Development of Creative Commons licenses

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

On Thursday 28 September 2006 01:47 pm, Greg London wrote:
> 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.

First let me say that I am a fan of copyleft htings and so mostly think of 
things CC from the BY-SA point of view.

Greg, I think you are hitting a lot of things square on the head here.
>
> 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.

So, should we have an anti-TPM clause with an exception for platforms where 
any actor can put the DRM on the file, but not allow it for platforms where 
only licensed actors can put on the DRM? (In cases of DRM only platofrms.) 
And that requires parallel distribution in cases where the exception is 
granted.
>
>
> 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.

all the best,

drew
-- 
(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