The Zune, the Creative Commons, and the DRM

Microsoft announced this week its forthcoming iPod knockoff, the Zune. (The name alone may be enough to sink it in the marketplace.) The advertising pitch seems to be that your Zune will explode and set you on fire. The single big innovation seems to be wireless sharing: if you and another Zune user are nearby in meatspace, you can send them a music file, which will then play on their Zune. It’s like iPodjacking, but without wires, or like toothing, except that it involves music. (Like toothing, it has yet to be shown to exist.)

There’s a catch, though. (There’s always a catch with Microsoft.) Your Zune-enabled friend of convenience can only listen to the file three times, and must do so within three days. After that, the DRM in which Microsoft wraps everything that goes on a Zune will kick in and disable access. (Presumably, this is the price that Microsoft had to pay to get the music industry to go along with wireless sharing.) The Zunes involved will do this regardless of whether the song is copyrighted or whether it’s free for redistribution under, say, a Creative Commons license. In the words of one insider:

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.

This policy has, quite predictably, inspired some outrage. See the comments to that post, and also Medialoper and also BoingBoing. The common thread is that the Zune will “violate Creative Commons licenses,” which contain an anti-DRM clause:

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.

Let’s see how much meaning we can unpack from these various claims.

FIRST, Cory and others have pointed out that 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.” What he should have said is that 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, it’s easy to use CC’s own tools to embed wholly fraudulent CC licenses in them. CC’s descriptions of the process are quite open that seeing a CC license in a file doesn’t guarantee that it really is; they have a clever protocol involving “linkbacks” to increase your certainty, but there’s no substitute for actual investigation. The Zune is just a portable MP3 player and can’t by itself carry out that kind of careful inspection.

SECOND, one might think that given this possibility of deception, Microsoft needed to use DRM to cripple music transfer, less it have its pants sued off by the music industry. That was my reaction, too—what else would stop people from giving their friends complete copies of their entire collections, falsely labeled as CC-licensed. Then I realized that no, there are other forms of speed bumps besides DRM. How about a 25-song limit on streams to a particular Zune per day, and manual selection of a song at a time on the sending Zune? Other forms of technical restrictions are both complements to and substitutes for DRM. It seems possible to design technologies that are inconvenient for wholesale copying but still allow anyone who wishes to work with any particular piece of media they want.

I wouldn’t have advised Microsoft to stand and fight for unrestricted transfers between Zunes of files claiming to be legit. In today’s copyright climate, that’s flirting with disaster. But I would have encouraged their designers to come up with other ways of making Zunes unattractive choices for large-scale file-sharing that didn’t involve DRMing files that started out life un-DRMed ad claim to be free for reuse. I think that there may be designs that would leave MS on fairly safe contributory infringement grounds without inflicting DRM on everything under the sun.

THIRD, It’s not clear to me that this design decision actually causes legal trouble for anyone. First, Microsoft is not, presumably, loading up these devices with CC-licensed media and streaming the files around. Thus, 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 Zunes and them sending them to friends along with some tasty DRM.

Trouble is, I’m not sure that a CC licensor has a case against users who do just that. The process of placing a file on a Zune is not “ditribut[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 substitute for 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.

Can you imagine a court holding that an end user with a CC-licensed song and a Zune is a copyright infringer because she allowed a friend to listen to the song Zune-to-Zune? I didn’t think so. That’s what it means to say that the use violates the license—the user becomes an infringer. I can see that perhaps someone using Zunes to rent music for a few days, or for some commercial process where they keep the music on a tether, might well not be within the terms of the license and could be subject to suit to force them to open up. But Joe and Jane Zune? Given that unlikeliness, I don’t think that anyone could go after Microsoft as a contributory infringer. Once again, if the RIAA couldn’t’ (and I don’t think they could), I don’t see how a CC licensor could, either.

FOURTH, this scenario raises a long-standing and important question: How do Creative Commons licenses interact with fair use? Speaking roughly, on the one hand, the use of a CC license signals that the licensor has an attitude of openness and sharing and has signaled that she does not regard each and every of her exclusive rights as essential to her economic advantage. Therefore, the license should be liberally construed and fair use treated broadly to effectuate her purpose of openness and avoid hidden pitfalls. On the other hand, perhaps by choosing a CC license, the licensor has made a bargain that this is as far as she goes, but no further. On this view, fair use should be narrowed, because the licensor has already been quite generous in other ways.

The tension here is that CC licenses are neither an abdication of all rights nor a greedy enforcement of every last one. They are a sensible middle way. A set of copyright doctrines that pushed too far towards openness or towards exclusivity when there is a CC license in the picture could result in undermining the purposes of the license. How this will and should play out in practice remains an indeterminate question. Some good scholarship on the interpretation of CC licenses is starting to appear, but there is a lot of work to be one. (Particularly notable: Lydia Pallas Loren’s Building a Reliable Semicommons of Creative Works.) I would note, also, that Creative Commons does not offer a “private use only” option on its licenses, perhaps because such an option would cut too close to a “fair use only” restriction. They’ve been quite careful about trying not to restrict the scope of individual fair use rights by accident.

FIFTH, 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.

