Development of Creative Commons licenses

[James Grimmelmann <james AT grimmelmann.net>]

Rob Myers wrote:
> As I said, I think we've been looking at this all wrong:
>
> * Can DRM be applied to CC work?
>
> According to Mia Garlick, to one third party who has spoken to CC 
> (referred to via MJ Ray's weblog), and by a close reading of the 
> license, yes. As long as that DRM does not remove any rights the license 
> gives the user.
>
> * Can CC work be distributed with DRM added?
>
> Again yes, with the same proviso.
>
> * Who has the right to add DRM to CC work?
>
> According to Mia’s responses to the draft comments, possibly only the 
> copyright holder(s?). This would mean that only the original author and 
> possibly authors of derivative works could add DRM. End users would not 
> be able to.
>
> * What about Fair Use?
>
> The CC licenses state that nothing in them is intended to reduce Fair 
> Use. But adding DRM has the potential to reduce Fair Use in unintended 
> ways. Any addition of DRM therefore has at least the potential to reduce 
> Fair Use. This might mean that no DRM can be added, as any DRM removes 
> the Fair Use rights guaranteed (although not granted) by the license.

I would tentatively disagree with this reading.  The revised anti-DRM 
clause refers to rights "granted . . . under the License."  The licenses 
only "grant" rights in section 3.  Fair use is mentioned in section 2, 
but is not "granted."  Restrictions on fair use rights that don't also 
restrict one of the explicit rights granted in section 3, therefore, 
don't violate the anti-DRM clause.  DRM is prohibited if and only if it 
interferes with one of the "granted" section 3 rights.

> * What about noncommercial copying?
>
> All the licenses allow at the very least noncommercial copying of 
> unmodified work. DRM can be used to prevent this. But is this a right 
> guaranteed by the license or merely a permission offered by it?

Copying is a right granted by the license.  It's in section 3.a (in the 
BY-NC versions).  So any use of DRM to restrict the recipient's ability 
to copy noncommercially violates the anti-DRM clause.   (BTW, the 
restriction to noncommercial copying, in the NC licenses, is a section 4 
restriction, and not part of the section 3 grants.  Section 4.b, in BY-NC.)

James