert the
work to his platform (I believe the British or European record
licensing organization
has some clause that explicitely forbids any CC licensed works from
being listed,
or something to that effect, so this isn't such an outrageous
possibility), or Dave
may decide to convert the works himself and charge a chunk of change for
downloading copies. Parallel distribution neither guarantees you'll be able
to play on a particular hardware platform, nor does it protect against
monopolies.

As far as I can tell, nothing will guarantee you will be able to play a work
on a DRM-only hardware platform. If Dave is restrictive enough, he may
forbid it completely. And no clause in any CC license will change that.

At the very least, and anti-TPM clause will prevent Dave from exercising
a monopoly of the work on his platform. If his platform plays open, non-DRM
formats, then anti-TPM becomes invisible. If his platform plays only DRM
files, then some sort of protection is needed to prevent Dave from
monopolizing his position on that platform. If Dave won't allow open formats,
then the only license clause that will guarantee equality is anti-TPM.

Parallel distribution does not guarantee you'll be able to play on the 
platform,
and it does nothing to prevent a platform monopoly.