[cc-licenses] HELP

Taryn Merrick taryn at merrickmgt.com
Fri Apr 14 19:00:10 EDT 2006


On Apr 14, 2006, at 8:55 AM, cc-licenses-request at lists.ibiblio.org  
wrote:

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Today's Topics:

    1. Re:  ShareAlike and version compatibility (Mia Garlick)
    2. Re:  ShareAlike and version compatibility (drew Roberts)
    3.  Against DRM 1.0 (Max Brown)
    4. Re:  Against DRM 1.0 (Rob Myers)
    5. Re:  ShareAlike and version compatibility (Rob Myers)
    6. Re:  Against DRM 1.0 (Evan Prodromou)


----------------------------------------------------------------------

Message: 1
Date: Thu, 13 Apr 2006 21:18:53 -0700
From: Mia Garlick <mia at creativecommons.org>
Subject: Re: [cc-licenses] ShareAlike and version compatibility
To: Discussion on the Creative Commons license drafts
	<cc-licenses at lists.ibiblio.org>
Message-ID: <FA154A19-4B5A-47F6-9765-F0AD6679D263 at creativecommons.org>
Content-Type: text/plain; charset=WINDOWS-1252; delsp=yes;
	format=flowed

the promise/ agreement to retain copyright notices, warranty
disclaimers, license notification, attribution as well as compliance
with the other terms of the license in reliance on & exchange for the
licensor's promise to make the grant of rights under the terms of the
license.

On Apr 13, 2006, at 2:58 PM, drew Roberts wrote:

