Development of Creative Commons licenses

[James Grimmelmann <james AT grimmelmann.net>]

Greg London wrote:
> > Greg London wrote:
> > > Without any DRM clause of any kind, ShareAlike has a loophole
> > > that allows DRM Dave to use the work without sharing the work
> > > on his platform. Only he can distribute works on his platform.
> > > Only he can create derivatives on his platform.
> > This is true.  But the same is true if DRM Dave makes snow globes that
> > play a CC-licensed song.  Nobody else can put derivatives (or anything
> > at all) on this sort of snow globe--simply because Dave is the one with
> > the manufacturing plant. Why is this not a platform monopoly of this
> > troubling sort?
>
> See my last email about broadcasting CC-SA works to televisions.
> Just because the television can't record, copy, distribute, edit,
> doesn't mean you want to prohibit that use.
>
> The question is whether the platform allows everyone the same
> rights regardless of who they are, or whether the platform
> allows SOME people to exercise a right, but not ALL.
>
> What if Dave sells the work on a Compact Disc and distributes
> it to everyone? The disc does not come with the ability to
> automatically replicate itself or its content. But no one
> would consider that an issue for CC-SA content.
>
> The question is whether the distribution comes with a
> gate keeper that SELECTIVELY allows SOME to exercise a
> right but NOT others.

Television comes with the gatekeeper of an FCC license (in the U.S.). 
If you do not have one, you cannot legally broadcast.


> What if Dave sold the CC-SA work in a magazine article?
> Paper doesn't have the ability to replicate itself.
> You'd have to get a hi-res scanner and pull it in and
> clean it up with software and do some work before you
> could get a .jpg version of that file, but no one would
> consider that a violation of the license to distribute
> CC-SA content in a magazine.
>
> The thing is that with the snow globe, and the greeting card,
> and the compact disc, and the magazine, Alice and Bob
> do not get the SOURCE CODE. But Creative Commons long
> ago decided that the source version of the content was
> not a requirement, due to the complexity of trying to
> write the legaleze for that requirement in every medium
> that might ever exist.
>
> So, CC decided source code is not a requirement.

I think this is not an accurate characterization of why CC does not 
require source code.  It is simply not a relevant (or even meaningful) 
attribute for many of the non-software types of works to which CC 
licenses apply.  For software, source code is critically important to 
modification.  That is, with software, you need source code in order to 
make full use of the relevant freedoms; with many other sorts of works, 
you do not need the source code to enjoy those freedoms.

> But, what the ANTI-TPM clause says is that however you
> distribute it, you cannot bundle it with some sort
> of gate keeper that selectively picks and chooses
> who can exercise certain rights.

In your framework, the parallel copy is the source code.  Yes, you 
distribute a DRM-encumbered "object code" version, but you also make the 
"source code" version available -- a version that provides the necessary 
practical support for all of the relevant freedoms.

> That doesn't mean that all rights must be allowed in
> whatever medium you distribute the content in.
>
> It means that whatever rights are made available
> by that medium to one person must be made available
> to all.

I disagree that "by that medium" is a useful restriction.  The goal 
should be that "whatever rights that are made available to one person 
must be made available to all."  Parallel distribution accomplishes that 
goal.

> > The works are copyleft to the extent anyone is free to take them, copy
> > them, modify them, and distribute them by starting from the parallel
> > version.
>
> Exactly. And on that platform, the work is distributed unfairly.
> Alice can do something that Bob is disallowed from doing because of TPM.
>
> > The only thing they are not able to do in practice is to place
> >   their own copies or derivative works back onto the particular DRMed
> > platform.  Or is there something else you think they are not free to do?
>
> The "only" thing is what makes it unfair.
> Alice and Bob and Dave are no longer SHARING ALIKE.
> Share and share alike.
> That is the point. If the platform allows Alice
> to do something, it must allow Bob to do it as well.

I think that this may be an essential point of our disagreement.  (drew, 
I think that you and I disagree on other points than this one.)  You are 
most concerned that everyone have identical freedoms in a ShareAlike 
work.  I am most concerned that everyone have a baseline level of 
essential freedoms.

> > I do not think that your "ShareAlike on that hardware platform" is a
> > meaningful concept.  You seem to be taking the word "alike" too
> > literally, to assume that everyone who encounters a work must have the
> > exact same abilities in practice.
>
> The term as I understand it comes from the common sense phrase:
>
> Share and Share Alike.
>
> I could be wrong. Someone from CC can correct me if so.
> It's a very simple concept, really. If Alice can exercise
> a right on some platform, Bob must be allowed to do so as well.
> If the platform does not support a right for anyone, then
> it is still share and share alike.

ShareAlike does not refer to the particular rights and abilities Alice 
and Bob have.  It means that if Wally distributes a derivative work, he 
must Share it under a the Alike license that he received the original 
under.

James