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Zune vs. Creative Commons

Postby IceCube » Tue Sep 19, 2006 12:19 pm

Take a pre-existing license adopted hundreds of thousands of times. Mix creators and activists with DRM (Digital Rights Management.) 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 <a href=http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=1771 target=_blank>here</a> and <a href=http://www.laboratorium.net/archives/TheZunetheCreativeCommonsandtheDRM.html target=_blank>here</a>.

The news of Zune came from various news sources. Most notably, the article from <a href=http://www.medialoper.com/hot-topics/music/zunes-big-innovation-viral-drm/ target=_blank>MediaLoper</a> 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 <a href=http://wiki.creativecommons.org/FAQ target=_blank>Creative Commons FAQ</a> 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 <a href=http://www.zuneinsider.com/2006/09/answers_to_some.html target=_blank>states</a>, "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 <a href=http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=1771 target=_blank>explains</a>, "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 <a href=http://www.bigchampagne.com/radio.html?PHPSESSID=4198a062e9fcbe0d43637e66725cd816 target=_blank>Top Swaps</a> 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 <a href=http://creativecommons.org/weblog/entry/6017 target=_blank>redrafting the DRM clause</a> 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 <a href=http://lists.ibiblio.org/pipermail/cc-licenses/2006-August/003855.html target=_blank>here</a>.

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 <a href=http://vitanuova.loyalty.org/weblog/nb.cgi/view/vitanuova/2005/06/26/1 target=_blank>here</a>) 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 <a href=-https://www.comingzune.com/ target=_blank>Zune website</a>, the only thing that could be set ablaze is the Creative Commons community.
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Postby GraphiX » Tue Sep 19, 2006 1:10 pm

and i bet you a penny to a pinch of salt vista is going to do the exact same thing.

if microsoft try to compete with apple and other distro's by doing something as insainly stupid as this then they will have no quarms or problems in intergrating this type of "DRM the fuck out of everything approach" to everything from MS from now on.

this is just 1 reason to keep away from vista
and from all hardware that incl DRM and TPM.

i dont even wanna talk or mention about zune
it's dead before it even begins and they seriously expect people to spend their money on this?

anyone who even thinks about buyin this
should choose a to order a shotgun, 2 cartriges point at foot and pull trigger on each foot.
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Postby Forbin01 » Tue Sep 19, 2006 1:27 pm

Where theres a will theres a way....Ill bet the farm that hackers will find a way to smash through all that DRM.
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Postby GraphiX » Tue Sep 19, 2006 1:30 pm

lol i love how people say that.

we shouldn't need hackers or crackers they are supposed to be the bad guys the nasty people.

but lately these are people that is keeping our lives and dreams of "fairuse" alive.

without these nasty people helping us lol
we'd never have fairuse.

maybe crackers/hackers are actually hero's
and its the industry thats the evil now.

the roles have changed.
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Postby lilflip21 » Tue Sep 19, 2006 3:07 pm

GraphiX wrote:lol i love how people say that.

we shouldn't need hackers or crackers they are supposed to be the bad guys the nasty people.

but lately these are people that is keeping our lives and dreams of "fairuse" alive.

without these nasty people helping us lol
we'd never have fairuse.

maybe crackers/hackers are actually hero's
and its the industry thats the evil now.

the roles have changed.


I completely agree... it seems like whenever any new device or piece of software is released now not only do i look at the release date but also calculate the time its gonna take for the hackers/crackers smarter than me to make the new piece of software or hardware useable and enjoyable... atleast someone is looking out for the little guy its just funny its who we used to be taught to fear...
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Postby darkened » Tue Sep 19, 2006 3:27 pm

GraphiX wrote:this is just 1 reason to keep away from vista
and from all hardware that incl DRM and TPM.


Sadly I wish it was that simple. I believe the only way to avoid hardware that contains TPM modules is to revert back to circa P3 or original P4 hardware and never upgrade your system. Ever.
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Postby TDO » Tue Sep 19, 2006 4:06 pm

Well, look at the bright side, more people will migrate to Unix/Linux based systems :).
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Postby Alex H » Tue Sep 19, 2006 11:24 pm

TDO wrote:Well, look at the bright side, more people will migrate to Unix/Linux based systems :).


Damn straight - since checking out some of the Vista Betas I can say that WinXP will be my last Microsoft OS.

And I was actually going to buy a Zune before this DRM thing came along but MS just screwed themselves out of a[nother] customer by DRMing everything the Zune comes in contact with.

