[ox-en] Hill on Sun's Open Media Commons
- From: Soenke Zehle <soenke.zehle web.de>
- Date: Thu, 16 Nov 2006 09:10:28 +0100
http://mako.cc/copyrighteous/ip/20061115-00.html
Dare to DReaM?
I went to a talk today by Sun scientist Susan Landau on Sun's DReaM/Open
Media Commons DRM system that I've mentioned in the past. Landau used a
variant of these slides to do a rough overview of the Sun system and the
problems that it is trying to solve.
Halfway through her talk, Landau showed a slide titled, "Users Matter:
Creative Commons." Elaborating, Landau mentioned that she had been
talking to a number of people -- both at CC and outside -- about the
possibility of using DReaM to enforce the terms of CC licenses.
I interrupted Landau to point out that CC licenses had an anti-DRM
clause that, as far I knew, would make her system unusable on CC
content. The CC anti-DRM clause, plus the resistance of the CC and
iCommons community to accept parallel distribution language, are why
it's impossible to play CC-licensed works on an unmodified PlayStation
or XBox (these systems only play signed disks) -- even if you include an
unencumbered copy alongside! Landau reassured me that I must be mistaken
and that she had talked about DReaM in depth with CC leadership,
lawyers, and technical advisory board members and she was sure her
system was at least possible. Puzzled, I shut up.
For most of the rest of her talk, Landau talked about fair use and how a
DRM system might go about respecting it. In his qualified endorsement of
the DRM system, Lessig mentioned that DReaM, "would be implemented to
allow individuals to assert 'fair use,' and unlock DRM'd content, with a
tag to trace misuse." At the time, I had a hard time imagining how fair
use could be built into such a system -- separating fair from unfair use
is remarkably resistant to technical solutions. Even bright light cases
like verbatim copies every page of the Encyclopedia Britannica might be
fair use if I were to make them into a paper mâché bust of Johann
Gutenburg or use them to wallpaper a gallery wall.
Landau's acknowledged the trickiness around fair use and suggested a
compromise:
By default, works might be encumbered in the ways and to the
degrees that the copyright holder wish. However, users could petition
for an unencumbered "fair use copy" by identifying themselves and then
checking some boxes and explaining (briefly) why they think their use
for the work qualifies as fair. Once they've done this, the system would
present the user with an unencumbered, watermarked, and fully traceable
piece of media.
Conceivably, requests would be subject to some sort of review (at the
very least to prevent automated requests) and non-fair uses of
watermarked goods would be strictly tracked. If a "fair use" copy is
found in the wild, the watermark would be traced and the originator
would be held liable. Of course, anonymous fair use becomes impossible
but, as Simson Garfinkel pointed out at Landau's talk, users may have a
right to anonymous speech and to fair use but not to anonymous fair use.
"Fair" enough.
It is perhaps important to point out that DReaM does not currently
implement this "fair use" system and that, one can only assume, the vast
majority of DReaM users (e.g., Hollywood movie studios and their ilk)
would have no little interest in giving their users a blanket ability to
make "fair use copies" and would in most cases choose not to enable such
an option.
But let's return to the issue of DRM enforcement of CC license terms.
While I was initially quite confused by the idea of DRM enforcement of
CC license terms, it made much more sense when I looked at the CC
anti-DRM clause itself:
You may not distribute, publicly display, publicly perform, or
publicly digitally perform the Work with any technological measures that
control access or use of the Work in a manner inconsistent with the
terms of this License Agreement.
The emphasis (mine) points to the crux of the issue. The CC anti-DRM
clause only blocks technological measures that overstep the boundaries
set in the rest of the licensee. For the free licenses, that's a wide
boundary that leaves little room for DRM. But as I've pointed out
before, CC is a lot more than just free licenses.
Landau mentioned that her group was primarily interested in using the
DReaM system to enforce attribution and non-derivative work clauses in
CC licenses -- a wise choice as non-commercial use is hard enough for
humans to discern. As a result, the DReaM system might be used to make
it impossible to remove attribution from CC works or might block
modification to works marked as "ND." The catch that led me to believe
that CC license blocked all DRM was the fact that I didn't think it
would be possible for a DRM system to respect fair use. After all, each
CC license includes an explicit affirmation that, "nothing in this
license is intended to reduce, limit, or restrict any rights arising
from fair use."
The question that the possibility of a CC DRM scheme like DReaM hangs on
is: to what degree does Landau's suggestion live up to the fair use
legal bargain?
Landau pointed out that a number of lawyers including Pam Samuelson and
CC's technical advisory board and legal staff have been generally
positive about her fair use permission-asking compromise. Honestly and
on CC's own terms, it's hard to see why they wouldn't be. The loss of
anonymous fair use was only ever a right we enjoyed by a fortunate
accident. Watermarks are only there to "keep honest people honest." If
you are not doing anything wrong, what do you have to hide?
But DReaM enforcement of CC licenses is a bad thing and the bad taste
that it inevitably leaves in many commoners mouths is not hard to explain:
* Many commoners are not comfortable with the idea of DRM because
it shifts power over users' computing devices away from the users and
makes computers obey the will of a copyright holder. That's true of
DReaM just as much as as it is of Apple iTunes or Microsoft DRM.
* Many commoners are not completely comfortable with all CC
licenses, so the idea of technical protection measures enforcing these
terms, even those allowing for fair use lines and in line with the will
of the author, is seen as dangerous.
To solve the first issue, CC needs a more strongly worded anti-DRM
clause -- ideally one tied to a parallel distribution clause. To solve
the second, we will ultimately need a new banner under which only truly
free cultural works will reside.
Susan Landau doesn't have it easy but she does seem to have the genuine
best interest of consumers and users at heart. That's more than I can
say about the vast majority of people in the DRM business. She's trying
to walk a fine line and she's almost certainly being abused and heckled
by folks in the industry who call her "communist" and by folks like me
who feel that she's sacrificing essential principles in an attempt to
compromise. The one thing we all agree on is that the ground she's
treading is mine field.
Yet while I sympathize with her, I must speak out against both her and
DReaM. A DRM compromise at this stage would be insanity. This is a fight
we have to win.
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