4.0/Technical protection measures - Revision history

CCID-diane peters: /* Treatment in drafts */

2013-09-11T20:07:28Z

‎Treatment in drafts

CCID-shinchpearson at 17:50, 10 September 2013

2013-09-10T17:50:47Z

Kat Walsh: headers

2013-05-20T19:26:41Z

headers

Kat Walsh: collapse drafts 1 and 2; provide subheads

2013-05-20T16:41:22Z

collapse drafts 1 and 2; provide subheads

Kat Walsh: /* Proposals for 4.0 */ +d3 treatment

2013-02-14T18:45:12Z

‎Proposals for 4.0: +d3 treatment

Kat Walsh: +draft 3

2013-02-14T03:25:51Z

+draft 3

Aurelia Schultz: /* Proposals for 4.0 */

2012-10-09T18:26:32Z

‎Proposals for 4.0

CCID-diane peters: /* Relevant references */

2012-09-20T18:52:02Z

‎Relevant references

CCID-diane peters: /* Relevant references */

2012-09-20T18:50:12Z

‎Relevant references

CCID-diane peters: /* Relevant references */

2012-09-20T18:44:37Z

‎Relevant references

@@ Line 58: / Line 58: @@
 {{Infobox |
 ===Draft 4===
-We have introduced a definition of “Effective Technological Measures.”  The purpose for doing so is to help eliminate misunderstandings about what is intended to be an ETM for purposes of the licenses.  A uniform definition tied to laws resulting from the WIPO Copyright Treaty is designed to make the ETM restriction on licensees easier to understand and should result in heightened compliance with the term. We have also expanded the circumvention provision so that the licensor waives or agrees not to assert any authority she might have to forbid licensees from breaking ETMs, not just those applied by the licensor herself.
+We have introduced a definition of “Effective Technological Measures” that is tied to the WIPO Copyright Treaty and is fairly narrow -- it is intended to limit application of technologies by licensees that have the ''effect'' of imposing legal restrictions on reuse, just as our licenses prohibit additional terms that do so.   The purpose for including the definition so is to help eliminate misunderstandings about what is intended to be an ETM for purposes of the licenses.  A uniform definition tied to laws resulting from the WIPO Copyright Treaty is designed to make the ETM restriction on licensees easier to understand and should result in heightened compliance with the term.  The definition is ''not intended'' to change the meaning or scope of that phrase from the 3.0 licenses, but instead provide a uniform reference within the license.  Please note that during the draft 4 consultation period, we are not revisiting the policy decision previously made to retain the no-ETM prohibition, only clarifying the scope of that prohibition.
 }}

@@ Line 38: / Line 38: @@
 |}
-{{Infobox |
+{| class="mw-collapsible mw-collapsed wikitable"
 ===Draft 3===
@@ Line 48: / Line 53: @@
 Because of this, we wish to be clear that the license can only grant the permission to break TPMs applied directly by Licensor; many licensees may still be restricted by third-party rights.
-====Draft 3 update====
+|}
 }}
@@ Line 102: / Line 112: @@
 * ''''Treatment in 4.0 d.2:''' Same.
 * ''''Treatment in 4.0 d.3:''' See main section on Draft 3 Treatment above. This was investigated but CC cannot give a blanket permission to circumvent due to third parties with standing to enforce criminal anti-circumvention laws. (GPL works slightly differently, as in the CC license the work itself is generally notpart of the TPMS system.) Instead, we have gone as far as we believe we can, having the Licensor agree to waive or not assert thelicensor's own TPMs.
@@ Line 124: / Line 135: @@
 * ''''Treatment in 4.0 d.2:''' Same.
 * ''''Treatment in 4.0 d.3:''' Not pursued, though ways to standardize a waiver of the DRM prohibition as well as other ways to facilitate additional permissions are being investigated in this discussion period.
 '''''TPM Proposal No. 3:'''''  '''Communicate the DRM prohibition especially on license deeds.''
@@ Line 132: / Line 145: @@
 * '''Treatment in 4.0 d.2''': Same.
 * '''Treatment in 4.0 d.3''': Same.
 '''''TPM Proposal No. 4:'''''  '''Make anti-DRM advocacy a bigger part of CC's overall message''
@@ Line 139: / Line 154: @@
 * '''Treatment in 4.0 d.2:''' Same.
 * '''Treatment in 4.0 d.3:''' Same.
 ''Please add other TPM proposals here, and number them sequentially.''

