Development of Creative Commons licenses

["Greg London" <email AT greglondon.com>]

Oh, I'm such an idiot.
This just clicked about 15 minutes ago.

The problem, in part, appears to be that
the parallel distribution folks want to
metaphor DRM as being equivalent to a
binary, and source code distribution becomes
a parallel copy of the work.

This is inaccurate.

A DRM-only hardware platform is equivalent
to a software patent. Software patents
when mixed with GNU-GPL'ed code can go
one of two ways.

(1) The patent holder wishes to impose his patent,
restrict usage of the GNU-GPL'ed software,
while using the software to his benefit.
The patent holder wants to take all the
benefits from the Free software community,
but use a patent to give nothing back.
And they will use patent law to enforce
some functional monopoly.

(2) The patent holder allows the functionality
in the patent to be rolled into the GNU-GPL
code, and allows anyone to use that code,
and modify that code, including modifying the
functionality, without imposing a patent
monopoly. The patent becomes Free in some
sense.

GNU-GPL requires number 2.

If you take GPL software and create some software
patent, you must allow that functionality to be
freely used in the community, or your license to
the original GNU-GPL work is revoked. To quote GNU:

:: We wish to avoid the danger that redistributors
:: of a free program will individually obtain patent
:: licenses, in effect making the program proprietary.
:: To prevent this, we have made it clear that any
:: patent must be licensed for everyone's free use
:: or not licensed at all.

DRM is like a software patent.
It could either be monopolized or it could be
something that Dave allows free use of.

If DRM is monopolized by Dave, it gives him a
platform monopoly. It isn't the same as a software
patent's functional monopoly, but it is similar in
spirit. It is a monopoly on the platform.

Now, DRM itself can be allowed and still be free,
the same way software patents can be allowed in
GNU-GPL and still be Free: Namely, DRM must not
allow Dave a monoply.

You can either enforce this by requiring that
Dave must allow anyone to apply DRM to a CC-SA
work that he applies  DRM to,

OR you say No-TPM for distribution, but allow
people to apply TPM locally.

In either situation, if Dave attempts to monopolize
his platform, the license must forbid him from
taking advantage of the community work.

I believe CC's current anti-TPM clause,
such that it allows local appliation of TPM
but not distribution is favorable.
The problem I see with authorization is that
DRM laws can and probably will change, and
I see potential loopholes being created in the
future if CC tries to create a license that
demands authorization for anyone to apply DRM
if Dave applies DRM.

But the gist of this whole email is this:

DRM is not like a binary,
and parallel distribution is not like Source distribution.

DRM is like a software patent.
Rather than allowing a functional monopoly,
DRM can allow a platform monopoly.
ANd like the way GNU prohibits a functional
monopoly, but will allow software patents
if they are made Free to the community,
so to should DRM be allowed to be applied
locally, but prohibited from creating
a distribution channel that monopolizes a
DRM-only hardware platform.

To allow DRM Dave to have a platform monopoly
and argue that parallel distribution on a different
platform is Free, would be to argue that we should
allow software patent monopolies, because Alice and
Bob would really like that functionality, and
what's a little monopoly hurt, anyway?

It does not pan out.

GNU-GPL revokes the license if a software patent
isused to attempt to enforce a functional monopoly.
Anti-TPM does a similar restriction if DRM Dave
attempts to use DRM+DMCA to enforce a platform
monopoly.

Both protect the community from a monopoly.
Parallel distribution wiht DRM does not.

Greg