Development of Creative Commons licenses

[Francesco Poli <invernomuto AT paranoici.org>]

Hi again,
another feature that is really needed for CC-v4.0 licenses is an
explicit clarified permission that allows the so-called "parallel
distribution" of TPM-encumbered forms along with unencumbered forms.

As you know, CC-by-v3.0 and CC-by-sa-v3.0 (and the other CC-v3.0
licenses, as well) include the following text:

[...]
|     When You Distribute or Publicly Perform the Work, You
|     may not impose any effective technological measures on the Work
|     that restrict the ability of a recipient of the Work from You to
|     exercise the rights granted to that recipient under the terms of
|     the License.
[...]

This is the infamous anti-DRM (or anti-TPM, if you prefer) clause,
probably the most controversial part of CC-v3.0 licenses.  It has been
discussed to death on both debian-legal and cc-licenses mailing lists.

The big question is: does the clause allow a licensee to distribute a
TPM-encumbered form of the work, as long as he/she also make a clean
(unencumbered) form available in parallel? If this parallel
distribution scenario is indeed allowed, then I've seen no one
objecting to the freeness of the anti-TPM clause: everyone says that
the clause meets the Debian Free Software Guidelines (DFSG). If instead
the clause forbids parallel distribution, many people (including me)
think it fails to meet the DFSG.

Which is the answer to the big question?
The clause does not *explicitly* allow parallel distribution.
Nonetheless, some people have hypothesized that the anti-TPM clause, as
it stands, can be interpreted as *implicitly* allowing parallel
distribution.

Not knowing whether parallel distribution is or is not actually allowed
creates a highly problematic legal uncertainty.
This uncertainty should be eliminated through a clarified language in
CC-v4.0 licenses.
The anti-TPM clause should be enhanced, so that it *explicitly* allows
parallel distribution.

This way the legal uncertainty would go away, and the clause would
become clearly free according to the DFSG.

I hope this suggestion may be implemented in the next drafts of
CC-v4.0 licenses.

All the best,

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..................................................... Francesco Poli .
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