Development of Creative Commons licenses

[David Chart <bydosa AT davidchart.com>]

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/