Development of Creative Commons licenses

[James Grimmelmann <james AT grimmelmann.net>]

Greg London wrote:
> > > 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.
>
> Yeah, and Dave will need a business permit to manufacture
> and sell SnowGlobes. So what? 

Incorporation is available to all on the same terms.  There is no limit 
to the number of corporations.  The supply of broadcast licenses is 
limited and the FCC chooses who will get them.

It has nothing to do with the
> content being transmitted or whether the viewers get the
> same rights or not. You're talking about a legal restriction
> being applied to Dave before he can broadcast, not something
> that lets Alice copy the work, but prevents Bob.
>
> Red Herring.

The legal restriction is relevant at all times, not just for the initial 
broadcast.

Dave has an FCC license for channel 7 in a particular area.  He 
broadcasts a CC-SA work.  He states that if Alice creates a derivative 
work, he will allow Alice to broadcast it on channel 7 at a later date. 
 He does not make the same offer to Alice.  What do you see as the 
relevant difference between this case and the DRM case?

> > 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.
>
> Except the freedom to play it on Dave's DRM-only hardware.
>
> Because of that, parallel-distribution is not equivalent
> to "source-code" requirements.

> What good is source code if you are legally prohibited from
> ever compiling it on the computer you run it on?

It's good for a lot -- I can compile and run it on many other computers.

> Dave sells some specialized computer hardware.
> He uses some GNU-GPL code, compiles it for his platform,
> and makes the source code available.
>
> But then what if Dave goes to the Government and pays a few
> "representatives" to pass a law that says
> "No one may compile code for Dave's hardware without Dave's permission".
>
> That's the anti-circumvention clause kicking in.
>
> Even if you have source, even if you have parallel distribution,
> if you are legally disallowed from compiling the source so that
> you can play it on the hardware Dave built, Dave is leveraging
> FLOSS software in a way that puts him at an unfair advantage
> over the rest of the FLOSS community.

Two points here:

First, Dave has an unfair advantage because of the law.  But he has the 
same exact unfair advantage in relation to everything he might put on 
the hardware.

Second, Dave has a further advantage because he controls the hardware 
design.  He would have this advantage even if there were no 
anti-circumvention law.  The CC anti-DRM clause would apply even if Dave 
made a binding promise not to take advantage of the anti-circumvention law.

> > I think that this may be an essential point of our disagreement.
> > You are most concerned that everyone have identical freedoms in
> > a ShareAlike work.
>
> Yes. And why do you think that it is important?
>
> Hint: it isn't because I want to use cc licenses as a "weapon".
>
> Why would I think it is important?
>
> Hint: it isn't "just because" either.
>
> Get this question right and maybe this conversation will
> make some progress.

(skipping this question because it is rhetorical)

> > 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
> > the Alike license that he received the original under.
>
> But why is that a requirement of the license?
> Because we simply want to propagate the same license?
> Because we want to perform an experiment in memes and
> use CC licenses as the propagation thing?
>
> There is a WHY to the CC license that is not in the legal code
> but is in the name of the license and in the intent of CC.
>
> Why? To enable a FLOSS community. 

Creative Commons has taken the position that its licenses should not be 
used for software.  I doubt that the "why" of the CC-SA licenses is to 
enable a free *software* community.

> To provide a license that people
> who've never met each other can contribute their content to a
> bigger community and use those works in new and better ways.

This principle -- that contributions from many different individuals can 
be combined and reused -- does not require anything more than 
interoperability.

> Copyleft does nothing other than to keep the players in the
> FLOSS community on an even playing field as much as possible.

It does many other things.  It enables interoperability.  It prevents 
anyone from taking things out of the commons and preventing others from 
having access to them.  And, most importantly, it guarantees that 
everyone effectively enjoys certain freedoms.  None of these are the 
same as an "even playing field as much as possible."

(A NoDerivatives license puts the players on an even playing field. 
Alice and Bob are equally unable to create derivative works.)

> The GNU-GPL allows you to distribute a binary, but you must
> include source code so that you can compile the source code
> ON THE SAME PLATFORM.
>
> Do you think GNU would allow Dave to distribute a binary
> and release source code if there were some legal loophole
> that prevented anyone from compiling code on Dave's hardware?
>
> No. Why?
>
> Because it no longer keeps all the players in the FLOSS community
> on equal footing. Dave suddenly has a monopoly on his hardware
> platform that puts him at an advantage over everyone else.
>
> Alice can't compile code on Dave's machine because Dave
> got congress to pass a law that says Dave has the exclusive
> right to compile on Dave's magical mystery machine.
>
> That's DRM. That's TPM.

No.  DRM is technology, not law.

There are laws that make it illegal to circumvent certain kinds of 
DRM/TPMs.  But these laws are bad because they prop up unfair, 
restrictive technologies.  Those technologies would be harmful even 
without the laws.

 > Parallel distribution does not follow the metaphor of source code
> because there is no equivalent law for compiling like there
> is for applying or circumventing DRM.

I don't think your points about a level playing field depend on the law.
The law is not the problem.  If Dave makes an insidiously good DRM 
system that neither you nor anyone else has reverse engineered, Dave 
doesn't need the law.  You would be upset at Dave's actions even without 
the DMCA.  You would prefer the CC-SA license to forbid them even if the 
DMCA did not exist.

James