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cc-licenses - [cc-licenses] Detailed discussion, was Re: PROCEDURAL SUGGESTION

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Subject: Development of Creative Commons licenses

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  • From: Terry Hancock <hancock AT anansispaceworks.com>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: [cc-licenses] Detailed discussion, was Re: PROCEDURAL SUGGESTION
  • Date: Wed, 04 Oct 2006 10:19:08 -0500

[RE: duration of a proposed promise to apply TPM to derived works to make them available on a TPM-only platform as a condition for applying TPM at all]

drew:
As long as he is distributing any works with the same license
elements hten?

That doesn't seem very logical at all. And note the problem with *who* is being required to provide this service. We have at least three parties here:

1) TPM-Keeper (TK): a person who has a right to a key, and can use it to wrap content (thus providing this service). He might be a community member who has shelled out cash for a key license or he might be affiliated or identified with one of the other parties.

2)TPM-Platform-Owner (TPO): the person (or more probably company) that created the TPM-Only-Platform in the first place. He is in a position either to permit TPM to be applied or to allow non-TPM work to run on his system.

3) TPM-Technology-Provider (TTP): the company whose technology is used to apply the TPM to works, typically contracted by the TPM-Platform-Owner

(none of whom is necessarily the content-owner or the recipient of the work who must agree to our terms)

Now, according to Mia Garlick earlier post, it is apparently the *TTP* who is the "copyright owner" who must give permission to legally circumvent a TPM system. Note how incredibly far we are from being able to apply any license pressure on this party!

If we have sway on any of these people, it's the TK. But he has almost no control over the legality or continued availability of TPM-conversion of anyone's work (even his own). He's under an essentially unconstrained contract with TPO and/or TTP to apply the key only according to their agreement. He might be charged a fee not only for having the key, but also for each time it is used, or for how many different packages it is used, or whatever. There's basically no legal limit to what this key licensing contract can demand.

Likewise, even if we are lucky enough to sway the TPO, he also may not be in a position to make promises which may be constrained by his contract with the TTP. In general, he'd find it easier to make it possible to play non-TPM works on his platform.

The TTP can provide the assurance we want (for example, if the TPM was developed under GPLv3, we already have the necessary permission), but it's unlikely that he will, and he is not party to our content licensing agreement (he doesn't have to agree to the CC license, because he's not trying to play or distribute the content).

> Our hypothetical community based TPM-keeper can't do it legally,
> because of the terms under which he receives the key.

Well, the community keeper could just keep functioning instead.

Um, *no*. I just said, he *can't* promise to do that legally. The TK's right to use the key can be revoked or may include (or have added) provisions prohibiting him from meeting the promise we demand of him.

BTW, I think it might be worth noting, based on my earlier comment about self-application of TPM and TPM-application being trivial and invisible: the TK could provide package-specific TPM-wrappers, just as they could proivd

Here is a fun condition:

Until the work goes into the public domain or until the keys are make
Free.

This is oddly unhelpful because it leaves the work locked under TPM even (in fact, only) when it enters the public domain (precisely when we should insist on it being free)! But it still has the problem with who's being bound to this promise, and what is the remedy if they break that promise (as they may be legally compelled to do by other contracts if they are the TK or TPO and not the TTP!).

Perhaps, but we must remember that this DRM hairball is not something
we created. We should perhaps think along the line of solutions where
all but obviously bad intentioned actors can implement easily. (Is
that clear?)

"The road to hell is paved with good intentions". We're not even necessarily concerned with "intentions", but rather with outcomes and freedoms. Even if someone enters into this arrangement with the best intentions they can still fail their promise, possibly not even through any action of their own, but by the action of other parties binding them.

The TK may promise in good faith to provide a conversion service for everybody. He may do this based on a flat-rate license offered to him by the TPO or TTP. But what if the contract is then changed so that he gets charged every time he uses the key?

What if the TPM is really, really nasty and locks a music copy down to a particular CPU or a particular O/S kernel (i.e. it's used in concert with "Trusted Computing")? So that "TPM distribution" is then meaningless, and TPM has to be applied for each copy? Then the TK has to keep his promise not just for every derivative work, but for every copy of that work. It becomes a practical necessity to charge for this service (this won't bother a TPO who plans to sell per-copy licenses anyway).

Perhaps I don't understand DRM properly but can't there be multiple
sets of keys for the same device? Can't they make a set which can
only be legally applied to Free Works?

The question isn't so much "can it be so?" as it is "can we require it to be so?".

But let's suppose there is such a set. Either it's published or it isn't. If it's published, then the keys can be used to make anything run on the platform. Thus the platform's TPM has been completely circumvented. There's no way to do this just for one group of packages.

If it's not published, then we are at the mercy of whoever is holding the key as to whether they will provide TPM conversion as a community service.

OTOH, it might be the case that there is a "free key" which allows packages to be TPM'd, but can't be used to de-TPM packages TPM'd with another key. However, this is equivalent to allowing the platform to simply play non-TPM'd content as well as TPM'd.

> And if we require such involvement from the DRM distributor, DRM
> platform owner, and DRM technology provider, why aren't we just
> asking them to contact the authors, get permission, and pay a
> royalty in order to sell the DRM'd version? They always have this
> option.

Well, I am fine with them contacting me and paying me to use my work
in a non-Free manner. (Possibly.) This is pretty much the dual
license model after all.

Right, and so long as per-copy or per-package monetary charges might be involved to create TPM versions, or so long as specific key licenses are involved, it seems like an agreement has to be found on a case-by-case basis anyway. If that's so, then the penalty of seeking permission from the author(s) doesn't seem unreasonable to me.

TPM kills the low-friction environment that free-licensing is supposed to create, so why bother trying to preserve it at this point? It seems to me that it's a rather empty gesture to make sure that copyleft protection isn't tying down a package that is already tied down by TPM (as if to say "Yes, it's not free, but it's not our fault that it's not free!").

What I'm trying to say is that if in the end, there is a solution, but it's more complicated than just seeking permission if you want to distribute TPM'd files, then it's better to keep it simple, and just go with the old-fashioned permissions approach.

This works pretty well if you think of the job of free licenses as protecting the fence around the commons, rather than trying to appropriate the territory outside of it: if we concede that TPM-Only platforms are okay, and that users of them should have the right to voluntarily restrict their freedoms by using them, then it's not unreasonable for them to acquire free content as they do non-free content, by paying for it on a copy-by-copy basis. And if that's going to be done anyway, then it seems only fair that it should it be the authors (not the TPO) who get compensated!

> It seems like we're in for some major slogging through the mud if
> we want to draft this kind of requirement. Lots and lots of
> details with risks at every step.

Well. Perhaps the simplest wording is transparent TPM + parallel
distribution and that will in effect cover all the bases. Then we
could draft a FAQ suggesting these various ways to achieve this.

It's already been established that we *can't* legally require that unless by "transparent TPM" you mean one for which the keys are already published. But at that point, the CC anti-TPM clause doesn't apply anyway, so no change is required (and "parallel distribution" is then meaningless). So, IOW, the only way we can word this is equivalent to what we already have, so why fix the unbroken?

Cheers,
Terry

--
Terry Hancock (hancock AT AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com






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