Development of Creative Commons licenses

[Anthony <osm AT inbox.org>]

On Fri, Aug 10, 2012 at 2:02 AM, Gregory Maxwell <gmaxwell AT gmail.com> wrote:
> It's worth pointing out that the license is constructed so that these
> requirements only apply to sharing works, so none of the past worrying
> of "can I use the works on my iChains??" applies.

Yes, this is worth pointing out.  Through a quick look the restriction
appears to be "You may not restrict the ability of a recipient of the
Work from You to exercise the rights granted to that recipient by the
terms of this Public License, including through the imposition of any
effective technological measures."

Still, I think the question of "can I distribute the work using
https??" applies.  CC doesn't define "effective technological
measure", and though presumably they're referencing US law, US law
doesn't actually define "effective technological measure" either.
Surely encryption is a "technological measure".  Whether or not it's
"effective", I'm not going to speculate on.

> If the authors of a work wish to permit people to make derivatives and
> distribute them locked down, they can of course do that.

In the case of a derivative work, all the authors must agree, however.

> Without clear evidence
> of authors widely using these workarounds, or the prohibition on DRM
> lockdown causing actual
> problems, such a change seems inadvisable to me.

Well, maybe the real problem is the termination clause, then.  With
the termination clause, you can't wait until there are actual problems
to worry about whether or not you're in compliance.  You can pour
years of work into a successful derivative work and then suddenly find
out you've lost all control over it, including the ability to make
copies for yourself, because one of the many authors of the previous
work found a judge willing to agree that you violated the license when
you distributed it over https.

I'm not willing to wait for clear evidence of actual problems before
trusting that this isn't going to happen.

>> The phrase "without the authority of the copyright owner" is right
>> there in the statute.
>
> Outside of the fevered imaginations of lawyers, legislators, and
> economists, the actual substance of the law is often fairly irrelevant
> to how people behave.

This is simply incorrect.

Yes, individuals and small businesses tend to break the law regularly
without knowing or caring about it.  But medium and large businesses
often rely on the advice of those imaginative lawyers, because the
stakes of not listening are high.

In any case, what I'm referring to is: "Licensees do not often apply
TPMs directly to CC-licensed content directly, but instead upload
content to third party platforms that use DRM. In those cases, it is
the platform providers who must give permission to circumvent. In some
cases, this is a matter of law. For example, under U.S. law the person
harmed by the circumvention of TPM has a right to bring a lawsuit
under anti-circumvention laws. "
(http://wiki.creativecommons.org/4.0/Technical_protection_measures)

As far as I can tell, it is blatantly false that, under US law, "it is
the platform providers who must give permission to circumvent".  I'd
like for CC to address the fact that circumvention is defined in US
law as an act which is done "without the authority of the copyright
owner".

> DRM is a long-term existential threat to liberally licensed works:  the
> friction we remove through persistently permissive licenses can
> be trivially restored by software that denies access to those freedoms.

I'm not sure which part of this to disagree with first:  That DRM is a
threat to liberally licensed works, or that it works at all.

I'll take on the latter, and say that I *wish* DRM actually worked.
Anonymous e-cash, honest decentralized distributed gaming, completely
private collocation and cloud computing, etc.  The list of wonderful
things we could do with DRM which actually worked goes well beyond the
ability to easily, costlessly, and unintrusively enforce copyright
law.  That said, the tremendous positive impact it would have on the
state of copyrightable works would be one of them.  I say would be,
because I highly doubt the analog hole will be plugged in my lifetime,
if ever.

> Often, especially in terms of the behavior of the general public,
> Code forms more powerful de facto law than the actual law, and can
> easily implement restrictions far more aggressive than even the most
> over-reaching law any free nation would ever consider.

To a large extent, locks keep honest people honest.  A lot of people
will think twice about the morality of what they're doing before
running some sort of cracking software.  A growing number will then go
on to rationalize their behavior, many of them using the
rationalizations that we can read right on this mailing list.  But for
a large portion of the population, locks keep honest people honest.

That said, the only reason DRM accomplishes much of anything at all is
because of the laws behind it.  Locks keep honest people honest, but
not so much if you can go into your local Best Buy and buy a
lock-picking kit, without anyone so much as even giving you
inquisitive looks.

> The fact that technically sophisticated users can currently
> (and perhaps forever) get around these restrictions is no more an
> argument that they aren't a practical impediment to freedom than
> the relative non-enforcement and utter ease of copyright infringement
> is an argument that we don't need permissive licenses.

I don't see the analogy.  A permissive license gives you permission to
do something.  The anti-DRM clause is a restriction on doing
something.

The locks on a library door are as much "a practical impediment to
freedom" as DRM.  But we don't have a clause in CC licenses saying
libraries can't lock their doors.

(Actually, DRM to a growing extent is enabling us to bypass those
locked library doors, by downloading time-restricted copies of
proprietary books.)