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cc-licenses - Re: [cc-licenses] 912 emails about DRM

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Subject: Development of Creative Commons licenses

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  • From: David Chart <bydosa AT davidchart.com>
  • To: Development of Creative Commons licenses <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] 912 emails about DRM
  • Date: Sat, 21 Apr 2012 09:30:05 +0900


On 2012/04/21, at 3:35, Rob Myers wrote:

> A five-ton sculpture can be photographed, sketched, or copied in
> miniature. All may be acts restricted by copyright.
>
>> However, the creator might still want to allow that if you can, and
>> definitely allow the creation of derivative works as long as you
>> sharealike.
>
> If DRM is added to the work they will not however be able to do so
> without risking legal action.

Are you absolutely sure about this? I can photograph, sketch, or copy in
miniature scenes from a Blu-ray move without circumventing the DRM. Putting
the disk in a legal Blu-ray player and displaying the result on a screen is
obviously not circumvention; that's the intended use of the DRM. The BY-SA
licence then clearly gives me the right to make derivatives of the images
that I can now see.

As far as I can see, there are two risk cases here, which I'll call User and
Adaptor.

User gets a copy of work A, which is licensed under CC-CY-SA, and which has
DRM. User would like to copy it, but may not, because of the DRM.

Permission to circumvent gets round this problem in jurisdictions where the
rights holder in the work may grant permission to circumvent the DRM, or when
the rights holder also has the right to grant permission to circumvent a
particular DRM.

Parallel distribution makes the situation no different from parallel
distribution of a work, B, under CC and ARR, which you have said you are
happy with. If I have the DRM version of work A, I have, at worst, the rights
I would have with the ARR version of work B (none). In both cases, I can look
for the CC version, but until I find it, I don't have the legal right to make
the copies.

However, the combination of these two clauses makes legal action effectively
impossible.

To bring a successful case, you have to show that User both circumvented DRM,
and did not have permission to do so. For a successful criminal case, at
least under UK law, you also have to show that User did not reasonably think
that she had permission to do so, because you need to establish mens rea.
Ignorance of the law is no defence, but if the act that you reasonably think
you are doing is legal -- *not* the same as thinking that what you are doing
is legal -- then you are not committing an offence. Possession of a licence,
that came with the copy, saying that you may circumvent DRM might well be
held to create a reasonable belief that you have permission to do so, even
when the licensor could not grant that permission. Circumventing with
permission is legal.

So, there's a difficult bit of law there.

Then you have to show that User circumvented DRM. As work A is being
distributed in parallel without DRM, this is very difficult to prove. Given
that the work is licensed under CC-BY-SA, I can't really imagine a court
granting permission for the sort of invasive investigation of User's computer
that would be necessary. There's no prima facie reason to assume that an
offence has been committed; the work is available under the CC-BY-SA licence,
and is being distributed without DRM.

Finally, if you try to bring this case, then the EFF, CC, and FSF jump on
you, banging on about the two points above, and getting the original author
to say that of course User is allowed to do what User is doing.

With both permission and parallel distribution in place, User should be able
to find an unencumbered version easily, and is at no real risk of legal
action even if she can't find one.

The second case is easier. The worry is that Adaptor can use DRM to lock an
Adaptation down without violating the licence. Parallel distribution makes
that impossible. It might not be possible to use the open version on the DRM
platform, but this is no loss over your proposal.

Given that it is unclear that the licensor can grant permission to
circumvent, I don't think that is sufficient by itself. In combination with
parallel distribution, however, I think it is.

--
David Chart
http://www.davidchart.com/





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