@@ Line 1: / Line 1: @@
 {{4.0 Issue}}
-==Treatment in Drafts==
+==Treatment in drafts==
 {| class="mw-collapsible mw-collapsed wikitable"
-! (expand to read)
+! (expand to read Draft 1 treatment)
 |-
+|
-{{Infobox |'''Draft 1 Treatment:''' This issue has not been addressed in this initial draft. We would like further input from the community before we can make a decision on this important component of the licenses. In particular, we would like to hear about more use cases and the pros/cons of adjusting or removing the provision.  Note the TPM provision is bracketed in the two places it appears in the published draft, mirroring the language from v3.0, for ease of reference. We look forward to hearing concrete proposals and use cases for changing (or retaining) the current treatment. }}
 |}
 {| class="mw-collapsible mw-collapsed wikitable"
-! (expand to read)
+! (expand to read Draft 2 treatment)
 |-
+|
 {| class="wikitable" cellspacing="0" cellpadding="5" width=100%
 |valign="TOP" style="background:#FFDADA;border:5px #FDAFAF;padding:1em;"|
-'''Draft 2 Treatment:''' The restriction on the use of effective technological measures by licensees remains unchanged in draft 2, although the language has been edited for simplicity and combined with related provisions about imposing restrictions on the work. The explanation below provides more detail about our thinking.
+===Draft 2===
 Two primary arguments have been advanced in favor of revising the TPM clause.
@@ Line 36: / Line 38: @@
 |}
 ===Draft 3===
 In Draft 3, the license has been changed to state that the Licensor agrees to waive or not assert any right or authority to forbid technical modifications, including TPMs applied by the Licensor. This goes as far as as we believe we can go in ensuring that the licensee has the rights that the CC license is intended to grant.
@@ Line 45: / Line 47: @@
 It is always possible for a licensor to upload his or her own work to a platform which applies TPMs, even though the licensor applies a CC license to the work. The permission for the third-party platform to apply these TPMs is separate from the CC license, and the CC license cannot affect it so long as CC licenses are nonexclusive. In many jurisdictions, that third party may enforce TPMs through criminal anti-circumvention laws even though the Licensor waives or agrees not to assert any such right.
-Because of this, we wish to be clear that the license can only grant the permission to break TPMs applied directly by Licensor; many licensees may still be restricted by third-party rights. }}
+Because of this, we wish to be clear that the license can only grant the permission to break TPMs applied directly by Licensor; many licensees may still be restricted by third-party rights.
-= Overview =
+====Draft 3 update====
 Since Version 1.0, the CC licenses have contained language prohibiting imposition of TPMs on CC-licensed works. The current language in [https://creativecommons.org/licenses/by-sa/3.0/legalcode CC BY-SA 3.0 4(a)] is the following:
@@ Line 67: / Line 73: @@
 * All Japanese terrestrial broadcasting is protected by a TPM. As a result, CC Japan receives inquiries about use of CC-licensed materials in Japanese TV at least monthly, if not more frequently. CC Japan's answers to this question include the point that "you cannot use the image without creating adaptation, (or find a way not to impose TPM for the segment)." When the image is CC-BY-ND, it is impossible to comply with the current language and broadcast CC materials over terrestrial TV in Japan. Friends of CC have heard from an industry source that not imposing a TPM on a particular Japanese terrestrial broadcast is technically possible, but practically impossible. This conflict between the anti-TPM clause and digital TV was raised in 2008 Summit's Legal Day. At the time, the problem was expected but somewhat theoretical. Now that all terrestrial TV broadcasting became digital-only for most of Japan, it is real. Some at the time pointed out that TPM would not be sustainable so we could simply wait and the TPM would disappear. That prediction is not right so far.
-= Proposals for 4.0 =
+== Proposals for 4.0 ==
 ''For ease of reference on discussion lists, please do not alter proposal numbers.''
@@ Line 136: / Line 142: @@
 ''Please add other TPM proposals here, and number them sequentially.''
-= Related debate =
+== Related debate ==
 ''We encourage you to sign up for the license discussion mailing list, where we will be debating this and other 4.0 proposals. HQ will provide links to related email threads from the license discussion mailing list here.''
 *DRM proposals for 4.0 are also discussed [[4.0/Games_3d_printing_and_functional_content#DRM_in_BY-SA_but_not_BY| here]].
@@ Line 144: / Line 150: @@
 *[http://lists.ibiblio.org/pipermail/cc-licenses/2012-January/subject.html#6588 summary of DRM issue on cc-licenses]
-= Relevant references =
+== Relevant references ==
 Whether a copyright holder can grant permission to circumvent technical protection measures differs by jurisdiction.  Whether a person or entity other than the copyright holder has standing to sue or bring criminal charges against someone who circumvents technical protection measures, even when circumvention is done with permission of the copyright holder, also differs by jurisdiction.

