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.

  • http://k.lenz.name/LB Karl-Friedrich Lenz

    Typo alerts:
    it can never reserve a right to criticize the existing expanse of control, etc. -> expansion

    imho, that means you are not allowed to use a CC licenses with a DRM system yet -> use CC licenses.

    Comment (pasted from my blog):

    Larry Lessig says that the Creative Commons licenses are not DRM (digital rights management), but rather DRE (digital rights expression). They don’t enforce anything by code.

    And he also says that Creative Commons licensed works may not be used in DRM systems, since there are no DRM systems that adequately protect “fair use”. Worse yet, he assumes that it can’t be done: “Code can never accurately map fair use, it can never reserve a right to criticize the existing expansion of control, etc.”

    If that is correct, the European approach to DRM is doomed to failure. That approach tries to balance things by REQUIRING that fair use is not harmed by DRM measures. If rightholders under the European system honor their obligations to make available the means of benefitting from existing fair use rights, would that enable them to use Creative Commons licensed works?

    The starting point would be this restriction in Number 4 a) of the Legal Code of the Creative Commons Licenses:

    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.

    That leads to the question what control of access would be inconsistent with the terms of the License Agreement. Lessig seems to think that “no protection of fair use” is inconsistent.

    However, I could not find any place in the License Agreement where a duty corresponding to that of Article 95b of the new German copyright law is established, that is a duty to provide for fair use when distributing the work.

    Maybe Creative Commons might want to consider imposing such a duty in number 2 of the Legal Code. Or maybe edit the above sentence to read: “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 that prevents fair use of the Work.” As it is, I can’t find any base for assuming that preventing fair use by technological means would be “inconsistent with the terms of this License Agreement”.

    And I don’t understand why DRM measures can’t possibly enable fair use. If there is a legal obligation to do so (as in the European balanced system), I don’t see any technological reason why this should be impossible to build. For example, the Adobe e-book technology enables all sorts of different levels of using an e-book. So it would seem to be only a question of regulation to make some level of use obligatory.

    The problem with the one-sided American DMCA is that the copyright holders get to choose an extreme level of protection as it suits them. If the law requires a balanced level, the technology should be able to provide it.

  • http://mpt.phrasewise.com/ mpt

    Terminology alert: I’d much rather see discussion of “art” than “content” — the latter term makes it sound like a commodity, which is unhelpful in all sorts of ways.

    Meanwhile … It seems to me the main reason DRM systems can’t respect fair use is that DRM is about means, whereas fair use is about ends.

    For example, fair use may allow you to quote up to 200 words of a particular e-book in your own work. How can an e-book reader possibly allow that, and only that? What if, out of the first 200 words you copy into your word processor, you end up only using 60 words, and then you want to copy some more? How is the e-book reader supposed to know that you discarded (or elided) the rest of it? Would a word processor, running in a DRM-encumbered operating system, be required to keep track of the source (and word count thereof) and license for every single word you pasted into a document?

    If so, then as well as increasing demand for digital cameras and analog microphones, DRM would be a make-work scheme for typists, who would be employed — for those occasions when the Copy command was disabled — to retype text from one part of the screen to another.

  • http://www.jura.uni-tuebingen.de/~s-bes1/index_e.html Stefan Bechtold

    What becomes clear when one compares the comments by Larry Lessig and Karl-Friedrich Lenz, I think, is that different conceptions of what “fair use” is and what it should mean in a DRM environment exist.

    Firstly, in European droit d’auteur countries, no broad fair use doctrine exists. Rather, various more precise and limited copyright limitations exist. Due to this different legal approach, it might actually be easier to implement European-style copyright limitations into a DRM system than to implement the U.S. fair use doctrine.

    Secondly, while Larry Lessig is certainly correct that it seems impossible to implement the fair use doctrine in all its aspects in a DRM system, this does not mean that no DRM systems could not be designed which are more fair-use-friendly than current DRM systems. As Julie Cohen & Dan Burk have proposed in a slightly different context, at least certain aspects of the fair use doctrine could be built into a DRM system. Deirdre Mulligan’s and Aaron Burstein’s work points in a similar direction.

    While it is important to find a middle ground between extreme conceptualizations of copyright law (public domain versus extreme control), IMHOm it is also important to conceptualize “fair use” in a more nuanced way.

  • http://www.nagpal.info/ tarun

    The RIAA actions are as transparent as many of their gambits to maintain monopoly. Make an example and use fear to make people toe the line. Just like every digital copy made should be added to that imaginary number of dollars that they have lost in sales, as if every pirate would have bought a copy if it had not been free.

    I agree that as licenses evolve into entities which are able to liberate information instead of the default “restrict” settings, there will have to be a method to avoid exposure contamination to restricted materials. An ancilliary benefit of licenses such as CC include a gentle push towards freeing content. If people set “license handshake protocols” as described by Mr. Fernhout above to only the more free end of the spectrum for their own research and use, then those items which are held in more restrictive manners will find themselves in the ghetto of unwanted and unused. Thus, an encouragement to use a freer license is made.

    DRM systems could evolve in a similar manner to automatically search out and recognize similar content. Whether through language analysis spiders sifting content or image/pattern recognition filters, these could be programmed to look for license information and source attribution. As Mr. Lessig states, DRE and DRM are not the same things, but because licenses such as CC allow a variety of levels of freedom, DRM methodology needs to evolve to protect multiple levels of freedom, whether requiring merely attribution, or denying for-profit use.