Development of Creative Commons licenses

[Mike Linksvayer <ml AT gondwanaland.com>]

A few weeks ago I skimmed all 912 emails concerning DRM/TPM sent to
cc-licenses or cc-community for the history of those lists, and am
embarrassed to report that of the two proposals currently listed on
http://wiki.creativecommons.org/4.0/Technical_protection_measures
parallel distribution had been discussed far more thoroughly than I
had recalled, and while not discussed thoroughly, I had completely
forgotten previous discussion of circumvention, even though I'm the
one who brought it up. You can download only the DRM emails at
http://gondwanaland.com/tmp/cclists-drm.mbox.gz -- I merely
downloaded, concatenated, and filtered monthly archives that are
publicly available.

Many of the 43 responses to early list comments on 3.0 drafts from Mia
Garlick (CC lawyer at the time) concern TPM, see
https://lists.ibiblio.org/sympa/arc/cc-licenses/2006-September/004029.html

I think the current circumvention permission proposal (basically the
relevant half of the GPLv3 language) is still worth exploring further
-- is the distributor ever the rightsholder for whatever DRM scheme is
being used, thus able to grant permission to circumvent? If so, why
shouldn't that permission be granted? This is of course mostly
orthogonal to parallel distribution.

Lots of the parallel distribution discussion centered on a
hypothetical case from Greg London in which "DRM Dave" controlled a
platform requiring DRM, such that even if "Dave" complied with a
parallel distribution clause, the clean copy would be useless to
people using his platform, this seen as a parallel distribution
loophole, allowing "Dave" to have a monopoly on a particular work for
his platform. I found this non-compelling then, and still do - I
mostly agreed with Nic Suzor at
https://lists.ibiblio.org/sympa/arc/cc-licenses/2006-October/004199.html
and https://lists.ibiblio.org/sympa/arc/cc-licenses/2006-December/004640.html

Terry Hancock, who eventually became convinced that "DRM Dave" was a
showstopper, after discussion at stopped and for the benefit of
someone who had missed out, posted a long list of emails that one
could read to get a gist of the discussions at
https://lists.ibiblio.org/sympa/arc/cc-licenses/2007-February/005056.html

Paul Keller's summary/argument that parallel distribution not worth
pursuing further at
https://lists.ibiblio.org/sympa/arc/cc-licenses/2006-October/004277.html
and others agreeing is mostly where it ends.

A bit later Mako Hill and James Grimmelmann posted an essay
http://wiki.mako.cc/ParallelDistribution (arguing for) which resulted
in further debate mostly represented on
http://wiki.mako.cc/Talk:Parallel_Distribution but which did not alter
the outcome.

What has changed since 2007? Probably not much that would change
anyone's opinion. The global DRM situation seems to be at best one
step forward (not so much present for sound, out of web standards so
far) and two steps back (ubiquitous and largely under the radar in
ebooks - eg see http://mako.cc/copyrighteous/20120306-00 - netflix,
blue ray, and mobile "apps"). This under the radar "success" of DRM
has anyone who thinks about CC licenses and DRM for a minute wonder
whether the current license condition isn't constantly violated -
which bears investigation, but again probably won't change anyone's
opinion ("see, the condition is worthless!", "so, someone enforce!").

I suspect that anyone who has or will bother to participate in
discussions about CC and DRM is a bitter opponent of DRM (I can say
this with certainty about most of the participants so far). My guess
is that the disagreement comes from not one or other set of people
hating or misunderstanding freedom or accepting DRM, but from
different estimations of the outcomes of different strategies.

Keeping or strengthening the DRM prohibition fights DRM by putting
DRM-using platforms at a disadvantage (probably not significant now,
but could become substantial if more CC-licensed works become
culturally central and significant enforcement efforts commence) and
by putting CC's reputation unambiguously against DRM, making the
license an expression of the world we aspire to live in, and giving
policy advocates a talking point against mandating DRM anywhere ("it
breaks this massive pool of content").

Weakening through parallel distribution or removing altogether the DRM
prohibition fights DRM indirectly, by removing a barrier (probably
small now, given widespread non-compliance) to CC-licensed works
becoming culturally central (ie popular) and thus putting DRM-using
platforms at a disadvantage - the defect being useless to gain access
to content, thus being merely a defect.

Personally, I find the second more compelling, but I admit it is
simply the sort of story that usually appeals to me. Also, I find it
congruent with the conventional wisdom a broad "we" tell to people who
just don't get it, supposedly: obscurity is a bigger threat than
piracy. But I don't expect anyone to change their minds as a result.
Especially since this is in concept more or less what Evan Prodromou
was saying in 2006 http://evan.prodromou.name/Free_content_and_DRM :-)

I do think that expression is important, and whatever gets baked into
4.0, CC could do more in a couple ways:

1. Communicate the DRM prohibition especially on license deeds (where
applicable, at least in <=3.0); suggested by Luis Villa in
https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-January/006663.html

2. Make anti-DRM advocacy a bigger part of CC's overall message; a bit
at http://creativecommons.org/tag/drm but IIRC something like Day
Against DRM has never been featured on the home page.

Mike

p.s. I suppose followups tangential to a 4.0 proposal, should go to
cc-community. Please reply to the appropriate list. ;-)