Development of Creative Commons licenses

[Terry Hancock <hancock AT anansispaceworks.com>]

Benj. Mako Hill wrote:
> In an ideal world, that might make sense. However, the small number of
> participants in this dicussion to date implies to me that this is either
> too complex or completely irrelevant or unimportant to most users.

Well, yes and no...

In my experience, only a small percentage of any given mailing list will
share significant opinions on any one issue. Generally, there are a few
others who feel their opinion has been adequately expressed by one of
the participants, so don't add much to the conversation. Others have not
formed any opinion of their own, and just assume that those who are
interested will find the right consensus.

The cc-licenses list furthermore appears not to be a very large list to
begin with. That in itself may be regrettable -- it suggests that most
Creative Commons license users are content to let these decisions be
made by others (perhaps they don't want to be bothered with "legalese").

That is probably a natural consequence of the CC's consignment of legal
detail to experts, implied by the whole concept of the "human readable"
"deeds" versus the "legal code", as well as its focus on artists, who
are likely to be dismissive of legal detail. I have some ambivalence
about this: I think it's fair enough to represent the CC licensing to
recipients of works in this way, but I think anybody actually applying
these licenses to their own works should take the time to read the
actual licenses.

In fact, the arguments for and against TPM+PD* are very complex, and it
takes some careful reading to understand the consequences of these
choices. A few of us have taken the time to work through these
consequences and form a consensus, which currently appears to be that
TPM+PD is an idea that sounds good on a first hearing, but is actually
fatally flawed, because it undercuts the basic social constructs that
*create* free-licensed works in the first place.

I think it's reasonable to assume that if anyone had a well-reasoned
objection to this consensus that they would've spoken up by now. We've
heard a few such cries from the Debian contingent, but (IMHO) they
haven't really backed up their position well enough. Rather than
refuting the argument against TPM+PD, they've essentially tried to
dismiss it as unimportant.

The most solid argument so far is that it represents a loss of end-user
freedoms, in exchange for preserving copyleft, and that this is perhaps
an unacceptable trade. However, this is equivalent to concluding that
the GPL is too restrictive because of copyleft: end users are restricted
from distributing the software linked or otherwise combined with
proprietary software. Surely that *is* a restriction on the end-user, so
MIT/BSD licenses are "more free" for the end user.

This is why I characterize the pro-TPM+PD argument as "anti-copyleft".
The most solid argument for it is the same one that supports
non-copyleft free licenses, such as MIT/BSD against the GPL.

The so-called "pragmatic" or "tactical" arguments for TPM+PD are, IMHO,
even less worthy, and I've essentially dismissed them entirely. The fact
is that the most locked-down systems I've so far heard about can still
be loaded with software to play non-TPM content, so the whole issue is
largely academic to begin with. The only strong arguments, therefore,
are the ones which argue that anti-TPM is wrong in principle (but you've
already conceded that this is not true).

I do note that the situation may be different for program software than
for digital arts. The *player* for non-TPM content may be something that
ought to be distributable in a TPM-encumbered form. But of course, no
one suggests that such a player should use a CC license. GPL (v2 or 3)
is a far better choice -- and those licenses do provide some form of
TPM+PD allowance.

Note that in essentially any situation in which software can be loaded
to the device, it is possible to create a program which applies TPM on
the device (if TPM-application by the end user is possible).

In the cases where the device is too simple to allow that, the TPM
application can be managed by software on a host computer. If the user
has no such host computer, then any freedoms granted by a parallel
distribution of an encumbered work are not available to him! So, even in
highly artificial circumstances, it is difficult to construct a
situation in which the user really needs TPM distribution rather than
TPM application. In all realistic cases, TPM application in the hands of
 the end user is the only mechanism that ensures the end-user retains
the rights the CC licenses were intended to provide him with (namely,
the ability to remix content and participate in "R/W culture" rather
than simply being spoonfed "R/O culture").

Privately, of course, I also addressed another tactical point, which
I'll repeat for the list here:

"""
But, since I view copyleft as essential to the health of the free
culture community, I view even a very small retreat as very harmful.
Furthermore, I don't think Greg's "DRM Dave" scenario is so small after
all. The motives and precedents for such an exploitation are very
evident. It seems quite clear to me that the DRM Dave scenario *will*
happen if TPM+PD is permitted in CC licenses.

Artists are already very, very antsy about commercial "exploitation" of
free works. This is why they continue to cling to the CC non-commercial
module, even though there are good reasons to reject that method.  But
the TPM+PD clause, in combination with By-SA allows an author's
un-modified work to be sold at monopoly-based prices without them seeing
one red cent from the sales, which really would be exploitative (the
outcome is signficantly worse than the conventional "all rights
reserved" copyright scheme, where the artist would at least get a cut of
the monopoly-priced work).

*That* would be a tactical disaster.  By-SA would die, and NC would be
even more firmly entrenched in the free culture community, as it would
then be the only defense against this kind of exploitation. Furthermore,
the CC organization would suffer a backlash for having 'betrayed its
constituency'.
"""

Cheers,
Terry


* I insist on this abbreviation, because I wish to emphasize that the
proposed change, is not to "allow parallel distribution" -- a
formulation intended to make it sound more harmless than it is -- but
rather to "allow technological protection measure impaired distribution
in combination with parallel distribution of unimpaired works" -- I have
seen several descriptions indicating that readers don't get this
distinction! Once again, the argument is actually to allow TPM'd
distribution, which is currently forbidden because it interferes with
the fundamental copyleft assurances of the CC licenses.

-- 
Terry Hancock (hancock AT AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com