[cc-licenses] [Foundation-l] [Commons-l] Requirements for a strong copyleft license
James Grimmelmann
james at grimmelmann.net
Mon Dec 3 17:34:06 EST 2007
On Dec 3, 2007, at 3:32 PM, Terry Hancock wrote:
> This may or may not be included in the concept of copyleft as used by
> the GPL, but I think the argument that the definition of
> "derivative" or
> "copy" under copyright law constrains the extent of copyleft is false.
>
> Copyleft is presented not as an alternative to copyright, but rather
> as
> an alternative to *financial compensation*. Instead of charging a fee
> for the license to use the copyrighted material, we insist on
> conditions
> of use. Thus the limits are on what kind of fee can be charged for a
> copyrighted work, not what works can be copyrighted.
>
> So long as the use is not something which is otherwise allowed under
> "fair use" or "fair dealing" provisions of copyright law, then, you
> need
> a license to use the work. In principle, just about any
> legally-admissible contract requirement can demanded as a condition of
> that use (you are always free not to use the work -- too harsh a set
> of
> requirements is like charging too much money for a work).
This is right, and it provides a chance for a quick interjection on
terminology I've been meaning to make for a few days.
I would say that "weak" and "strong" copyleft are misleading terms
because there's a continuum of strength. A completely non-copyleft
license is at the weakest end. The strongest end (call it CC-SA-to-
infinity) would be something like a requirement that the licensee
agree to license everything she copyrightable she creates under the CC-
SA-to-infinity license. If she doesn't so agree, she can't use the
original CC-SA-to-infinity licensed work at all.
This conversation started out of a belief that the current version of
CC-BY-SA, as generally interpreted, is too weak, and that a strong-er
copyleft version of it is needed for Wikipedia integration. That's
led to an interesting and important discussion about what that strong-
er copyleft license would look like. We should be careful about
calling that strong-er version "the" strong copyleft version CC-BY-SA,
because there are a lot of different degrees of strength it could
take. I'm not sure there'll only ever be one possible "strong"
version of CC-BY-SA worth talking about, and I wouldn't like to end up
in a situation where we need to talk about the "strong strong
copyleft" or the "double-strong copyleft" or "beyond strong copyleft"
or "PowerThirst copyleft" or the "less strong copyleft." Especially
if something like Erik's final goal -- you can embed a CC-BY-SA+ item
in some kinds of larger works that are under free but non-copyleft
licenses -- is part of it, "strong" by itself is going to be a bit of
a misleading description.
> Of course, courts have in the past invalidated contracts on the basis
> that they make "unreasonable" or "unexpected" demands that were not
> understood by the party agreeing to the contract, and so invalidated
> contracts. So, there's probably *some* limit on copyleft. But I'm
> reasonably certain that "what could be considered a derivative under
> copyright law" is not it.
This is also true; there's a limit on how strong a strong copyleft
will be enforceable. I'd guess that sometime before that point, the
stronger copyleft actually becomes counterproductive because it deters
too many people from using it at all.
James
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