Development of Creative Commons licenses

[Gregory Maxwell <gmaxwell AT gmail.com>]

On Fri, Aug 10, 2012 at 8:57 AM, Anthony <osm AT inbox.org> wrote:
> 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.

I'm not sure how we can have a productive conversation starting from
this kind of basic misunderstanding.

There is simply nothing in the text of the license which I can see
would allow someone to draw the conclusion that distributing content
in HTTPS would be problematic.  Please help me understand how you're
coming up with that— and perhaps we can hammer out some little tweak
that prevents that kind of misunderstanding that we can suggest.

Without getting that off the table any further discussion of the value
of the tradeoff is basically poisoned—because if the licensed
prohibited using HTTPS everyone would agree that it shouldn't but it
doesn't and as far as I can tell can't rationally be argued to do so.

Perhaps this is something that should get hammed out outside of cc-licenses?

> I'm not willing to wait for clear evidence of actual problems before

But we have an increasing mass of evidence from past experience that
there are no problems arising from the requirement. It's not proof,
but it's still evidence.  I do generally agree that one shouldn't
depend on non-enforcement to justify bad requirements, but I thought
it was helpful to make it clear that the only time these terms matter
is when at least someone is arguing that the DRMed distribution is
functionally harmful, just as contrast to the argument that its never
harmful.

>  I'll take on the latter, and say that I *wish* DRM actually worked.

There is an asymmetry here that often confuses these discussions. For
DRM to facilitate ecash, it would have to defend completely against
the sum of all attackers over all time who would get enormous benefits
from a successful attack.  For DRM to improve profits for a middleman
or for it to inhibit user freedom, it only has to be effective against
some people some of the time, who would realize much smaller benefits
from getting around it.  The latter is a far lower bar, and really is
effective in practice: it prevents my mother from copying ebooks
(including the kinds of copying which would be fair use!), and though
there are cracking tools she'd be foolish to use them because she's
not technically sophisticated enough to reliably find ones which are
not malware-laden.

The legal prohibitions against breaking DRM are really only important
in that they help keep the tools for it underground, user-unfriendly,
and/or not included by default with computers, thus dramatically
reducing their availability. But even absent anti-circumvention laws,
the friction still impacts freedom.

(Fortunately, ecash— even various anonymous kinds— is possible without
DRM, but that's far offtopic. :) )

>> 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.

And then you go on to actually say it's correct by admitting that
individuals are not primarily motivated by the substance of the law.
I'm not saying it's entirely irrelevant... only that things like the
software we use can be more relevant.  For content to be effectively
free, we must worry about both, and there is a reason to argue that
the technical restrictions are more important than the legal
consequences for most users and authors.

And yes— locks on library doors inhibit people.  When drafting a
copyleft license we have to consider a balance of freedoms.  The
traditional balance has been in the domain of "requiring people to do
additional activities isn't acceptable, requiring them to refrain from
imposing certain restrictions while doing whatever they do is
acceptable".   You could argue that adding a lock on your library door
is adding a restriction, but it's easy to see that the effect of
prohibiting that activity is to require additional activity (operating
24/7, repairing damage from vandalism and theft, etc).  This analogy
is weak and falls down.

In the license we also kill other kinds of friction where doing so has
a good imposition/enablement tradeoff. For example, distributors are
required to inform recipients of the licensing used and point them to
where they can obtain additional information. Source requirements also
follow along these lines, but CC-BY-SA is very often applied in cases
where source is hard and confusing, and/or less useful. I suggest
people use the GPL for works where the availability of source is both
clearcut and critical. Especially considering that people are often
confused (omg, there is no obvious source! so I can't use this
license!), that particular requirement is less clearly beneficial for
CC-BY-SA.

Perhaps someday a prohibition on distributing covered works under DRM
restrictions which conflict with the license might also be argued to
create additional activity-imposition, but that argument doesn't fly
today.  If that future comes true, then by definition it will be a
future where distributing unrestricted works is burdensome. And that's
a future we should defend against by adding friction to it before it
can come true.