@@ Line 1: / Line 1: @@
 {{4.0 Issue}}
+==Treatment in Drafts==
 {{Infobox |'''Draft 1 Treatment:''' This issue has not been addressed in this initial draft. We would like further input from the community before we can make a decision on this important component of the licenses. In particular, we would like to hear about more use cases and the pros/cons of adjusting or removing the provision.  Note the TPM provision is bracketed in the two places it appears in the published draft, mirroring the language from v3.0, for ease of reference. We look forward to hearing concrete proposals and use cases for changing (or retaining) the current treatment. }}
 {| class="wikitable" cellspacing="0" cellpadding="5" width=100%
 |valign="TOP" style="background:#FFDADA;border:5px #FDAFAF;padding:1em;"|
@@ Line 22: / Line 33: @@
 In light of the problems with the two most popular proposals for amending the TPM clause, we feel the best option is to keep the provision as is. However, to help address the valid objectives of encouraging CC-licensed content to be used on DRM’d platforms, CC will look for ways to facilitate waivers of the TPM restriction by licensors who want their licensed content to be used on DRM-restricted platforms. This is something we will work on between now and publication of 4.0.
 |}
 {{Infobox |'''Draft 3 Treatment:'''

@@ Line 82: / Line 82: @@
 * '''Treatment in 4.0 d.1:''' Not addressed as still gathering information.
 * ''''Treatment in 4.0 d.2:''' Same.
+* ''''Treatment in 4.0 d.3:''' See main section on Draft 3 Treatment above. This was investigated but CC cannot give a blanket permission to circumvent due to third parties with standing to enforce criminal anti-circumvention laws. (GPL works slightly differently, as in the CC license the work itself is generally notpart of the TPMS system.) Instead, we have gone as far as we believe we can, having the Licensor agree to waive or not assert thelicensor's own TPMs.
@@ Line 104: / Line 104: @@
 * '''Treatment in 4.0 d.1:''' Not addressed as still gathering information.
 * ''''Treatment in 4.0 d.2:''' Same.
 '''''TPM Proposal No. 3:'''''  '''Communicate the DRM prohibition especially on license deeds.''
@@ Line 111: / Line 112: @@
 * '''Treatment in 4.0 d.1''': Not addressed as this is a deed issue.
 * '''Treatment in 4.0 d.2''': Same.
 '''''TPM Proposal No. 4:'''''  '''Make anti-DRM advocacy a bigger part of CC's overall message''
@@ Line 117: / Line 119: @@
 * '''Treatment in 4.0 d.1:''' Not addressed as this is a policy issue.
 * '''Treatment in 4.0 d.2:''' Same.
 ''Please add other TPM proposals here, and number them sequentially.''