> On Thursday 13 April 2006 05:49 pm, Mia Garlick wrote:
>> just to answer the question as to what CC thinks - whether it's
>> licenses are only a license, not a contract; in my view, the CC
>> licenses are contracts.
>
> OK, so in the US, what does CC say the consideration is on the part
> of the
> person making use of the license?
>>
>> rgds, mia
>> cc gc
>
> all the best,
>
> drew
>>
>> On Apr 13, 2006, at 1:11 PM, drew Roberts wrote:
>>> On Thursday 13 April 2006 09:08 am, Peter Brink wrote:
>>>> drew Roberts skrev:
>>>>> Let's assume for a second that it would be a contract in
>>>>> Europe, are
>>>>> consideration and "a meeting of the minds" necessary conditions
>>>>> for
>>>>> contracts there? If so, what would be the consideration?
>>>>
>>>> The concept of "consideration" is a common law legal concept. In
>>>> fact,
>>>> when we enter the field of legal theory you will find that the
>>>> differences between civil law jurisdictions and common law
>>>> jurisdictions
>>>> become more pronounced. One of the "features" of the civil law
>>>> tradition
>>>> is its heavy reliance on legal theory (as compared to common law
>>>> that is
>>>> formed by case law). Civil law is, in fact, pretty much equal to
>>>> legal
>>>> science. Preciseness and predictability is its prime objectives.
>>>>
>>>> Needless to say there are copious amounts of works devoted to the
>>>> law of
>>>> contracts, so the following is a very brief overview. It is also
>>>> based
>>>> on Swedish law, which differs from continental law in this
>>>> particular
>>>> field. Sweden does not have a large civil code book, as does
>>>> Germany,
>>>> France, and Italy etc. A large part of Swedish contract law is
>>>> still
>>>> non-codified, the gaps being filled by the use of analogies from
>>>> written
>>>> law.
>>>>
>>>> That being said the basis of contract law in Europe (as in most
>>>> parts of
>>>> the world) is the offer of and the acceptance of obligations.
>>>> Party A
>>>> offers something to B under certain conditions, B accepts and in
>>>> doing
>>>> so becomes obligated to perform what A requested. The classic
>>>> example
>>>> being a purchase; A offers to sell something to B for a given
>>>> amount of
>>>> money, B accepts and becomes obligated to pay A the sum that was
>>>> agreed
>>>> upon. A is in turn obligated to perform his part, the delivery
>>>> of the
>>>> sold goods. So a contract is an exchange of obligations.
>>>>
>>>> However not all exchanges of obligations are contracts. There are
>>>> some
>>>> basic requirements. The exchange must be voluntarily and the offer
>>>> and
>>>> the acceptance must be in accord. To put it in another way: both
>>>> parties
>>>> must intend to be obligated, and the expressions of this intent
>>>> must be
>>>> in accord.
>>>>
>>>> If only one party intends to bound by an obligation and
>>>> unilaterally
>>>> expresses this intention we don?t have a contract properly. What
>>>> we have
>>>> is a gift. Gifts are unilateral legal acts which only binds the
>>>> benefactor.
>>>>
>>>> If the expressions of intent are in discord we normally still
>>>> have a
>>>> valid contract but we might have problems when we try to determine
>>>> what
>>>> has been agreed upon.
>>>>
>>>> It's perfectly possible to have contract, written by one of the
>>>> parties,
>>>> where the terms of the contract can only be accepted or refused by
>>>> the
>>>> other party. Such contracts are called adhesion contracts. In this
>>>> case
>>>> the expression of intent is usually the contract itself.
>>>>
>>>> So to answer your question. No ? a consideration is not
>>>> necessary. A
>>>> "meeting of minds" is however.
>>>>
>>>>> And how could a meeting of the
>>>>> minds be imputed with respect to a person from a jurisdiction
>>>>> with the
>>>>> concept of a license who thought they were issueing a license and
>>>>> not
>>>>> entering into a contract?
>>>>
>>>> That would depend upon international private law. More precisely -
>>>> the
>>>> rules regarding the choice of laws and these rules are not easy to
>>>> understand and are thus largely the domain of legal
>>>> professionals. In
>>>> Europe we have reasonably robust rules that would make it
>>>> possible to
>>>> predict what laws would apply to a contract such as CCPL. If one
>>>> of the
>>>> parties lives in the US the matter becomes more uncertain...
>>>>
>>>>> Is this whole jurisdictional adaptation and the cross
>>>>> jurisdiction clause
>>>>> really a big legal minefield? (I hope I am being clear as to my
>>>>> concern
>>>>> here.)
>>>>
>>>> Well, that depends on where you live and where the other party
>>>> lives...
>>>> It also depends on how you intend to use a CCPL:ed work. If you
>>>> only
>>>> want to make large amounts of copies of a work or redistribute the
>>>> work
>>>> then there should be no problems. If, however, there is a dispute
>>>> over
>>>> the meaning of the term "commercial" then it might be a real
>>>> problem.
>>>
>>> Thanks for your answers. Actually, in that last question, I was
>>> thinking more
>>> from the point of view of a person creating a work and licensing it
>>> under
>>> say, CC BY-SA where the person lives in the US or somewhere else
>>> the a
>>> license can exist (I still have not had an answer as to whether CC
>>> considers
>>> the licenses to be licenses or contracts and I don't remember if
>>> the license
>>> itself says so but I do remember reading that the GPL guys think of
>>> the GPL
>>> as a license and not a contract. Whew!) and thus their intent is
>>> not to enter
>>> into a contract under any conditions WRT the licensing of their
>>> work. So,
>>> could such a person find themselves bound to a contract they never
>>> contemplated entering as a result of how these optional
>>> jurisdictional
>>> clauses work? (Again, I hope it is clear what I am asking.)
>>>
>>>> /Peter Brink
>>>
>>> all the best,
>>>
>>> drew
>>> --
>>> http://www.ourmedia.org/node/145261
>>> Record a song and you might win $1,000.00
>>> http://www.ourmedia.org/user/17145
>>>
>>> _______________________________________________
>>> cc-licenses mailing list
>>> cc-licenses at lists.ibiblio.org
>>> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>>
>> _______________________________________________
>> cc-licenses mailing list
>> cc-licenses at lists.ibiblio.org
>> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>
> --  
> http://www.ourmedia.org/node/145261
> Record a song and you might win $1,000.00
> http://www.ourmedia.org/user/17145
>
> _______________________________________________
> cc-licenses mailing list
> cc-licenses at lists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-licenses



------------------------------

Message: 2
Date: Fri, 14 Apr 2006 06:46:03 -0400
From: drew Roberts <zotz at 100jamz.com>
Subject: Re: [cc-licenses] ShareAlike and version compatibility
To: Discussion on the Creative Commons license drafts
	<cc-licenses at lists.ibiblio.org>
Message-ID: <200604140646.03312.zotz at 100jamz.com>
Content-Type: text/plain;  charset="windows-1252"

On Friday 14 April 2006 12:18 am, Mia Garlick wrote:
> the promise/ agreement to retain copyright notices, warranty
> disclaimers, license notification, attribution as well as compliance
> with the other terms of the license in reliance on & exchange for the
> licensor's promise to make the grant of rights under the terms of the
> license.

