Parallel Distribution

1. acl BenjaminMakoHill:read,write,delete,revert,admin JamesGrimmelmann:read,write,delete,revert,admin All:read

James Grimmelmann and BenjaminMakoHill

November 24, 2006

This page has been published and linked from several higher traffic websites. As a result, it is currently locked. If you wish to respond to or comment on this article, please do so on the ParallelDistributionDiscussion page created for that purpose.

For much of the last year, there has a been a quiet debate within the Creative Commons (CC) community over the anti-digital rights management (DRM) clause in CC licenses. This clause serves an important purpose by attempting to block the negative effects of DRM, and for the most part it does so well. But it significantly overreaches in one respect, with the perverse consequence of inhibiting the free reuse of CC-licensed works. Several groups, including lawyers at Creative Commons, have proposed a fix, called "parallel distribution." Adopting that fix is perhaps the most important remaining thing CC should do in this round of license revisions.

The issue is rooted in the short anti-DRM section found in every Creative Commons license. The text of the anti-DRM section has been updated and cleaned up in the current draft text under discussion but it is substantively similar to the text in previous versions. The current draft now reads:

When You distribute, publicly  display, publicly perform, or publicly digitally perform the Work, You may not impose any technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the right granted to them under the License. 

In boiled-down language:

When You [give to others] the Work, You may not [use DRM to] restrict [their ability] to exercise the rights granted to them under the License.

The section is designed to keep nefarious distributors from giving out a Creative Commons-licensed work with one hand and then locking it up inside DRM with the other. If they could do that, it would defeat one of the main goals of CC licensing: that those who use a CC-licensed work not be able to strip the license off and keep it to themselves.

Imagine that Nell Fenwick writes a novel and gives it to a few friends as a text file. Snidely Whiplash then turns her text-formatted novel into an e-book, which he wraps in DRM so that it can only be read using the Whiplash E-Book Player, which blocks any attempts to copy text out. If Horse then buys the e-book version, he has the right under the Creative Commons license to make a copy, to write derivative works, and so on. In practice, Horse has little ability to do so, because the Whiplash DRM stops him. The anti-DRM section in the license is needed to prevent Whiplash from carrying out this dastardly plot. He can't use DRM to restrict Horse's ability to exercise rights that the license gives to Horse.

When dealing with the case of ill-intentioned Snidely Whiplashes, the anti-DRM clause does a good job. A number of people, however, have discovered a corner case in which it does less well. Some devices, for example the Sony PlayStation and other modern gaming systems, can only work with DRM-restricted content. Since there is no way to use or view a work on one of those systems without using the DRM, there is no way to distribute CC-licensed content for one of those systems without running afoul of the anti-DRM clause.

For example, imagine that Dudley Do-Right wants to make Nell's novel available in a PlayStation version. If he puts the novel on a PlayStation-formatted disc, however, DRM protections will prevent that disc from being read except on a PlayStation. Since the PlayStation has no good way to export content, the DRM will restrict Horse from being able to use his full rights under the license.

So far, Dudley and Snidely may seem similar. Dudley, however, wants to do the right thing, both by Nell and by Horse. In addition to giving Horse the PlayStation version, Dudley creates a Web page on which he places the text of the novel along with the required Creative Commons notices. The PlayStation version refers anyone looking for the text back to the Web page. Horse, who wants to make copies for his own friends, and also to write a series of cartoon shorts based on the novel, can now get the text from Dudley's Web page, so that Nell's intent in selecting a Creative Commons license has been honored.

The problem, however, is that the anti-DRM clause treats Dudley and Snidely identically. Dudley's thoughtful and ingenious solution -- the "parallel distribution" of an unencumbered version -- counts for nothing with the anti-DRM clause. If the goal of the anti-DRM clause in CC licenses is to prevent distributors from performing an end run around the stated goals of the license, the parallel distribution of encumbered and unencumbered works is an ideal way to ensure that every person receiving a CC work has both the technical and legal rights to do everything in the license.

Creative Commons has proposed to add a parallel distribution clause to this part of the license. Such a clause would allow Dudley and others like him to give out a DRM-encumbered version of a CC-licensed work as long as he also makes available an unencumbered version that is at least as accessible as the encumbered version. We think that this change is a sensible one that is consistent with the goals of Creative Commons licensing. It encourages broad redistribution across media (even media that use DRM), but still prevents those redistributions from having negative effects on the actual availability of CC-licensed works. Specifically, Creative Commons proposed adding the following language to the anti-DRM clause:

. . . unless You also make a copy or phonorecord of the Work available to the recipient, without additional fee, in at least one medium that does not restrict the ability of a recipient of that copy or phonorecord of the Work to exercise the rights granted to them under the License, provided that that copy or phonorecord of the Work is at least as accessible to the recipient as a practical matter as the Restricted Format.