← Older revision		Revision as of 03:25, 14 February 2013
Line 24:		Line 24:
	\|}		\|}

		+	{{Infobox \|'''Draft 3 Treatment:'''

		+	In Draft 3, the license has been changed to state that the Licensor agrees to waive or not assert any right or authority to forbid technical modifications, including TPMs applied by the Licensor. This goes as far as as we believe we can go in ensuring that the licensee has the rights that the CC license is intended to grant.
		+
		+	This is a change from Draft 2, which states only that you have the right to make modifications necessary to exercise the Licensed Rights in all media and formats. This additional language is intended to avoid any implication that the licensee has more rights than the license can grant.
		+
		+	It is always possible for a licensor to upload his or her own work to a platform which applies TPMs, even though the licensor applies a CC license to the work. The permission for the third-party platform to apply these TPMs is separate from the CC license, and the CC license cannot affect it so long as CC licenses are nonexclusive. In many jurisdictions, that third party may enforce TPMs through criminal anti-circumvention laws even though the Licensor waives or agrees not to assert any such right.
		+
		+	Because of this, we wish to be clear that the license can only grant the permission to break TPMs applied directly by Licensor; many licensees may still be restricted by third-party rights. }}
	= Overview =		= Overview =

@@ Line 63: / Line 63: @@
 ::: When you Distribute a Work, You waive any legal power to forbid circumvention of technological measures to the extent such circumvention is effected by exercising rights under this License with respect to the Work.
-'''Pros:'''
+Note that a clause of this type could be used in parallel to the existing language; i.e., the license could both prohibit application of TPM and permit circumvention if a TPM was applied.
-* This clause places no new obligations on the distributor, so compliance is easier when compared to a parallel distribution obligation or similar clause that requires a proactive step by the licensee.
-'''Cons:'''
+* '''Pros:'''
-* Permitting circumvention is, in practice, not equivalent to ensuring access, because many TPMs may be difficult or illegal to circumvent. (For example, in Japan, such sales, manufacturing, and other acts related to circumvention device are a crime punishable up to 3 years in prison, etc., according to [http://www.cric.or.jp/cric_e/clj/cl8.html#cl7+A120bis Art.120bis of Japanese copyright law].)
+** This clause places no new obligations on the distributor, so compliance is easier when compared to a parallel distribution obligation or similar clause that requires a proactive step by the licensee.
 '''''TPM Proposal No. 2:'''''  '''Allow parallel distribution in place of total TPM prohibition.'''
-'''Pros:'''
+* '''Pros:'''
-* Allow copying of a digital image under CC-BY into increasingly common TPM-protected distribution channels, such as the Japanese TV programs discussed above.
+** Allow copying of a digital image under CC-BY into increasingly common TPM-protected distribution channels, such as the Japanese TV programs discussed above.
-'''Cons:'''
+* '''Cons:'''
-* It was explicitly rejected during the 3.0 discussion. There were a variety of reasons for this, including negative reception by CC's international affiliate teams. [[Version_3#DRM]] contains extensive review of those discussions.
+** It was explicitly rejected during the 3.0 discussion. There were a variety of reasons for this, including negative reception by CC's international affiliate teams. [[Version_3#DRM]] contains extensive review of those discussions.
-* For more information on the previous discussions about parallel distribution, see:
+** For more information on the previous discussions about parallel distribution, see:
-** the [http://creativecommons.org/weblog/entry/6017 blog post] by Mia Garlick announcing the launch of the 3.0 discussion,
+*** the [http://creativecommons.org/weblog/entry/6017 blog post] by Mia Garlick announcing the launch of the 3.0 discussion,
-** the parallel distribution comments and responses from Mia's [http://lists.ibiblio.org/pipermail/cc-licenses/attachments/20060908/da9db6a3/attachment.pdf 3.0 response chart],
+*** the parallel distribution comments and responses from Mia's [http://lists.ibiblio.org/pipermail/cc-licenses/attachments/20060908/da9db6a3/attachment.pdf 3.0 response chart],
-** the DRM Dave hypothetical and Nic Suzor's [http://lists.ibiblio.org/pipermail/cc-licenses/2006-October/004199.html responses] ([http://lists.ibiblio.org/pipermail/cc-licenses/2006-December/004640.htm #2]),
+*** the DRM Dave hypothetical and Nic Suzor's [http://lists.ibiblio.org/pipermail/cc-licenses/2006-October/004199.html responses] ([http://lists.ibiblio.org/pipermail/cc-licenses/2006-December/004640.htm #2]),
-** [http://lists.ibiblio.org/pipermail/cc-licenses/2007-February/005056.html email list] giving a gist of the discussion compiled by Terry Hancock,
+*** [http://lists.ibiblio.org/pipermail/cc-licenses/2007-February/005056.html email list] giving a gist of the discussion compiled by Terry Hancock,
-** [http://lists.ibiblio.org/pipermail/cc-licenses/2006-October/004277.html the end of the discussion],
+*** [http://lists.ibiblio.org/pipermail/cc-licenses/2006-October/004277.html the end of the discussion],
-** an [http://wiki.mako.cc/ParallelDistribution essay] supporting parallel distribution by Mako Hill and James Grimmelmann and the [http://wiki.mako.cc/ParallelDistribution discussion] it created
+*** an [http://wiki.mako.cc/ParallelDistribution essay] supporting parallel distribution by Mako Hill and James Grimmelmann and the [http://wiki.mako.cc/ParallelDistribution discussion] it created
-** Mike Linksvayer's [http://lists.ibiblio.org/pipermail/cc-licenses/2012-April/006830.html excellent summary] of the 2006 discussion, the current state of DRM and suggestions for 4.0
+*** Mike Linksvayer's [http://lists.ibiblio.org/pipermail/cc-licenses/2012-April/006830.html excellent summary] of the 2006 discussion, the current state of DRM and suggestions for 4.0
 or [http://gondwanaland.com/tmp/cclists-drm.mbox.gz download] all the previous DRM emails.
 '''''TPM Proposal No. 3:'''''  '''Communicate the DRM prohibition especially on license deeds.''
@@ Line 95: / Line 101: @@
 *Cons:
 Suggested by Luis Villa on [http://lists.ibiblio.org/pipermail/cc-licenses/2012-January/006663.html license-discuss].
 '''''TPM Proposal No. 4:'''''  '''Make anti-DRM advocacy a bigger part of CC's overall message''
 *Pros:
 *Cons:
 ''Please add other TPM proposals here, and number them sequentially.''

