Ugh. I just read an article on Wired today about Zune and Creative Commons.

The super condensed version: Zune has a sharing feature that allows a file to be transfered to another Zune, but the receiving Zune has only 3 days or 3 plays (whichever comes first) to listen to it before it’s rendered useless. This goes against the spirit if not the letter of some Creative Commons licenses, which state that DRM cannot be applied to the source files.

Here’s where it gets ugly:

Garlick told me that should the device become popular, the Creative Commons could revise its license so that the device-level hampering of sharing would violate the license as much as adding file-based digital rights management to a CC file does today.

If this were to happen, every content creator currently licensing stuff under one of the applicable Creative Commons licenses would have grounds for legal action against Microsoft, Zune owners or both, for violating the terms of the Creative Commons license.

The thing that bothers me here is the implication that Creative Commons artists could hold Microsoft accountable and sue them. Isn’t this attitude exactly what we hate about the RIAA? Isn’t this what The RIAA tried to do to the original Diamond MP3 player? Do we really want to be able to hold the device maker accountable simply because somebody could use it in a way that violates some license out there? Isn’t it really the user who issues the “share” command on the Zune the violator of the license?

I should make a license that says my music cannot be played back on a portable device, period. Then I’ll sue Apple and Microsoft and SanDisk and everyone else for making portable Mp3 players that can be used to break my license! I’ll then make a license that says it can’t be photographed, and then I’ll sue all the camera makers out there for breaking my license too! I’ll be rich!

Seriously though, I don’t like this attitude. Cameras are a great example of how this thinking is wrong -- they can easily be used to take pictures of things you’re not supposed to, but it’s silly to think that the camera maker should be held accountable for that.

Yes, Microsoft is stupid for putting a crippling feature in the Zune, but MS shouldn’t be held accountable if someone happens to use the device to break some music license out there. The idea that anyone -- whether big, evil music studios or small indie artists -- can make a license and apply it to a standard file format and then force manufacturers to comply with it is dangerous. I really hope that Creative Commons artists don’t turn into the very people that they claim to be rallying against.

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