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Subject: Development of Creative Commons licenses

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  • From: melanie dulong de rosnay <melanie.dulong-de-rosnay AT cersa.org>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Detailed discussion, was Re: PROCEDURAL SUGGESTION
  • Date: Wed, 4 Oct 2006 17:49:44 +0200

thanks i'm beggining to understand better
i don't think the argumentation should rely on TPM circonvention rules and exceptions because states remedies to TPM-exceptions conflicts and DRM licenses may evolve quicker than legislation usually does

Le 4 oct. 06 à 17:19, Terry Hancock a écrit :

[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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