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  • From: James Grimmelmann <james AT>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT>
  • Subject: Re: [cc-licenses] ParaDist Questions
  • Date: Wed, 29 Nov 2006 14:41:21 -0500

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

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.




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.


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