Development of Creative Commons licenses

[Rob Myers <rob AT robmyers.org>]

Terry Hancock wrote:

> The definition of "Corresponding Source" insists on the availability
> of any keys necessary to make a binary built from the source compile
> and run on the platform.  This includes whatever key or software is
> needed to put a DRM wrapper on the file, if the platform is DRM-ONLY.
>
> Due to the DMCA considerations mentioned up-thread, this information
> is (well, "may be", but "is" for the same worst case "DRM Dave"
> scenario that we've been discussing) illegal to distribute.

Not if the implementation of that DRM is covered by the GPL-3 and the 
DRM vendor has followed their obligation to provide the key. This is why 
I mention that DRM may be covered by the GPL-3.

> Hence GPLv3 prohibits distribution of the DRM'd version for the DRM-ONLY
> platform.

If the DRM-only platform is not covered by the GPL-3 . Which I'm 
guessing will be fairly common. ;-)

This is conceptually similar to prohibiting binary-only distribution 
(viewed technologically, and I understand the dual distribution response 
to this but find it impractical and agree with Greg) and prohibiting the 
imposition of restrictive licensing terms (viewed legally).

But I believe that CC licenses are more restrictive than this, and I 
will discuss this next.

> But, this is precisely the same limitation that is being objected to 
for the
> CC-By-SA-3.

I believe that Debian are objecting to two related issues:

- DRM cannot be added to CC licensed work for private use.
- CC licensed work cannot be distributed with DRM added.

The first point is a breach of both the DFSG and the FSD. More 
importantly it is a breach of Fair Use. It is therefore unacceptable 
both for Free Software and more importantly for Free Culture.

The CC-NC-SA v3 draft (like its predecessors) has a Fair Use statement 
but its DRM restrictions appear to clash with this for personal use, so 
the license should be regularised. Looking at clause 4a I think that if 
CC change "impose any technological measures on the work" to "distribute 
the work with any technological measures imposed" then we have a clear 
equivalent to the GPL.

If I have misunderstood the license and this is already the case then I 
apologise profusely.

The second point is not a breach of the FSD, and is not a breach of Fair 
Use IMHO (the use is not personal and is competitive). I also believe 
that it is not a breach of the DFSG, but *even if it was* this would not 
be a primary issue for a Free Culture license rather than a Free 
Software one.

> So, if you released a song under the GPLv3, instead of CC-By-SA-3, you
> still can't port it to a DRM-only platform.  The reason is that you 
cannot
> provide "Corresponding Source" for it, which would be the non-DRM
> song, plus the DRM key so that it can be DRM'd for the platform.  The
> GPL says that if you can't distribute the source, you can't distribute
> the binary.
>
> The explanation is a little different, but the result is the same: both
> GPLv3 and CC-By-SA-3 would block the kind of distribution Debian
> is asking for (at least in Greg London's example case).

I have explained above how I believe CC-3 goes further.

Greg's example case is the current standard use of DRM. This is how 
current music stores, music players, game consoles and handhelds all use 
it.

All the hardware for these systems will currently play non-DRM media 
though. So it is only when we wish to volunteer to take on the problems 
of proprietary game software developers that there is a problem.

>>  One solution for CC and Debian, based on the Scottish license
>>  language that MJ Ray has mentioned, would be for CC to allow only
>>  ineffective DRM to be applied. This would be DRM where blanket
>>  permission to circumvent has been given *by the DRM vendor*, as is
>>  included in the GPL-3.
>
> But I think Greg has a point: anyone who's going to provide that could
> more easily just let non-DRM'd media play on the platform, leaving no
> reason to allow DRM at all.

I agree. But if people wish to use Free Software on DRM platforms, this 
would allow them to do so under GPL-3. This would answer Evan's argument 
that the licenses prevent work form being used by Free Software on DRM 
systems.

>>  If they still find the second draft incompatible with the DFSG they
>>  are confusing "use" with "distribution" in the same way that the
>>  Linux Kernel Hackers are.
>
> That's a strong assertion (that the Linux Kernel Hackers are indeed
> misunderstanding). I'm not sure Eben Moglen understands the full
> impact of the new wording in the GPLv3. It's too new.

You are correct and I apologise for this comment.

- Rob.