April 13, 2003 · Lessig
Doc has a great post pushing public domain dedications of content. But on the way to his valuable recommendation, Doc writes,
“I believe what Userland and the Creative Commons people have made here is, literally, a DRM � digital rights management � system, in the best possible sense of the acronym.”
I think it is useful and important to distinguish between DRM and DRE — digital rights management vs. digital rights expression. DRE is a technology simply (1) to express rights. The “management” in DRM implies a technology — code — both (1) to express rights and (2) to enforce it.
But for all of the reasons that the DMCA debate has made clear, there are lots of problems with DRM systems precisely because code is used to enforce copyright rights. Code can never accurately map fair use, it can never reserve a right to criticize the existing expanse of control, etc.
DRE is therefore DRM minus the management. A DRE system simply enables an efficient way for people to say what freedoms they are enabling. In a world where the default is “all rights reserved,” CC DRE enables a simple way for people to say “My content is free in the following ways.”
That CC freedom is of course in addition to the freedoms guaranteed by “fair use.” But “fair use” is not, in our view, enough. The Commons needs a richer range of freedoms than the freedoms guaranteed by “fair use.” CC thus enables people voluntarily to increase the freedom around their content.
We believe saying CC-free is an important step for many reasons. But we also think it is importantly different from technologies that would make computers the enforcers of the limits on that freedom. DRE is therefore not DRM.
Finally, one technical point: Our CC licenses expressly state that you can’t use our technology with a DRM system that does not adequately protect “fair use.” As I’ve not seen a DRM system that adequately protects “fair use” yet, imho, that means you are not allowed to use a CC licenses with a DRM system yet. At least that is so if you take seriously the commitments the CC license imposes.