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  • From: Mia Garlick <mia AT>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT>
  • Subject: Re: [cc-licenses] ParaDist Questions
  • Date: Wed, 29 Nov 2006 11:54:07 -0800

actually, if i can elaborate on one point raised here. when i inherited responsibility for the licenses, i consulted with those who drafted them as to the scope of the so-called anti-TPM clause. they explained that its scope was to prohibit the use of technological measures that "control access or use of the Work *in a manner inconsistent with the terms of this License Agreement*" (emphasis added). thus, the 2.5 and earlier licenses are not intended to proscribed access controls because access is not a right or privilege granted under the license agreement although they would prohibit an access control that also acted as a copy control measure. consequently, as part of making version 3.0 clearer in part as a result of discussions with Debian it seemed prudent to drop this terminology to avoid any such confusion....

On Nov 29, 2006, at 11:41 AM, James Grimmelmann wrote:

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

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


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