[cc-community] Question about Share Alike

Terry Hancock hancock at anansispaceworks.com
Sun Aug 31 21:19:48 EDT 2008


drew Roberts wrote:
>> Then I realized that the workshop shot was a By-SA image. Ack! The
>> composition was, of course, a license-violation, because I didn't have
>> rights to the screencaps I was using, and obviously couldn't license
>> them By-SA.
> 
> So, just to be sure I understand correctly, the BY-SA work was to be 
> used "essentially" whole or at least enough so so that that use could not 
> fall under fair use like the rest?

I would say so, especially since I wasn't using the background shot for
"review purposes" like the others. I was using it as a
thematically-appropriate piece of artwork.

>> Much _more_ irritating, though, were when I was in a similar situation,
>> except the elements were licensed GPL or FAL and I wanted to combine
>> them with By-SA elements.
> 
> The greatest weakness in action here I think.

You mean you agree that this is the biggest problem?

What irks me about this is that it seems the most "unintentional" of the
consequences. Presumably the authors of those works wanted people like
me to be able to reuse and combine their works with other free-licensed
works, but a legal technicality gets in the way.

I'm also familiar with both the proposed solutions (cross-licensing
agreements) and the criticisms of those (erosion of copyleft). Which I
get. But it's still irksome when it happens.

>> Of course, in any of these cases, I could've sought special permission
>> from the photographer, but I didn't attempt it. It was generally easier
>> to just find a non-copyleft image that would do the trick.
> 
> Yup.

One has the option to ask for permission for _any_ work of course, so
it's clear that the certainty of free licensing is the big win for free
licenses in general. If copyleft fails that, it has failed, and the
"well you could always ask" defense is weak at best.

What I think is interesting about this scenario is that _I_, the user,
was willing to free-license (By-SA license, in fact) all of the work for
which I had a legal right to do so. Nevertheless, there were some things
that SA blocked.

Which is not a fatal argument, of course -- I still think By-SA is good.

OTOH, if -- in the special case of images -- SA can do little good
(can't require my text to be By-SA), then it's a little questionable
whether this penalty was worthwhile. Only the original
photographer/artist can really decide that, of course -- do they think
the composed juxtaposition of their work with "fair use" works is okay,
or not?

If they do, then "By" would probably have been a better option. If not,
then they made the right decision in using "By-SA", and my penalty, of
having to use "By" art (for that illustration), was a small loss.

Mind you, there were several illustrations in the article where the
inset works were also free-licensed (By-SA, By, or public domain), so
that there was no problem using a By-SA image for the background.

FWIW, when I say "background", I don't mean something that was just
covered up with other works (in which case it really wouldn't have
mattered much) -- I mean an establishing image, into which smaller
images are set, so that the insets are meaningfully juxtaposed with the
principal content of the background image.

> I am not sure either. What one generally wants with a Free and copyleft work 
> is to provide a base for others to build on and increase the pool of copyleft 
> works available for all.

Clearly this case didn't _increase_ the pool of copyleft work (my
article did, obviously, but not as a direct result of using the SA
image). On the other hand, it didn't _decrease_ it, either, and it
would've popularized a By-SA piece (instead of a By piece, as it
ultimately would've done -- the opportunity cost of using SA in this case).

> Or to keep people from gratis use of the work who
> are unwilling to pay the copyleft price. Seems like your situation fit the 
> second in a probably unwanted way.

Clearly, of course, I _was_ willing to "pay the copyleft price", I just
couldn't impose that same decision on the pop culture works I was
copying from under "fair use".

It was of course, highly beneficial in this case that using an SA work
did not impose the SA requirement on the _other_ illustrations used in
the work (otherwise, NONE of my illustrations could've been By-SA, just
because I had some "fair use" illustrations in the same work! As it was,
I just had to keep them separate).

I don't mean to advocate for using "By" or "By-SA" for images. I'm just
illustrating one of the interesting cases where the difference is
significant for an author of a free-licensed article.

And I suppose, I _am_ saying that even authors of free works need "By"
or public domain works from time to time.

One might also ask whether my whole article, with its "fair use"
inclusions, is actually "free" in a "four freedoms" sense. I think it's
fair to say that it is -- because if you made a derivative of it, the
illustrations in question would _still_ be "fair use" (the derivative
would still be an academic review). Or, if the derivative cut out the
review so that it no longer did review them, there'd be no reason to
keep the fair use images with it anyway.

Cheers,
Terry


-- 
Terry Hancock (hancock at AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com



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