Re-blogged from Martin Springer:

In is blog article (Dare to DReaM ?) Benjamin Mako Hill names two reasons why DRM enforcement of Creative Commons licenses is a bad thing:

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.

Indeed, DRM (e.g. based on Sun Microsystems’ DReaM/ Open Media Commons) can shift the power from users to copyright holders. Whether this is good or bad boils down to the question who the copyright holders are and what they want. According to the hacker ethics, all information should be free and access to computers should be unlimited and total. So any system that restricts the unlimited access to a computer can be bad. On the other hand, the hacker ethics recognizes that users can own data (don’t litter with other people’s data”) and private data should be protected. A user may be considered to be the copyright holder of his private data. In this respect a DRM system that protects the privacy of individual users from being accessed and exploited by other users (e.g. service providers) can also be good. Mako’s first concern appears to be that in a world of DRM computer users will not have unlimited access to their computers anymore, because certain parts of the computing hardware (e.g. TPM) are “owned” and controlled by copyright holders. Some copyright holders (e.g. movie industry, major labels) can misuse their marketing power to create DRM environments which undermine the freedom of information by restricting users from using their computing devices. By means of DRM copyright holders can restrict access to copyrighted information or to information about hardware and software computing devices. They can prohibit certain computer usages and finally prevent computer users from using public data for creating art and beauty. This is a valid concern, especially in a world where a few monopolists control the technical infrastructure of communication networks, services and devices. Copyright enforcement through DRM can be used to encumber communication in the digital space. In fact many examples illustrate that stupid DRM is the reason for a digital media stalemate (e.g. DVD CSS).

What are the possible implications of CC license enforcement inside DRM environments? Can copyright enforcement through DRM also be used for the better?

• The digital space is infinite since data can be copied. In the digital space it is possible that there are DRM environments and at the same time there are digital media environments without DRM (e.g. the “darknet”, content the public domain). A computing device inside a DRM environment can only execute those actions on DRM protected content that are granted in a license issued by a copyright holder. With interoperable DRM (e.g. based on DMP specifications or on Sun’s DReaM), users may choose to use their computing devices inside DRM environments or outside DRM environments. A computing device inside a DRM environment can enforce the copyright of a rights holder or the contract between a licensor and a licensee.
• Inside a DRM environment CC licenses can technically restrict users from creating derivative works and from misattributing works created by others. Outside a DRM environment CC licenses can only express copyright in a human readable way. Copyright holders may choose to release content for the use in DRM environments or outside DRM environments.
• If copyright holders release content only for the use inside DRM environments users will need computing devices which can be used inside DRM environments. If the technology for computing devices to operate inside DRM environments is protected by software patents, there is a risk that certain users (e.g. using computing devices based on Free Software) will not be able to access certain content. The source code license of their computing devices may be illegal inside DRM environments. Therefore software patents on DRM systems are discriminatory against Free Software licensors.
• If copyright holders express in a license that they charge money for the content they release for the use inside DRM environments users will need to pay in order to access DRM protected content. By licensing content for non-commercial use copyright holders can express that nobody may charge money for their content.
• If copyright holders license CC content for non-commercial use inside DRM environments a lot of free content will be available inside DRM environments. With CC license enforcement inside DRM environments it is likely that many users will access and use CC content inside DRM environments.
• If service providers (e.g. broadcasters) want to charge money for CC content inside DRM environments they will need the permission of the copyright holders. Copyright holders of CC content may issue licenses permitting service providers (e.g. broadcasters) to distribute content commercially (dual licensing).
• Conclusion: CC license enforcement inside DRM environments will shift the power from service providers to content creators (copyright holders).

In my opinion it is unlikely that in the long term only a few copyright holders will control the majority of computing devices through DRM. The creation of copyrighted content is decentralized – creators are everywhere. Also the consumption of content is decentralized (Lucas Gonze called it the “decentralization of taste”). Existing proprietary DRM systems (e.g. DVB Conditional Access (CA)) are merely used to defend the distribution monopolies of a few service providers who came into power by distributing physical media (e.g. the “record industry”).

By virtue of open standards and Free Software the technical infrastructure of the digital space cannot be controlled anymore by a few central authorities. Users control the digital space and its technical infrastructure is decentralized. In the long term it seems that the free flow of information and copyrighted content will be economically more rewarding and the existing monopolies (e.g. of service providers bundling the right to access content with the transmission of data) will fall. Still there is a need for users to determine who can access their private data and for copyright holders to express permissions and restrictions on the usage of their content. In a decentralized infrastructure the question who controls technical protection measures to enforce contracts between copyright holders and users will be the result of case-by-case negotiations. Depending on the content and the services it may be reasonable that a copyright holder, a user or a trusted third party (e.g. Rights Offices) may have unlimited access to certain parts of the computing hardware. The license negotiations between the parties involved can be automatized through protocols and interfaces between computing devices. Free software is a good example how the will of copyright holders (e.g. the authors of software licensed under the GPL) has already protected the digital space from being taken over by the software monopolists. Mako’s second concern seems to be related to his comparison between the Free Software movement and the Creative Commons advocates . Unlike the Free software movement CC is not a movement fighting for the freedom of information but only a movement by some lawyers suggesting some less restrictive copyright licenses for content in the digital space. Mako mentions the website of freedomdefined.org listing licenses under which truly free cultural works will reside. Information should be free and this infomation is not only limited to computer code. Some of these licenses explicitely prohibit the use of content in DRM environments, so this content could be only used in computing devices outside of DRM environments. I agree with Mako that CC licenses may be still too restricive and do not explicitely promote the freedom of information. However, in my opinion the freedom of information is granted by the free access to the source code of our communication infrastructure (e.g. through Free Software) and not through content licenses prohibiting the use of DRM. I fully agree with Mako that we have to win the fight against stupid DRM.

But apart of stupid DRM and no DRM at all I can also imagine DRM environments which are acceptable for many users in the digital space, including the people who are fighting for the freedom of information. It may sound paradoxical, but in order to protect the freedom of information in the digital space some people should consider contributing to the development of intelligent DRM environments rather than complaining against stupid DRM.