[cc-community] FYI: comment by Eric S Raymond on CC

drew Roberts zotz at 100jamz.com
Fri Feb 15 08:58:41 EST 2008


On Friday 15 February 2008 02:50:04 Andrew Rens wrote:
> Andrew Rens wrote:
> >A substantial number of lawyers believe that there is some sort of implied
> > licence or permission to make a copy in order to browse the website. If
> > that is not the case then why did the copyright holder make the material
> > available on the world wide web? There is no other possible reason other
> > than to allow others to read it.
> > Other lawyers believe that copying to read is allowed by copyright law
> > because reading is never limited by copyright law therefore the copying
> > must be authorised by law.
> >
> > The above may seem like a sidetrack, but it demonstrates that reading a
> > website does not depend on the licence of the website, its further use
> > which is impacted by the licence.
> > If someone can read an all rights reserved website then it follows the
>
> same
>
> > person can read an NC website.
>
> Drew replied:
> Actually, I think according to some of the logic you give above, a person
> on a
> for profit corporation job would be OK reading an ARR website but perhaps
> not
> OK reading an NC licensed website.
>
> ### Not surprisingly I don't agree.
>
> Why would I say something so crazy?
>
> Well, in the case of an ARR site, the implied license is to everyone,
> otherwise, like you say, why would the copyright holder put it up in the
> first place.
>
> In the case of an NC site, no implied license is needed, there is an
> explicit
> license and it anly allows NC use.
>
> ### On the contrary an implied licence is needed according to the very same
> logic, since how else can someone read the NC licence other than by first
> downloading the site?

By putting the notice on the front page that is licensed ARR or something else 
non-NC and having a click through if you agree to the NC terms.

I often run into sites that have a TOS and tell you to get lost if you don't 
agree.

> Only after downloading the site can the reader be 
> aware of what licensing terms the site purports to apply to specific works.
> So an implied licence is needed.
>
> There is an additional problem raised by the argument that a specific
> licence eliminates the need for an implied licence. A website which bore a
> link to a copyright notice which stated "you may not read this website
> without obtaining specific permission first" could also claim to grant a
> specific licence, not to require an implied licence and thus to prohibit
> reading. However requiring specific permission for copying and thus reading
> is meant by "all rights reserved".
>
> Therefore if implied licences are the basis for reading websites then there
> must be an implied licence to browse the site, whatever the copyright terms
> of the site.

?? I am not sure I wollow that. Why must there be an implied license when 
there is an explitit one?

An implied license is needed because otherwise no one would be able to see the 
site and hence why is it put on the web.

With an explicit license, we know why it is on the web... It is there for NC 
use.

(Look, just be to clear, I have no intention of putting up an NC web site. 
BY-SA perhaps, but not NC. That said, It was someone on list who first tole 
me things along this line when I asked a question about it. Similarly, I was 
basically told I was a fool a while back for thinking that it might be 
possible for a for profit coproration to make proper use of an NC work and to 
possibly do things that were not directed towards a profit. Now MIT seems to 
make the same point. Are those people also fools or as deluded as I might 
be?)
>
> The NC Legal Code provides "You may not exercise any of the rights granted
> to You in Section 3 above in any manner that is primarily intended for or
> directed toward commercial advantage or private monetary compensation."
>
> It is thus only when exercising a right granted in Section 3 that that NC
> restriction applies. However there are three theories which suggest that in
> browsing a website a CC licence is unnecessary;
>
>    1.
>
>    because reading is not restricted by copyright and therefore copying
>    to read is not restricted
>    2.
>
>    because there is some sort of implied licence to read or browse,
>    regardless of
>    3.
>
>    because there is some sort of explicit exception (such as fair us or
>    the DMCA provision mentioned in this conversation) or limitation (such
> as the European display provision mentioned in this conversation).
>
> These same theories try to explain the widespread social reality that
> people read webpages all the time and make copies in the process.
> Remarkably while millions of people copy to read all the time I am not
> aware of anyone who has been sued just for copying to read.
>
> There has been a suggestion that this conversation is lacking in common
> sense. I'd like to suggest that any absurdity has its origins in the misfit
> between current copyright law and the digital world. There is a useful
> discussion of this by Professor Lessig at page 136 of Free Culture (
> http://www.ibiblio.org/ebooks/Lessig/Free_Culture/Free%20Culture.htm#nav)

And also just to be clear, this is more than just a theoritical issue with me. 
And also why I then asked about downloading a linked to pdf file that was 
licensed NC when the downloader is a for profit corporation.

I am facing that issue right now with a project I am semi involved in. A GPL 
program that has an NC manual.
>
> Creative Commons solves some of the resulting problems.
>
> Some would benefit from legal reform.
>
> thanks for the conversation
>
> Andrew

all the best,

drew






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