← Older revision		Revision as of 18:52, 20 September 2012
Line 123:		Line 123:


−	However, Section 1201(3)(a) defines “circumvention” to include a concept of “without the authority of the copyright holder.” This could suggest that if the copyright holder of a protected work grants the right to circumvent DRM applied by a third party, third parties would not have a cause of action under 1201 unless the act of circumvention included accessing another copyrighted work (e.g. reverse engineering and accessing underlying source code to the DRM algorithm itself). The interplay between a CC licensor granting permission to (or agreeing not to enforce) circumvention and the implied or express permission granted the distributor applying the TPM (through a terms of use, distribution agreement, or waiver of the condition in CC licenses prohibiting application of TPMs to CC-licensed works) is unclear.	+	However, Section 1201(3)(a) defines “circumvention” to include a concept of “without the authority of the copyright holder.” This could suggest that if the copyright holder of a protected work grants the right to circumvent DRM applied by a third party, third parties would not have a cause of action under 1201 unless the act of circumvention included accessing another copyrighted work (e.g. reverse engineering and accessing underlying source code to the DRM algorithm itself). The interplay between a CC licensor granting permission to (or agreeing not to enforce) circumvention and the implied or express permission granted the distributor applying the TPM (through a terms of use, distribution agreement, or waiver of the condition in CC licenses prohibiting application of TPMs to CC-licensed works) is unclear. As a practical matter, the cases cited above generally focus on distribution of technology or devices used for circumvention (rather than individual acts of circumvention), where a defense that the copyright holder granted permission to circumvent or agreed not to enforce rights to prevent it generally wouldn’t come up.

@@ Line 122: / Line 122: @@
 * ''Bose BV v. Zavala'', 2010 U.S. Dist. LEXIS 2719 (Mass. 2010)
-However, Section 1201(3)(a) defines “circumvention” to include a concept of “without the authority of the copyright holder.” This could suggest that if the copyright holder of a protected work grants the right to circumvent DRM applied by a third party, third parties would not have a cause of action under 1201 unless the act of circumvention included accessing another copyrighted work (e.g. reverse engineering and accessing underlying source code to the DRM algorithm itself).  Whether a CC licensor grants that authority upon upload to a DRM'd platform through terms or use or otherwise, or via other distribution agreements and what effect that has on a permission to circumvent within the license is uncertain.
 ''Please add other citations that ought to inform this 4.0 issue below.''