But actually including a DRM clause causes some issues. First, and perhaps least essentially, I think the drafting of the actual current DRM clause was a disaster. A decade of DMCA caselaw has given us something of a sense of what to expect from the terms of art in “technological measures that control access or use of the Work.” But what on earth does “in a manner inconsistent with the terms of this License Agreement” mean? That language is ambiguous on its face; it could mean either that the DRM forces a downstream user actually to violate the license, or that the DRM gives the downstream user fewer freedoms than the license itself would give. Both readings cause problems in practice; the former can be too slow to kick in, the latter too quick. “Inconsistent” is the troublesome word. It’s easy to describe a legal restriction as being “inconsistent” with a license; it’s easy to describe a particular use as being “inconsistent” with a license. But in what sense is a technical restriction “inconsistent” with a license? That should have been spelled out or rewritten.

Second, a DRM clause is more urgently needed for some licenses than for others. As long as we’re just talking about the original file, that one person has locked it up with DRM is irrelevant if it’s available quite easily from other sources. Only if one DRM-loving party has become dominant enough that its their way or Copyright’s Highway does the DRM become a serious issue. With derivative works under the ShareAlike versions of CC licenses, on the other hand, the DRM clause becomes regularly significant. The fear here is “appropriation”—someone will create a derivative work and then lock that work up with DRM, so that anyone at all who wants the new and improved version has effectively lost the benefit of the CC license. The drafters of the GPL, whose copyleft properties inspired the ShareAlike license option, have been attempting to insert an anti-DRM clause for exactly that reason.

But there is a tough tough question lurking here. Anti-DRM clauses are in one significant sense quite antithetical to the purposes of copyleft and other licenses that aspire to be Free (see also). They create a serious restriction on the rights of individuals to make use of the content in all sorts of ways. For this very reason, the current Creative Commons licenses are considered by many Debian contributors not to be Free.

Creative Commons is indeed redrafting the anti-DRM clause to comply with their concerns. (For reasons with which I strongly disagree, Creative Commons’s international affiliates have put a hold on this change.) The proposed revision would add a “parallel distribution” clause. En-DRMed uses would not violate the license if the offeror of the DRM-ed version also offered an un-DRMed version in a reasonably accessible fashion. I would note that this revision would not, by itself, save the Zune users (a fact that suggests to me that the redraft requires further redrafting), but it would validate other “inadvertent” uses of DRM in which the user was properly conscientious about allowing others to make use of their full CC-granted rights.

In summary, then, the problems posed by the Zune are both deeper and subtler than headlines “Zune Violates Creative Commons License” would suggest. For those interested in the issues, Seth Schoen’s GPL v3 and trusted computing is essential reading.

I have no substantive points on the deeper issues here, but damn is that Zune ad scary. Birds? Fire? Screaming and thrashing? What the hell is that about? (The alternate one, with a man, his rabbit, and a second very tiny man who walks over and pets it, also does not suggest “exciting way to listen to music” so much as “glimpse into the mind of a psychotic man with bizarre delusions”).

Could Microsoft be seen as breaking the “circumvention tools” provisions of the DMCA? It seems they’re distributing (commercially, too!) a technology designed to permit distribution of copyright material in a manner (namely, DRM-restricted) undesired by the copyright holders. If copyright holders are allowed to forbid distribution that otherwise would be fair use - or tools for such - because it’s done without a DRM wrapper, then copyright holders also ought to be allowed to forbid distribution that otherwise would be fair use - or tools for such - because it’s done with a DRM wrapper.

Of course, “ought” and two bucks will buy you coffee, but.

Cory Doctorow writes:

What Grimmelmann is missing on Zune/CC…

…is that MSFT routinely builds restrictions into its equipment in order to keep its users from committing infringements; however, they won’t give the users the freedom to keep from infringing. The MSFT party line is that they cripple their devices because nothing is more important than respecting the will of rightsholders; but they won’t free their devices to respect the will of rightsholders. Rightsholders’ wishes are important to MSFT as an excuse for monotonically ratcheting up the restrictions, but are irrelevant when they enable restrictions to be relaxed.

I haven’t seen anyone argue that CC rightsholders should have the right to sue MSFT for the Zune’s device. But I think it’s proper for CC rightsholders to be indignant that protecting their business-model isn’t important to MSFT, while protecting the entertainment industry’s business model is a pretext for redesigning its entire business.

MSFT violates the CC licenses in the sense of deliberately omitting consideration for them in their product designs — by trumping the will of the users of the licenses.

CC licenses are laypersons’ licenses, folk licenses that embody a practice and a code of conduct as well as the law, and their norms are being negotiated by non-lawyers — practicioners. They don’t use “violate the license” in the legal sense, but they’re correct to say that in the same sense that PlaysForSure “honors” the license of Sony BMG or Universal, that Zune “violates” CC licenses.

Which is all absolutely correct.

You’ve probably already caught this, but you gained notice in Ars Technica today.

I should note also that I appear to have missed one significant technical detail. I am informed that a Zune-to-Zune streamed song that started out its life as an unencumbered MP3 file can be removed from the second Zune back to a computer. It’s just that it won’t play on the second Zune for more than 3 days or 3 times.

I don’t think this affects my analysis in any major ways. The replay limit is still a deliberate limit, but it’s now closer to the “speed bumps” I was recommending, rather than a full crippling of the Zune’s capacities. The case for fair use is even stronger, and the drafting issues in the CC license remain.

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