Just to be clear, is that the official CC position, or is that you  
expressing
your opinion?
>
> On Apr 13, 2006, at 2:58 PM, drew Roberts wrote:
>> On Thursday 13 April 2006 05:49 pm, Mia Garlick wrote:
>>> just to answer the question as to what CC thinks - whether it's
>>> licenses are only a license, not a contract; in my view, the CC
>>> licenses are contracts.
>>
>> OK, so in the US, what does CC say the consideration is on the part
>> of the
>> person making use of the license?
>>
>>> rgds, mia
>>> cc gc

all the best,

drew
--  
http://www.ourmedia.org/node/145261
Record a song and you might win $1,000.00
http://www.ourmedia.org/user/17145



------------------------------

Message: 3
Date: Fri, 14 Apr 2006 05:21:00 -0700 (PDT)
From: Max Brown <max05001 at yahoo.com>
Subject: [cc-licenses] Against DRM 1.0
To: cc-licenses at lists.ibiblio.org
Message-ID: <20060414122100.80019.qmail at web38602.mail.mud.yahoo.com>
Content-Type: text/plain; charset="iso-8859-1"

Who know "Against DRM 1.0"? It's a free copyleft license for artworks.
  http://www.freecreations.org/Against_DRM.html

  It contains two important clauses that CCPL don't include: a clause  
about related rights and a clause against DRM.
   The first clause authorizes licensee to exercise related rights: on  
the basis of the copyleft clause, performers cannot exercise reserved  
rights concerning their performances of the work; producers of  
phonograms cannot exercise reserved rights concerning the phonograms in  
which they fix the work; broadcasting organizations cannot exercise  
reserved rights concerning broadcastings of the work.
   The second clause prevents the use of DRM to protect the work: if  
licensor uses DRM, the license is not applicable to the work (on the  
contrary, CCPL licensor can use DRM); if licensee uses DRM, license is  
automatically void (on the contrary, CCPL licensee can use DRM in a  
manner not inconsistent with the terms of the license).



  Max

		
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Message: 4
Date: Fri, 14 Apr 2006 14:40:27 +0100
From: Rob Myers <rob at robmyers.org>
Subject: Re: [cc-licenses] Against DRM 1.0
To: Discussion on the Creative Commons license drafts
	<cc-licenses at lists.ibiblio.org>
Message-ID: <897D463D-C5EA-48F6-9EF8-17ACAE9DDEB2 at robmyers.org>
Content-Type: text/plain; charset=US-ASCII; delsp=yes; format=flowed

On 14 Apr 2006, at 13:21, Max Brown wrote:

> Who know "Against DRM 1.0"? It's a free copyleft license for artworks.
> http://www.freecreations.org/Against_DRM.html
>
> It contains two important clauses that CCPL don't include: a clause
> about related rights and a clause against DRM.
> The first clause authorizes licensee to exercise related rights: on
> the basis of the copyleft clause, performers cannot exercise
> reserved rights concerning their performances of the work;
> producers of phonograms cannot exercise reserved rights concerning
> the phonograms in which they fix the work; broadcasting
> organizations cannot exercise reserved rights concerning
> broadcastings of the work.

The related rights CC licences allow you to exercise vary by license.
The NC ones reserve collecting rights if I remember correctly. But
control of related rights varies from jurisdiction to jurisdiction.

> The second clause prevents the use of DRM to protect the work: if
> licensor uses DRM, the license is not applicable to the work (on
> the contrary, CCPL licensor can use DRM); if licensee uses DRM,
> license is automatically void (on the contrary, CCPL licensee can
> use DRM in a manner not inconsistent with the terms of the license).

BY-SA includes an anti-DRM clause. See 4.a of http://
creativecommons.org/licenses/by-sa/2.5/legalcode

"You may not distribute, publicly display, publicly perform, or
publicly digitally perform the Work with any technological measures
that control access or use of the Work in a manner inconsistent with
the terms of this License Agreement."

