Zune vs. Creative Commons

Take a pre-existing license adopted hundreds of thousands of times. Mix creators and activists with DRM (Digital Rights Management.)

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

Throw in a little Microsoft Zune technology and pour it all into a mixing bowl. Stir well and serve to several hundred thousand captive audience members in cups of controversy. It certainly appears that a firestorm has emerged out of Zune’s “viral DRM” and the DRM clause in the Creative Commons license. Is this a blatant attack on Creative Commons creators or is all of this nothing more then a cloud of smoke?

Slyck contacted a source from Creative Commons Canada to try and clear up some potential confusion. The road opened up to the following explanation found here and here.

The news of Zune came from various news sources. Most notably, the article from MediaLoper which states, “…it appears that Zune’s viral approach to DRM is in violation of all of Creative Commons licenses.” In all fairness, this was not based on an opinion, much rather, the second to the last question in the Creative Commons FAQ which states the following: “If a person uses DRM tools to restrict any of the rights granted in the license, that person violates the license. All of our licenses prohibit licensees from “distributing 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.”

It appears to be a very reasonable, sound, and rock solid argument that the Zune player would violate all Creative Commons licenses. On top of this, it’s also very reasonable to assume that creators that use Creative Commons to license their work had the idea that DRM would be as far apart from their music as East is from West.

Add to this the fact that the author confirmed that yes, Zune will add DRM to music regardless if it’s copyrighted or not. The Zune Insider source states, “I made a song. I own it. How come, when I wirelessly send it to a girl I want to impress, the song has 3 days/3 plays?” Good question. There currently isn’t a way to sniff out what you are sending, so we wrap it all up in DRM. We can’t tell if you are sending a song from a known band or your own home recording so we default to the safety of encoding. And besides, she’ll come see you three days later…”

Quite clearly the author had every reason to assume that Creative Commons licenses were under attack by the Zune technology based on evidence that was gathered.

After some heavy research, Slyck has learned that there is another side to this, interestingly enough. Thanks to some sources from Creative Commons as previously mentioned, the question that was raised was, ‘Would Zune itself violate Creative Commons Licenses, or would the users of Zune violate the Creative Commons licenses?’

After looking into this question, the new side to the discussion begins to unfold. James Grimmelmann in his report explains, “A Creative Commons license can be embedded in an MP3, so that our insider is wrong to say that the Zune can’t ‘sniff out what you are sending.'” So can Creative Commons be definitively freed by the DRM because of this? Not so: “while your Zune can sniff out licenses and determine the apparent licensing status of your music, your Zune can’t sniff out whether you are lying to it. If you have a whole pile of MP3s ripped from CDs or downloaded off the Internets (sic,) it’s easy to use CC’s own tools to embed wholly fraudulent CC licenses in them.”

In this case, obviously Microsoft may have seen this and wisely decided that the Zune should wrap all music in DRM to protect Zune and Creative Commons from abuse. Along with that, it’s to protect Microsoft from being held liable from major music labels who might have reconsidered going along with the Zune idea if such a weakness presented itself. James also made a good point that it’s likely that Microsoft safely assumed that not everyone would be loading up Zune’s players with Creative Commons licences material. This is likely given that it is safe to also assume that not all file-sharing traffic is the result of Creative Commons licensed material being traded. This assumption is also backed up by Big Champaign’s Top Swaps charts. James concludes, “Microsoft hasn’t even passed the basic threshold for violating a license: having been a licensee in the first place. If anyone is violating the licenses here, it’s the users loading up CC files on Zune’s and them sending them to friends along with some tasty DRM.”

So now one can assume that the question now is, ‘Will Creative Commons creators now go after users who violates their licenses?’ Such a move would flip a lot of presumptions and ideologies of various “copyleft” camps on its heads as it is likely to be presumed that an artist using Creative Commons would never legally pursue a consumer – especially over wrapping DRM on a copy of their music.

It wouldn’t likely come to that. James explains, “The process of placing a file on a Zune is not “distribut[ing], publicly display[ing], publicly perform[ing], or publicly digitally distribut[ing] the Work,” so it is explicitly allowed by the license. (It’s also a fair use.) That leaves the act of sending it to a Zune-playing friend. In almost all cases, that’s a private, non-commercial copy that cannot [be substituted in any market for the original]. In other words, we are in one of the heartlands of traditional fair use. For the same reason that users don’t need the permission of the RIAA to allow these restricted Zune-to-Zune transfers, they don’t need the permission of Creative Commons licensors for them. The use is fair.”

James also discusses the Philosophical clash in this scenario, “The DRM clause itself is a problematic one for Creative Commons. The idea behind it is clear enough. DRM can eliminate the practical usefulness of a CC license–yes, you may be licensed to redistribute the work and make changes, too bad the DRM won’t let you. DRM is also philosophically troubling for many people who firmly believe in the Creative Commons philosophy of respectful and voluntary sharing.”

This leaves the Creative Commons DRM clause. Is it an error in judgement or merely something the Creative Commons organization didn’t foresee? While it may be unclear what the answer is (or whether it’s either one at all for that matter) either way, it raises some questions over the effectiveness of the DRM clause. Even this has some movement. As referred to by James’ post, the Creative Commons organization is redrafting the DRM clause in the up and coming third version of the license. Creative Commons says, “there has been much discussion – preparatory to releasing these drafts to the public – about whether to amend the CC licenses to include a “parallel distribution” amendment to the existing “anti-DRM” (or more correctly an “anti-TPM” (technological protection measures)) clause of the CC licenses. As you probably know, the existing clause of the Creative Commons licenses states that:

“You [being the licensee, not the licensor] 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.”

[…]version 3.0 includes amendments designed to make this language clearer.”

Discussion of these proposals can be found here.

This new version is already starting to stir some controversy in itself. Many might remember the debates held over the GPL’s third version (a reference as pointed out by James can be found here) and how much controversy arose from how DRM and open source could and should interact. Perhaps this is history repeating itself for the Creative Commons community. Reportedly, many Creative Commons camps in various jurisdictions around the world are holding off on this aspect given how much controversy could arise if a clause goes the wrong way.

Perhaps, as represented on the Zune website, the only thing that could be set ablaze is the Creative Commons community.

Drew Wilson on Twitter: @icecube85 and Google+.

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