Techscam Exceptions for Creative Commons

There are many tech scams that I think impact our cultural commons. Some of the most egregious ones recently have been DRM, GAI, and Crypto (NFTs and the like). I quite like the idea behind creative commons licensing and I wanted to see if the CC license helps mitigate against these issues in any way.

Protections against DRM

If I started licensing work under creative commons, I wouldn’t want any derivative work being controlled by DRM. I was concerned about the wording used in the creative commons license (Section 2.a.4):

The Licensor waives and/or agrees not to assert any right or authority to forbid You from making technical modifications necessary to exercise the Licensed Rights, including technical modifications necessary to circumvent Effective Technological Measures.

https://creativecommons.org/licenses/by-sa/4.0/legalcode.en

I am not a lawyer, but this seems to be saying that it is totally fine to use DRM on your work. The following section includes some pre-emption of use of DRM on any licensed works, which seems like a contradiction. Specifically:

(Section 2.a.5.c) You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material.

(Section 3.b.3) You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, Adapted Material that restrict exercise of the rights granted under the Adapter’s License You apply.

https://creativecommons.org/licenses/by-sa/4.0/legalcode.en

I wonder if this is really specific enough to prevent use of DRM. Supposing artist A uses the BY-SA license on a game, and then artist B makes a new game that re-uses these assets. They could release the source code of the game under BY-SA without any DRM (as required), but would it be a breach of the license if they distributed the game binaries with DRM? I’m not sure.

Similarly, if artist A made a drawing protected by a CC license, and then artist B takes it to use it in a video, and then releases it on their website using a script that prevents right-clicking or EME to save the file, is that against the license’s terms? Viewers can still screenshot it, copy the ideas, and it is trivially easy to circumvent, so would the license prevent this behaviour?

It would be nice is there was a way to define an extension to CC that expressly forbids any use of any kind of DRM / “effective technological measure” on derivative works, not just those that would violate the rights afforded by the license, a simply as stating “BY-SA-NoDRM”.

Protections against GAI

Without getting into a debate about whether scraping to train generative “AI” models is OK or not, and whether “AI” generated art is even culturally valuable or not, let’s assume I just don’t like it and want to expressly forbid the use of any of my work alongside it, in original or derivative form. Can the license help me with this?

Section 2.a.2 discusses cases of fair use, as may be defined by individual countries:

For the avoidance of doubt, where Exceptions and Limitations apply to Your use, this Public License does not apply, and You do not need to comply with its terms and conditions.

https://creativecommons.org/licenses/by-sa/4.0/legalcode.en

This makes it a bit difficult to see how the license would help. I accept that if a country wants to blanket allow scraping to train GAI, there is nothing I can do with any license. But as some countries like the UK seem to be wanting to impose the decision of whether to allow scraping or not onto the creating artist, and when the default position is that fair use / fair dealing would allow scraping, then it does seem like the creative commons license sides with the “AI” techbros on this issue and doesn’t offer the artist any control.

Section 2.b.1 suggests something problematic:

Moral rights, such as the right of integrity, are not licensed under this Public License

https://creativecommons.org/licenses/by-sa/4.0/legalcode.en

According to Wikipedia, one definition of the right of integrity is that it prohibits altering a work in such a way as to make a “distortion” or “mutilation”, or that goes against an artist’s “reputation”. If I held a strong view against GAI, which I do, I might consider the derivative use of my work alongside it to be a distortion and if a share-alike license was used and my name appeared beside GAI generated works, it would certainly go against my reputation. In this case, the creative commons license doesn’t help me.

It would be nice if there was a way to specifically issue an extension so that, in jurisdictions where artists rights recognise either the right to opt a work out of “AI” scraping and training, or where this is not even presumed, that the license protects the work in kind. And similarly, that any derivative works would need to be produced by an actual human. Ideally as simply as saying “BY-SA-NoAI”.

Crypto and NFTs

This kind of combines the issue of effective technical measures / DRM, and use of morally problematic tech. What makes this rather difficult is that the deliberately nebulous and confusing state of affairs around all crypto nonsense makes it difficult to define precisely what it is meant to be and do. As such writing any kind of legal text to prohibit derivative works from going near it would be difficult.

But it would be nice if someone who understood the issue deeply could come up with license text where, if I just said “BY-SA-NoCrypto” then no-one could claim the right to take my work and hawk it as an NFT, and that no derivative works could get embroiled in blockchain shenanigans.

In Summary

I know that one of the core ideals of the creative commons is to give away rights, so it is incredibly unlikely that the people behind creative commons would ever consider changes like this. But something just doesn’t sit right with me when I imagine giving away rights and having people then abuse that gift to the commons by engaging in scammy behaviour. What do you think? Please leave a comment.

lonm.vivaldi.net/2025/01/06/te…

#AI #art #CreativeCommons #Crypto #GenAI #law #NFT #Politics