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Subject: Development of Creative Commons licenses

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  • From: Rob Myers <rob AT>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT>
  • Subject: Re: [cc-licenses] ParaDist Questions
  • Date: Wed, 29 Nov 2006 22:34:00 +0000

Benj. Mako Hill wrote:

I can choose to include a ROM over a programming RAM *becuase* I want
to keep people from reprogramming my hardware.

If a card manufacturer doesn't want people reprogramming the greeting cards that they buy from them, that is fine as far as free culture goes (they are preventing no use of the cultural work and their customers are free to extract and re-distribute it) and I believe having read one of the comments the FSF made on the GPL that it is fine as far as free software goes as well.

The card manufacturer should not stop their customers moving their media off the greeting card, or try to force people to buy the exact same cards in order to play that music. This would prevent distribution of unmodified versions of the work with full Freedom, and hamper derivation.

Another artist I know once made an installation of musical cards that were opened and controlled by servo mechanisms. I hadn't thought of this as a wall of illegal public performance and derivation until now. :-)

That technological
choice can have both the intent and the effect making it prohibitively
difficult for the vast majority users to create a derivation in the
same form.

Certainly, and I am glad that we are now discussing derivation. But the difficulty is only technological, not legal. If you copy the ROM you have infringed only the copyright on the data, which may be defensible under Fair Use (or a CC license). You have not infringed the ROM Act of 2007 and incurred its wrath.

If so, why is DRM different?
Because DRM is law not technology.

I think at least one of us is confused. While the DMCA and similar
laws regular DRM and create penalties for trying to circumvent them,
DRM is technology. TPMs are created by programmers, not lawyers. One
of the major criticisms of DRM/TPM is that they are frequently out of
step with the law (e.g., when compared with fair use).

If the DMCA and similar laws did not prohibit breaking or reverse engineering TPMs they would not be such a problem. Any security system where you give the attacker the keys isn't going to be particularly strong. But the same system becomes a bit more harmful when you will be arrested as soon as you set foot on US soil if you reverse engineer it.

It is trivially true that the code hooks for TPM law are written by programmers. This seems to give programmers a blind spot for DRM. I have no objection to programmers creating DRM software. I do object to receiving cultural work restricted by TPM law.

- Rob.

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