[cc-community] Does BY-SA extend to a newspaper?

Rob Myers rob at robmyers.org
Fri Apr 20 03:15:36 EDT 2007


Terry Hancock wrote:

> Although I understand the motivation to extend the copyleft to
> containing works, it presents a number of nasty consequences which I
> believe have to be avoided if you want it to work (here's a few I can
> think of right off):

Certainly the side effects would need thinking through very thoroughly 
and may be worse than just accepting the loss.

Fair Use would also need to be strongly defined for images, for example 
works of criticism should be able to use images as illustrations under 
Fair Use without having to be copylefted themselves. This is important 
for free speech.

> 1) "License the Universe"
> 
> Any reasonable use of a work means it is "contained" in something else
> whose license you are not able to, or should not attempt, to control.

"Contained" is not a legal term AFAIK and as you are using it here seems 
to cover both use and distribution (in GPL-2 terms).

> For example, an HTML page "contains" an image. 

The code for an HTML page does not contain an image. The rendering of an 
HTML page will create an image that combines the text of the html with 
the pixels of the image in a single unit. This is use.

> A website "contains" an HTML page. 

This is borderline. There is nothing in the site that causes a single 
unit to be rendered incorporating all of its "contained" units, but some 
sites that is a single work (eg an encyclopaedia).

CDs of music are an interesting case. People sometimes don't seem to 
expect BY-SA music to be distributable alongside non-free work.

> The Internet "contains" the website.  

Again no single usable unit is ever created that includes all the 
"contained" units. This is distribution.

> Given that this can clearly be taken
> to unreasonable extremes, where should the line be drawn?  I think it's
> a very good idea for the line to be drawn by license stewards like CC
> instead of leaving it up to lawsuits.

The line should be drawn where the existing social contract of use 
determines that it should be drawn, and/or where it is unreasonable.

> We are saved to a degree by the limited scope of existing copyleft
> terms. They allow any license (including other free licenses) to be
> applied to "mere containers" and to siblings within the same container,
> so they prevent lock-ups due to license incompatibility.

This does not ensure that the users of the "mere container" have the 
same freedom as the creator of the "mere container". Where its creator 
has used free work to achieve the sum effect of a single rendered unit 
this is a loss of freedom.

> Thus, if I have an HTML page with GFDL, GPL, By, and By-SA images in it
> (not to mention "verbatim use only", "By-NC-ND", or "fair use" images),
> then -- if a container-binding copyleft is applied to any of the above
> "free" licenses -- the licensing is locked up and I cannot publish.

Does the page "use" the images? If so the freedom that the creator of 
the page enjoys should not be a privilege that they can deny others.

> As things stand we have a situation with some admitted faults -- it may
> be a little *too* free. But trying to sew up the loopholes is going to
> cause problems, and I'm not convinced that the cure wouldn't be worse
> than the disease.

At the moment we have a situation where what some people regard as an 
obvious case of use (the creation of a single image consisting of text 
and photo in the memory partition of a web browser or a RIP ) is not 
tackled.

There is a precedent within the licenses for for tackling this as an 
exception rather than trying to create a general principle from it: the 
musical synchronization clause for using music in films. So using 
photographs as illustrations could be added as another similar clause.

Or we could recognize that the existence of two such exceptions 
indicates a more general principle and try to codify it, using them as 
examples.

Or we could accept that this is more problematic than the musical case 
and simply explain the licenses better to photographers.

- Rob.


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