The executive-summary version of this language is:

. . . unless you also [give away a free copy], in at least one [non-DRMed] medium . . . provided that [the free copy] is at least as accessible to the recipient as a practical matter [as the DRMed copy].

This suggestion, however, has met with resistance from some members of the CC and iCommons community. In the last three months, the cc-licenses list has seen prolonged discussion about parallel distribution. We would like to explain why we think that the objections to the parallel distribution clause can be answered.

While the discussion has been far-ranging, the issue can in almost all cases be boiled down to three major points cited by CC's Mia Garlick in the announcement of the CC 3.0 drafts:

1. Lack of demonstrated use cases showing a strong need for such a clause;
2. Risks of unduly complicating the licenses; and
3. Strong opposition to DRM by many in the CC community.

Because the issues here are complex, we will address each in turn.

First, opponents of a parallel distribution clause have argued that it is unnecessary because there is no substantial, demonstrably affected community whom parallel distribution would assist. This critique argues that the number who are hurt by the lack of a parallel distribution clause is "not measurable by the number of people who purchase PS2 to play PS2 licensed games. The relevant constituency is those developers who want to put CC licensed content in a PS2 game and haven't been able to do so because of the existing license language."

There is no disputing that DRM-only systems, particularly gaming systems, are numerous and that their number is increasing. There is also no denying that there are a substantial number of free and open source software games, several of which have incorporated CC-licensed artwork and music. As long as the current style of anti-DRM clause endures, CC-licensed works will never legally be included in such systems. As with many "opportunity costs," it's hard to know exactly how much parallel distribution is not happening that might happen if things were different. Indeed, the very lack of CC-licensed content on such systems may be in part a product of the lack of a parallel distribution clause. Without one, why even try to produce CC-licensed console game data?

Second, opponents of a parallel distribution clause have argued that including one would complicate the licenses. While the addition of several dozen words to the text of the 2,200 word text of the CC BY-SA license text would represent an increase in license complexity, the net increase is very little in an already complex legal document. Ultimately, the vast majority of users read only the "deeds," which hide the current anti-DRM clause completely! Moreover, many of the definitions, such as that of "Collective Work," are long and irrelevant to most users but are included in every license text. Unaffected users skip these sections just as they would an extra parallel distribution clause.

More importantly, even if the practical issues of license readability and length were severely affected, it is Creative Commons's goal to help creators offer free and open access to CC-licensed works through consistent and predictable licensing rules. Those principles often require legalese, and where they do, Creative Commons has been correct in never shying away from using technical legal language. Indeed, Creative Commons exists to draft precise legal language to deal with licensing details.

The final counter-argument hints at the most important issue at stake in this license discussion because it implies that the role that the anti-DRM clause serves in the CC license is not only to keep users from side-stepping the terms of the license but to attack the institution of DRM itself. This argument can perhaps be illustrated by contrasting two positions.

Both Sherman and Mr. Peabody value individual rights. They both think that Creative Commons is good to the extent that consumers, redistributors, and derivers of CC-licensed works have strong and explicit rights. They both also think that DRM is wrong because it inhibits individual rights. But they disagree about how Creative Commons should respond to DRM.

* Sherman thinks that if a given use of DRM doesn't prevent users from taking advantage of these rights, he doesn't have a problem with it.  He thinks it's most important for Creative Commons to make sure that its rights continue to apply, even when DRM enters the picture.
* Mr. Peabody focuses instead on the overall effect of DRM on individual rights.  He thinks that if Creative Commons-licensed works appear on DRM-enabled devices, Creative Commons is in effect encouraging the use of these devices.  He thinks that it is most important for Creative Commons to discourage the use of DRM by making life inconvenient for DRM users and DRM producers.

Sherman has a significant point that there is no principled argument against DRM itself -- only against the effects of DRM. DRM is bad because (and to the extent that) it takes away users freedom and inconveniences them. If it does not take away users' freedom, it is not bad. We believe that DRM in the context of parallel distribution does not take away users' freedom directly because the freedom users lose with the DRM version is given back to them in the identical "clear" version distributed in parallel.

