Development of Creative Commons licenses

[Terry Hancock <hancock AT anansispaceworks.com>]

Benj. Mako Hill wrote:
> While you, Greg, Rob, and drew have sent more than half of the messages
> to this list on subject of the 3.0 drafts (my quick count), the *number*
> of people who have spoken up on either side of the issue is much closer
> to matched.

Voting is not the same as consensus. Other people posted, but I do not
feel they were persuasive. Hence the fact that we were not persuaded.

> Perhaps more importantly, everyone in this discussion (myself included)
> seems to be indifferent, at best, to the most popular CC licenses.  Do
> you feel that any consensus we might come to is representative of CC
> users given that a majority of licenses choose non-SA and NC works and a
> good chunk choose ND?

Well, no. However, this doesn't mean what you think it means.

The other CC licenses (NC, ND, etc) are more producer-centric, and give
less consideration to the abstract concept of "user freedoms". For them,
 the exploitation threat that Greg points out would be the greatest
concern. They are most likely even more hostile to TPM+PD than we are.

OTOH, of course, it can be pointed out that the NC terms disallow DRM
Dave's behavior (his exploitation is undeniably commercial use),
possibly obviating the problems with TPM+PD for those users.

The upshot of *that* is that artists will quickly see that By and By-SA
do not provide sufficient protection to the artist from exploitation,
causing the NC licenses to dominate even further. Hence, with TPM+PD,
we'd lose mindshare for "free" licenses amongst artists! (Just when
we're starting to slowly gain it).

Allowing TPM exploitation on "free" works would be a disaster in terms
of community support for free licenses. Artists are very jittery about
what they see as exploitation, and not many of them approve of TPM/DRM
clauses.

I think that's probably a good part of the reason why the people who've
spoken up about this are the proponents of "free" By and By-SA licenses.


>>Rather than refuting the argument against TPM+PD, they've essentially
>>tried to dismiss it as unimportant.
> 
> Opponents have argued that the harm of parallel distribution would
> outweigh the benefits. Proponents have argued the opposite. If an
> potential for attack is unimportant, we shouldn't have to prevent it at
> the expense of other freedoms. Our disagreement is rooted in that
> conditional.

Well, okay, that much is true. Here's a brief summary from my PoV:

Benefits of allowing TPM+PD:

        Allows non-free use of free works on hypothetical non-free platforms


Harms of allowing TPM+PD:

        Creates false impression of freedom on non-free platforms

        Robs user freedoms on non-free platforms, poisoning consumer/creator
collaborative process

        Permits exploitative monopoly-based use, robbing producers of both
direct income and the quid-pro-quo of copyleft

        Allows monopolists to co-opt free content to promote their monopoly
control of content creation process

        Encourages the use of "non-commercial" NC module at expense of free
licenses (only remaining defense against exploitation)

        Complicates a simple license clause

        Creates an impression of CC support for TPM/DRM technology and law


So, I hope you'll pardon me for feeling that this is a somewhat clearcut
case! :-)

>>This is why I characterize the pro-TPM+PD argument as "anti-copyleft".
> 
> Do you think your copyleft-centric refutation is meaningful in the
> context of the majority of CC works which are not copyleft?

Copyleft refers loosely to a specific category of quid-pro-quo terms,
"sharealike", or "social contract" which ensure that there is some
parity amongst contributors and distributors of a work. Even
non-copyleft licenses imply some degree of commons reuse which TPM
interferes with.

While the strongest case applies to CC ShareAlike licenses, it can and
has been argued that DRM, having the capacity to violate the more basic
social contract of the copyright system itself, embodied in "fair use",
makes it meaningful to *all* CC licenses. I didn't make that argument,
though. I'm just paraphrasing Mia Garlick's response to the question
(Her original is in one of those "responses to the list" PDFs she
published on list, IIRC).

Cheers,
Terry

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