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  • From: Taryn Merrick <taryn AT merrickmgt.com>
  • To: cc-licenses AT lists.ibiblio.org
  • Subject: [cc-licenses] HELP
  • Date: Fri, 14 Apr 2006 18:00:10 -0500


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

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--
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http://www.ourmedia.org/user/17145

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

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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  • [cc-licenses] HELP, Taryn Merrick, 04/14/2006

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