This ("technological measures") means DRM.

4.a could do with improving so it doesn't set off any DFSG alarms,
but it should not be removed for version 3.0 . DRM (even carefully
named and cleverly marketed DRM from Sun) is fundamentally
incompatible with BY-SA as it makes the freedoms that BY-SA gives
alienable. And I'm sure there's an argument to be made about how DRM
will reduce NC users' ability to make millions off their work as well.

- Rob.


------------------------------

Message: 5
Date: Fri, 14 Apr 2006 14:45:54 +0100
From: Rob Myers <rob at robmyers.org>
Subject: Re: [cc-licenses] ShareAlike and version compatibility
To: Discussion on the Creative Commons license drafts
	<cc-licenses at lists.ibiblio.org>
Message-ID: <BE54CCD3-C80E-4C19-A0FB-8B657BDDDE2D at robmyers.org>
Content-Type: text/plain; charset=US-ASCII; delsp=yes; format=flowed

On 14 Apr 2006, at 11:46, drew Roberts wrote:

> On Friday 14 April 2006 12:18 am, Mia Garlick wrote:
>> the promise/ agreement to retain copyright notices, warranty
>> disclaimers, license notification, attribution as well as compliance
>> with the other terms of the license in reliance on & exchange for the
>> licensor's promise to make the grant of rights under the terms of the
>> license.
>
> Just to be clear, is that the official CC position, or is that you
> expressing
> your opinion?

And if it's CC's position can they please have a think about it. :-)

How are the CC licenses different from the GPL in this respect? The
FSF claim that the GPL is a license not a contract. This has some
important consequences for the perceived corporate friendliness of
the GPL.

http://lwn.net/Articles/61292/
http://www.groklaw.net/articlebasic.php?story=20031214210634851

(Yes I know that licenses are contracts in Europe.)

- Rob.




------------------------------

Message: 6
Date: Fri, 14 Apr 2006 09:54:59 -0400
From: Evan Prodromou <evan at prodromou.name>
Subject: Re: [cc-licenses] Against DRM 1.0
To: Discussion on the Creative Commons license drafts
	<cc-licenses at lists.ibiblio.org>
Message-ID: <1145022899.10599.26.camel at zhora.1481ruerachel.net>
Content-Type: text/plain; charset="us-ascii"

On Fri, 2006-14-04 at 05:21 -0700, Max Brown wrote:

> Who know "Against DRM 1.0"? It's a free copyleft license for artworks.

At least from Debian's point of view, it's not Free as in Freedom.
Keeping me from porting to certain platforms makes it not Free to use.

> The second clause prevents the use of DRM to protect the work: if
> licensor uses DRM, the license is not applicable to the work (on the
> contrary, CCPL licensor can use DRM);

That's not true. See section 4a of Attribution 2.5 (although this has
been in all versions so far):

         You may not distribute, publicly display, publicly perform, or
         publicly digitally perform the Work with any technological
         measures that control access or use of the Work in a manner
         inconsistent with the terms of this License Agreement.

This is one of the reasons that Debian doesn't allow CC-licensed
content:

         http://people.debian.org/~evan/ccsummary

> if licensee uses DRM, license is automatically void (on the contrary,
> CCPL licensee can use DRM in a manner not inconsistent with the terms
> of the license).

So, even if a technology is consistent with the terms of the license,
and lets the user exercise all the rights in the license, the license
still wouldn't allow it? That's just stupid. And the definition of DRM
is a really poor one: "acts which are authorised or not authorised by
licensor" is, logically, any act.

This anti-DRM clause restricts the licensee's ability to port to
platforms where DRM is required. I can't use an image under this license
in many PDA bookreader platforms, nor in console systems like the
Playstation.

A much better scheme (I think) is parallel distribution: licensee can
use DRM, if they make an unrestricted version available, too. That way,
creative folk can experiment with DRM'd platforms, but the recipients of
the work can still exercise their freedoms to distribute and modify the
work.

If you think that the Playstation market is going to dry up from lack of
Open Content images and music, well, think again, and a little harder
this time. Maybe, instead, Open Content will benefit from being
available on DRM platforms.

In summary: this is a dumb license.

~Evan

-- 
Evan Prodromou <evan at prodromou.name>
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