Skip to Content.
Sympa Menu

cc-licenses - Re: [cc-licenses] Dual Distribution Reconsidered

cc-licenses AT lists.ibiblio.org

Subject: Development of Creative Commons licenses

List archive

Chronological Thread  
  • From: Rob Myers <rob AT robmyers.org>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Dual Distribution Reconsidered
  • Date: Mon, 04 Dec 2006 20:40:07 +0000

James Grimmelmann wrote:
Rob Myers wrote:

* 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 is your understanding of whether a non-rightsholder has the authority to add DRM to a work?

* 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.

Yes that makes sense. Which is a shame as Fair Use is very important.

* 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.)

Ah, cool. I assume this right evaporates when a BY or BY-NC work is incorporated into a derivative work, as otherwise it's not very BSD-license-like.

So *can* I distribute with DRM under the current anti-TPM language? Copying is not use. :-/

On the one hand, to take FairPlay (iTunes) as an example, I can copy FairPlay files onto any media I like, so copying is not restricted (hmmm. unless that's a breach of the EULA :-) ). And I can play the files with what amount to NC-ND rights on any authorised FairPlay system (i.e. iTunes on another Mac). So my ability to copy isn't restricted, and my ability to exercise the rights granted by NC-ND is not restricted by the DRM once I can use the work on a FairPlay system.

On the other hand, *any* DRM prevents me from using the work where I might ordinarily use it but where I do not have access to the correct DRM system, or if the DRM vendor revoke my rights, goes bust, or otherwise is problematic. If I have an AAC/MP4 file I can normally play it on iPodLinux. If it has FairPlay on it I cannot. But if *any* DRM prevents you exercising your rights, why allow DRM at all?

So on balance I do believe that the current CC licenses allow distribution with DRM. IANAL though, TINLA, etc.

- Rob.




Archive powered by MHonArc 2.6.24.

Top of Page