Some opponents of a parallel distribution clause have said that we are simply wrong, that the users of DRM-only machines like PS2s will be unable to use their hardware to take advantage of the freedoms granted by the non-DRM'd copy. Others have made a related argument that the manufacturers of some DRM-only systems are in a unique position to decided what content their DRM-enabled machines will and will not play. Both arguments start from the same -- and indisputably true -- point: access to a DRM-encrusted system as a user, plus access to a CC-licensed work, does not necessarily equal the ability to use that work on that system. Both of these arguments also point out real power imbalances between the producers and the consumers of technologies -- imbalances that are subject to abuse.

While these arguments are excellent reasons to oppose DRM, they are poor reasons to oppose parallel distribution. DRM is harmful because it artificially and intentionally restricts the ability of an individual to fully engage with a work. Parallel distribution reintroduces this lost ability. It is true that if the individual modifies the work after obtaining it through the parallel distribution, she may not be able to put it on the DRMed platform herself. But she wouldn't have that ability, with or without the parallel distribution clause. (Indeed, without one, she would be forbidden from distributing her modifications through the DRMed channel entirely.) The parallel distribution clause does not solve all of her concerns about freedom, but it helps with some.

Other opponents of parallel distribution concede that Sherman is right about direct harms but, like Mr. Peabody, argue that parallel distribution is indirectly bad. They claim that the freedom individuals gain through parallel distribution is offset by the freedom lost through the indirect consequences of allowing CC-licensed works to be played on DRM systems. These consequences would conceivably stem from additional DRM-enabled PlayStation units purchased in order to play CC enabled content or through what would be seen as implicit support for DRM systems. The fear is that by perpetuating the power imbalances involved in DRM, CC will make things worse for users in general, even if it makes things somewhat better for users of CC-licensed works placed onto DRM systems.

We disagree. First, these power imbalances are hardly unique or most egregious in the context of DRM -- even if a PS2 had no DRM features, it would still be all but useless for copying or modifying games. PlayStations, like cell phones and many other consumer technologies, are inherently and intentionally less capable at copying and modifying data and are, as a result, less empowering than other technologies. It is silly to consider banning the distribution of CC-licensed works to devices that are unable to take full advantage of the freedoms to modify and redistribute under CC licenses because such a ban would make installation on a vast number of devices impossible. We would never want it to be a license violation to send someone a CC-licensed work via mobile phone, and we doubt that Mr. Peabody would, either. This sort of a restriction would be a serious incursion into users' freedom to use their CC-licensed content where they wish and how they wish.

The core question is therefore: Does withholding CC-licensed works from DRM-only system harm the popularity of DRM-only systems sufficiently that users would gain freedom overall from such a restriction? The first argument against parallel distribution, above, would imply that the overall use of CC-licensed works on DRM-only platforms is almost entirely insignificant. Even the most generous accounts of CC's success make it hard to believe that DRM would be significantly harmed by the lack of CC-licensed works. Conversely, the use of CC-licensed works on massively popular DRM-only platforms might help Creative Commons's goals. If unencumbered copies were prominently distributed alongside, it might raise visibility for CC and encourage the adoption of its more permissive licenses.

The amount of harm that Creative Commons does to the free availability of CC-licensed works by staying out of DRM-based systems in situations when users' freedoms are not impinged is much larger than the harm it might cause to the overall adoption of DRM-based systems through participation when users' freedoms are honored. The tactical effect of barring parallel distribution does not offset the cost to the principled goals of openness and freedom upon which both sides in this debate agree. Put simply, Creative Commons and the movement for free cultural works have much more to gain through parallel distribution than DRM has to gain.

In the lack of more clear consensus, the status quo -- no parallel distribution -- will remain. New licenses were announced in October. Discussion of the parallel distribution issue on CC lists has been active but has only involved a small number of people on either side of the issue. If you use CC licenses, have strong feelings either way, and especially if you have not spoken out yet, please send an email to the cc-licenses list immediately. The issue is contentious but it is clear that if the community feels strongly that the status quo is unacceptable, things can change. We encourage you to write in asking for a parallel distribution clause -- but whichever side you take, your input is critical.

This page has been published and linked from several higher traffic websites. As a result, it is currently locked. If you wish to respond to or comment on this article, please do so on the ParallelDistributionDiscussion page created for that purpose.