Development of Creative Commons licenses

[James Grimmelmann <james AT grimmelmann.net>]

Mike Linksvayer wrote:
> On Wed, 2006-11-29 at 12:43 -0500, Benj. Mako Hill wrote:
> >   Let's say that there is a popular piece music under a permissive
> >   CC license. Now let suppose that a manufacturer of electronic
> >   greeting cards and small musical snow-globes wants to use that
> >   piece of music as part of their cards and music boxes. Neither
> >   devices have the ability to modify the music or even to copy it
> >   off.
> >
> > First, is this a violation of the current anti-TPM language? It seems to
> > me that it probably is. If you think that is not, I'd love to hear why
> > you think that technical restriction is fundamentally different between
> > a greeting card and DRM. The key difference seems to be intentionality,
> > but the license doesn't talk about that and probably shouldn't.
>
> I doubt an artifact that doesn't actively facilitate digital copying
> would be considered to have TPM.  If that was the case a photo on paper,
> or text on paper, would be TPM.
>
> This is important because DMCA and its ilk only makes circumventing TPM
> illegal, not making any analog copies.  So there is no reason for a
> license to care about this case.
>
> No?
>
> IANAL...

IAAL.

This is a case in which the phrase "technological measure" or 
"technological protection measure" is ambiguous.  Under the DMCA, there 
are separate provisions for TPMs that control "access" to a copyrighted 
work, § 1201(a), and those that "protect[] a right of a copyright 
owner," § 1201(b).  The DMCA forbids both circumvention and trafficking 
in circumvention devices where access is at stake, but only trafficking 
in devices where it is a copyright holder's rights at stake.  I have 
never seen a convincing explanation of or justification for the distinction.

The language in the CC 2.5 licenses on point refers to both "access" and 
"use," which would seem to be a clear attempt to track the DMCA.  Under 
that language, that the artifact was designed without digital copying 
features may itself be the "technological measure" that protects the 
copyright holder's rights.  Reverse-engineering the pinout of the 
greeting card's internal chip and extracting the music seems like a 
straightforward DMCA violation.  Since breaking the lock would violate 
the § 1201(b) rights-protecting portion of the DMCA, given the CC 2.5 
language, I think the lock itself qualifies as a TPM.

The 3.0 draft, however, abandons that parity, and instead refers 
generically to "technological measures that restrict the ability of a 
recipient of the Work from You to exercise the rights granted to them 
under the License."  So the question is whether a given feature is a 
"technological measure" that "restrict[s]" ones ability to "exercise a 
right" granted by the CC license.

This language requires a little more work to figure.  I think whether 
something qualifies as a "technological measure" is easy enough.  So is 
enumerating the list of rights granted under a CC license -- those track 
the various rights enumerated in the copyright statute and are 
explicitly listed in the license.  So the real question is what counts 
as "restrict[ing]" that ability.

It turns out that "restrict" is used in exactly one relevant way in the 
U.S. copyright statute.  The § 1201(b) definition of "technological 
protection measure" (but NOT, note, the corresponding § 1201(a) 
definition) says, "prevents, restricts, or otherwise limits the exercise 
of a right of a copyright owner."  What this says to me is that the 3.0 
definition now adheres only to § 1201(b) and not to § 1201(a).  The 
correspondence, though, seems close enough -- through the use of the 
work "restrict in the context of talking about TPMs -- that a court 
could reasonably find that the same line is being used in the license as 
appears in the DMCA.  If it qualifies as a TPM for § 1201(b) purposes, 
it can qualifies as a TPM for the anti-TPM clause (provided that the 
right of a copyright owner restricted by the TPM is one granted by the 
CC license in question).

My reading of the greating card scenario remains the same.  It could be 
a DMCA § 1201(b) violation, and thus it could trigger the anti-TPM 
clause.  One could read the license differently, but the way that the 
clause is written, it's quite possible that the greeting card would be a 
no-no.

Why not the photo on paper case?  Because the use of paper doesn't seem 
like it "restricts" the exercise of a right.  Given the format in which 
the work exists--on a piece of paper--the rights of, say, copying that 
piece of paper with a scanner, aren't restricted by the fact that it's 
on paper.  Obviously, this line breaks down somewhere, and the 
distinctions are entirely a matter of semantic quibbling, but it seems 
quite possible to me that the greeting card could fall on the wrong side 
of the line, particularly since it has a mode that actually causes one 
of the copyright holder's rights to be triggered--open it up in public 
and it's a public performance.

This is all a long way of explaining why I don't share Mike's confidence 
that the anti-TPM clause isn't implicated by the greeting cards and snow 
globes.

James