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.
