[cc-licenses] Version 3.0 - Revised License Drafts
Jim Sowers
jim at spincycle.org
Wed Nov 1 04:21:09 EST 2006
Hello All,
I'm relatively new to the Creative Commons world and very new to this list
(although I have been an attorney for a while and was part of the legal team
at the U.S. Dept. of Justice that brought the very first lawsuit against
Microsoft in 1994 (Civil Action No. 94-1564 )).
Since I'm new, I will assume that my question is basic and has been asked
and answered, so forgive me.
Q: Does taking content that has a non-commercial restriction and using on a
website that runs AdSense violate the non-comm. restriction? Assume that
the primary driver of traffic is the use of CC licensed content?
The language in the license in 4 (c) is: "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."
Seems like this could cover a lot of AdSense-based sites. Just wondering
what the current thinking is on this.
Thanks,
Jim Sowers
P.S. On the style front, virtually every use of the word "such" in the
licenses could (and should!) be replaced with the word "the".
"Such" is an adjective. My take, having worked on a LOT of commercial
documents, is that lawyers want to convert "such" into a definite article.
It seems to be used by lawyers who used to use "said" until the SEC issued
it's plain English requirements, and the lawyers just couldn't get
comfortable with "the", so they switched to "such" -- which adds no more
precision or certainty than the definite article "the". Such is "said's"
ugly cousin.
See: Plain English for Lawyers by Richard C.
Wydick<http://www.amazon.com/Plain-English-Lawyers-Richard-Wydick/dp/1594601518/sr=8-1/qid=1162371708/ref=pd_bbs_sr_1/102-0632934-1094500?ie=UTF8&s=books>
Here are his comments on the use of "said" which are equally applicable to
using "such":
"Consider, for example, the word said in its archaic use as an adjective. No
lawyer in dinner table conversation says:
'The green beans are excellent; please pass said green beans.' Yet legal
pleadings come out like this: The object of said conspiracy among said
defendants was to fix said retail prices of said products in interstate
commerce.
"Lawyers who use said claim that it is more precise than ordinary words like
the, or this, or those. They say it means 'the exact same one mentioned
above.' But the extra precision is either illusory or unnecessary, as the
above example shows. If only one conspiracy has been mentioned in the
preceding material, we will not mistake this conspiracy for some other
conspiracy, and said is unnecessary. If more than one conspiracy has been
previously mentioned, said does not tell us which one of the several is
meant. The extra precision is thus illusory. If the were put in place of
all the saids, the sentence would be no less precise and much less clumsy."
- Plain English for Lawyers, 4th Edition, Richard C.Wydick, pp. 61-62
On 10/30/06, Mia Garlick <mia at creativecommons.org> wrote:
>
> Version 3.0 - Revised License Drafts
>
>
>
>
>
>
>
> So there have been several new amendments to the licenses — mainly as
> a result of the discussions on the cc-licenses list, but some as a
> result of discussions internally and amongst CC's international
> affiliates. A first round of comments to the cc-licenses list
> discussions was posted back at the beginning of September (http://
> lists.ibiblio.org/pipermail/cc-licenses/2006-September/004027.html)
> but the bulk of discussions took place after this posting. The issue
> of the DRM parallel distribution language was debated in earnest.
> Ultimately, however, the general sentiment on the list does not seem
> to favor implementation of the DRM parallel distribution language at
> this stage.
>
> To briefly explain the current round of amendments:
>
> # New language has been included in the second introductory paragraph
> of the license to ensure that the license language is not interpreted
> by a court so as to require that the license be held to be a contract
> but rather to enable the agreement to be interpreted as a license, or
> in the alternative, as a contract.
>
> # Definition of Collection (new generic) & Collective Work (new US) -
> this definition has been tweaked to clarify that it intends to apply
> to all types of copyright protected materials (in the case of the new
> generic); and, that the definition applies to the collocation of more
> than one works (in the case of both licenses) rather than just three
> or more.
>
> # Clause 2 (new generic) - the title has been changed to "Fair
> Dealing Rights" in place of "Fair Use Rights" to ensure that it is
> clear what is covered by this clause in the majority of jurisdictions
> around the world, which have fair dealing.
>
> # Clauses 4(a) & (b) (both licenses) - language has been introduced
> to clarify that the anti-TPM restriction does not apply to private
> copying, only when a work is being shared.
>
> # Clause 4(a) (both licenses) - the ShareAlike condition has been
> clarified to confirm that the other jurisdiction licenses under which
> an SA-licensed work can be relicensed must be of the same license
> version or later (consistent with relicensing under the same
> jurisdiction/generic license).
>
> # Clause 4(e) (new generic) - this clause has been substantially
> revised since the first draft was circulated on the list. The
> revisions reflect the ongoing work of the CC Working Group that has
> been set up to look at the issue of CC licenses and collecting
> societies and represents the agreed on policy for CC licenses going
> forward as regards the collection of collecting society royalties by
> CC licensors. It is designed to take into account the different
> systems that exist in different countries and will be reflected in
> the jurisdiction licenses that version to 3.0.
>
> # Clause 4(f) (new generic) - this clause has been amended to make an
> exception to the retention of the moral right of integrity for
> jurisdictions such as Japan.
>
> # Renaming the "generic" - as you can see from these license drafts,
> we are proposing to rename the generic to "unported." This
> description reflects the terminology used by CC since the
> international license porting process began - we refer to the process
> of adapting a license for a particular jurisdiction as "porting." It
> was felt that new terminology was needed to avoid giving people an
> inaccurate impression that the "generic" license was somehow
> international or more suited to online usage than the "ported"
> licenses. CC will be releasing by the end of the year, some
> guidelines to better clarify the issue of which license to select.
>
> As noted above, these changes, for the most part, reflect list
> discussions and so hopefully a large amount of further discussion is
> not necessary and version 3.0 can be implemented shortly. However,
> if there are further errors or issues identified by people then the
> discussions will continue for as long as necessary to resolve these.
>
> _______________________________________________
> cc-licenses mailing list
> cc-licenses at lists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>
>
>
>
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