And to use yet another horrible analogy, I wonder how Bill would feel if I went over to his place for a BBQ and changed the locks while he was in the can?)
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Postby TDO » Wed Sep 20, 2006 1:20 am

He'd feel violated if an uninvited guest ate some of that bbq :-).
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Postby no_dammagE » Wed Sep 20, 2006 3:31 am

regarding the whole topic - isn't it just the same as the *AA argumentation on courts?
P2P helps piracy (helps violating the licences) -> ban p2p.
Zune helps piracy (helps violating the licences) -> ban zune.
Windows? Blah. Linux? Blah. BSD? Blah.
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Postby Alex H » Wed Sep 20, 2006 4:41 am

no_dammagE wrote:regarding the whole topic - isn't it just the same as the *AA argumentation on courts?
P2P helps piracy (helps violating the licences) -> ban p2p.
Zune helps piracy (helps violating the licences) -> ban zune.


No it's not the same.

Copyright is not an absolute right - the RIAA can take people to court for as long as we (society) decide that people should be able to hold copyright on their stuff.

What MS is doing is preventing people from giving their stuff away. Think about that - someone is trying to stop you from giving your own property away.

This auto-DRMing exhibits all the same properties as a virus, except it's a Microsoft virus so there will actually be a whole public discussion on an issue where MS is clearly in the wrong.

Imagine if it was a Russian hacker named Vlad Voristovich who wrote the code that runs over your media files and prevents you from copying them. Would there be any kind of debate on whether this was an "important tool in the fight against piracy"? Hell no. It would be "an important tool that needs to stay the fuck away from my files" and the AV companies would be going raking in millions as more and more people sign up to get the "fix" (except of course that would be against the DMCA so only non-U.S. AV companies would be benefiting).
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Postby Xsoldier2000 » Wed Sep 20, 2006 7:16 am

Very good article IceCube. I've been kinda of keeping tabs on how the Zune development has been, but hadn't any idea of all this...

As for GraphiX
lol i love how people say that.

we shouldn't need hackers or crackers they are supposed to be the bad guys the nasty people.

but lately these are people that is keeping our lives and dreams of "fairuse" alive.


I have to agree fully with you on that. Maybe the roles have changed and it's time people start looking at the industry in a new light.
,.|.. ò_ó ..|.,
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a fortunate dilemma for Microsoft

Postby frabgod » Wed Sep 20, 2006 10:10 am

I think Microsoft can legitimately say that it has no surefire way of knowing that an MP3 being transmitted from one Zune to another is:

a) an "illegally" downloaded song
b) a freely available song with no DRM

So it goes the safe route and allows sharing of "promo copies" only.

Fortunately for Microsoft, this helps drive users to Zune Marketplace to purchase full copies.

But if it's a freely available song (or an original audio file you created), it sounds like you have to transfer it PC-to-PC (email?), and bypass Zune, in order to get a full copy transferred.

Messy.

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Postby MrFredPFL » Wed Sep 20, 2006 10:53 am

and i can legitimately say that i have no way of knowing that you didn't post this only to spam. therefore, i would be within my rights to delete the post. great attitude, huh? :roll:

of course, the main difference would be: i would not be breaking any existing laws or licenses by deleting your post.
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Postby Fartingbob » Wed Sep 20, 2006 11:06 am

I was shocked to hear that they will automatically DRM any file sent to another player, even those songs which have no licence and were produced with the intention of free distribution.
Its obsurd, and i hope it is challanged either in or out of court until microsoft think of a better way.

And i dont want the zune to die out, i like having competition in the marketplace, although it seems more and more that rather than choosing the best product, we're given the choice of the lesser of 2 (or many) evils.
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Re: a fortunate dilemma for Microsoft

Postby Alex H » Wed Sep 20, 2006 8:09 pm

frabgod wrote:I think Microsoft can legitimately say that it has no surefire way of knowing that an MP3 being transmitted from one Zune to another is:

a) an "illegally" downloaded song
b) a freely available song with no DRM

So it goes the safe route and allows sharing of "promo copies" only.


Microsoft can already say it has no idea what is being transfered from one Zune to another, so there is no "safe route" they have to take.

MS has no business deciding that a recording of me singing in the shower needs to be licenced out as a promo copy. That's my business.
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Postby thejynxed » Wed Sep 20, 2006 8:58 pm

If you write your own license for your own music, and write it in such a way, that adding DRM to the music is in violation of your copyright and whatnot, you could sue MS for adding DRM with their stupid Zune :)
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Postby no_dammagE » Sat Sep 23, 2006 9:02 am

Alex H wrote:
What MS is doing is preventing people from giving their stuff away. Think about that - someone is trying to stop you from giving your own property away.


Call it how you want to - on the one hand Microsoft is hunting pirates who create unauthorized copies (with its illegal EULAs), on the other hand this company is a pirate itself as it prevents authorized copies (breaks a LEGAL licence).
Windows? Blah. Linux? Blah. BSD? Blah.
Just make sure you have a computer licence and I can open your fsckin files.
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