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cc-licenses - Re: [cc-licenses] [Foundation-l] [Commons-l] Requirements for a strong copyleft license

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Subject: Development of Creative Commons licenses

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  • From: James Grimmelmann <james AT grimmelmann.net>
  • To: Development of Creative Commons licenses <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] [Foundation-l] [Commons-l] Requirements for a strong copyleft license
  • Date: Mon, 3 Dec 2007 17:34:06 -0500

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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