Difference between revisions of "4.0/Technical protection measures"

Treatment in drafts

Overview

Since Version 1.0, the CC licenses have contained language prohibiting imposition of TPMs on CC-licensed works. The current language in CC BY-SA 3.0 4(a) is the following:

You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License.

(Similar language is in 4(b).)

Within the CC and libre licensing communities, this language has been controversial for a long time, in part because it potentially (and paradoxically, given the clause's purpose) limits users' freedoms and complicates use of CC-licensed material in widely used platforms that have TPMs built in.

Outside of the CC and libre licensing communities, awareness of this clause may be minimal. Reasons for this apparently include the choice not to mention this language in the license chooser and human-readable deeds.

One potential solution (the addition of a "parallel distribution" requirement) was extensively discussed, but rejected, for 3.0. For extensive review of the discussion which led up to that rejection, see Version 3#DRM.

Since the creation of the original CC TPM language, TPMs have become more commonplace. For example:

• Several popular game and media distribution platforms, such as the PlayStation and most modern digital TVs (via HDMI/HDCP), require TPMs.

• Apple's iOS App Store app distribution platform uses the combination of FairPlay TPM (and perhaps other measures) to control use of iOS apps. This limitation may constitute an effective technological measure on the content stored within iOS apps, so distribution of CC-licensed materials via the App Store may constitute a violation of the license. Further research on this issue would be welcome; in particular, it would be good to understand under what conditions (if ever), and to what extent, FairPlay or other TPMs in iOS "restrict the ability of a recipient ... to exercise the rights granted" by the CC licenses. A potential starting point for such research, describing various security mechanisms in iOS, including FairPlay and on-disk encryption, may be found here.

• 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

For ease of reference on discussion lists, please do not alter proposal numbers.

TPM Proposal No. 1: Drop prohibition of effective technical protection measures, and add permission to circumvent, possibly using GPLv3's Sec. 3's well vetted language as closely as possible.

After several years of discussion, GPL version 3, Sec. 3 ("Protecting Users' Legal Rights From Anti-Circumvention Law") attempts to allow circumvention of TPMs that either (1) incorporate the GPL-licensed work as part of their functionality or (2) are used to restrict access to the GPL-licensed work. The actual language is as follows:

No covered work shall be deemed part of an effective technological measure ..."

When you convey a covered 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 covered work, and you disclaim any intention to limit operation or modification of the work as a means of enforcing, against the work's users, your or third parties' legal rights to forbid circumvention of technological measures.

The GNU project offers an in-depth explanation of this clause. FSF-E has a summary of several talks on the subject by Richard Stallman and Eben Moglen, as well as drafts of earlier versions of this language here.

The first and third portions of the GPL language focus on the use of the licensed work as a functional component a TPM, rather than application of a TPM to the licensed work. Since CC-licensed works are unlikely to be a functional component of a TPM, these portions are likely inapplicable to Creative Commons licenses. Eliminating those portions leaves the following language (adjusted for terminology in CC 3.0):

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.

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.

• Pros:
  • 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:
  • 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 Art.120bis of Japanese copyright law.)
  • It is also possible to drop the TPM clause in only some licenses; e.g., it may make sense to make CC-BY a more "pure" "attribution is the only requirement" license by dropping the TPM provision altogether, while keeping the requirement in CC-BY-SA. For more discussion of this, see this mailing list thread, among others.
• 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.
• 'Treatment in 4.0 d.4: Revised permission to circumvent from the licensor to cover all TPMs, not just those applied by the licensor.

TPM Proposal No. 2: Allow parallel distribution in place of total TPM prohibition.

• 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.

• 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.
  • For more information on the previous discussions about parallel distribution, see:
    • the blog post by Mia Garlick announcing the launch of the 3.0 discussion,
    • the parallel distribution comments and responses from Mia's 3.0 response chart,
    • the DRM Dave hypothetical and Nic Suzor's responses (#2),
    • email list giving a gist of the discussion compiled by Terry Hancock,
    • the end of the discussion,
    • an essay supporting parallel distribution by Mako Hill and James Grimmelmann and the discussion it created
    • Mike Linksvayer's excellent summary of the 2006 discussion, the current state of DRM and suggestions for 4.0

or download all the previous DRM emails.

• 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: 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.
• 'Treatment in 4.0 d.4:Same.

TPM Proposal No. 3: 'Communicate the DRM prohibition especially on license deeds.

• Pros: Increases license users' awareness of the clause.
• Cons:

Suggested by Luis Villa on license-discuss.

• Treatment in 4.0 d.1: Not addressed as this is a deed issue.
• Treatment in 4.0 d.2: Same.
• Treatment in 4.0 d.3: Same.
• 'Treatment in 4.0 d.4:Same.

TPM Proposal No. 4: 'Make anti-DRM advocacy a bigger part of CC's overall message

• Pros:
• Cons:
• Treatment in 4.0 d.1: Not addressed as this is a policy issue.
• Treatment in 4.0 d.2: Same.
• Treatment in 4.0 d.3: Same.
• 'Treatment in 4.0 d.4:Same.

Please add other TPM proposals here, and number them sequentially.

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 here.
• 2011-12 discussion on cc-community
• debate about parallel distribution on cc-licenses
• proposal for removing TPM restriction in BY on cc-licenses
• summary of DRM issue on cc-licenses

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.

United States

In the United States, the Copyright Act provides that, "“Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.” – 17 U.S.C. § 1203(a)

Case law seems clear that others injured by the circumvention have standing to sue even when they are not the copyright holder.

• EchoStar Satellite, L.L.C. v. Viewtech, Inc., 543 F. Supp. 2d 1201, 1208 (S.D. Cal. 2008)
• Comcast of Illinois X, L.L.C. v. Hightech Electronics, Inc., No. 03 C 3231, 2004 WL 1718522 (N.D.Ill. July 29, 2004)
• 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). 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.

[other jurisdictions]

Please add other citations that ought to inform this 4.0 issue below.