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Subject: Development of the Creative Commons Sampling license (or license option)

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  • From: Chris Grigg <chris AT grigg.org>
  • To: creative commons license list <cc-sampling AT lists.ibiblio.org>
  • Subject: [cc-sampling] First Post / Five Points
  • Date: Fri, 27 Jun 2003 17:51:35 -0700

Hi all --

Former Neg-Member Chris here. Been lurking a while, and in addition to saying hi to some old friends (hi, old friends!) would like to offer up a few general comments and clarifying questions; sorry this long, that seems to be the only way I can write anything nontrivial these days. And I hope nobody's put off by my organizing the post into numbered points, it just makes things so much easier for email discussion.

I'm participating here because I support CC in general -- in spirit I fancy myself the mutant public-minded love-child of Larry L. and Jessica L. -- and so would very much like to see a good, solid, practical outcome from the Sampling License initiative. For those who don't know me, outside of the group I have always done music technology and writing; since the U2 event have become quite the amateur copyright law hound; and these days I'm chairman of the MIDI (MMA) Technical Standards Board, also participate in 3GPP and interactive audio standardization, talk at conferences like Project BBQ & the Game Developers Conference, and now, it seems, regularly rant on the pho list about technology, copyright, P2P, and compulsories/actuarials. In other words, I enjoy doing a lot of practical, detailed group process around technical and copyright issues.

So, five points:

1. Context.

In the launch emails for this list, the proposed license language is presented as 'key language'. Key language in what, exactly? I would like to get a characterization of that context, and see the rest of the license language if it exists.


2. Technology Link?

Released CC licenses to date generally include XML representations (DTDs?) to allow for automated processing (in players, tools, etc.) Is this side expected for the Sampling License as well? If so, have the practicalities of this been considered w/r/t recorded music, movies, etc.? Because there would seem to be many tech issues there that, although not insurmountable in the fullness of time, would present significant implementation problems in the near-term future. (Cheap example: Anna rips track B from her CD-Digital Audio, however since the CD contains no metadata area per se, there's no place to staple the XML expression of that track's Sampling License to, and no obvious way for her to find it over the net. How does Anna find the XML?)


3. Vague Fundamental Terminology.

The essential language in the 'FIRST DRAFT' (https://lists.ibiblio.org/sympa/arc/cc-sampling/2003-May/000001.html) depends for its essential meaning wholly on a few inherently vague words, for which I have not yet seen clear definitions provided. Mainly:

- highly transformative
- as appropriate
- partial use
- insubstantial portion
- substantially different

Point being, without clear definition these are -all- judgement calls. If the aim of the license is to encourage sampling-style re-use and avoid litigation or the threat thereof, then any vagueness that could lead to a misunderstanding on the part of the licensee as to what is permitted vs. forbidden increases the likelihood of the licensor being forced to sue to enforce the Sampling License. Counterproductive in the extreme.

So my question is, what is the project plan for defining these, and shouldn't they come sooner rather than later to make sure the participants actually have the same goal in mind? (We see this problem in standards all the time, where halfway through a project everyone has to re-assess their participation and support just because vague language allowed the project to proceed despite the lack of an actual common underlying understanding; it would be a shame to see this worthy project derailed by such a thing.)

Also, "the rights" troubles me a little... is CC staff confident that all the relevant enumerated 17 USC exclusive rights for all the possible relevant art forms are listed in subclause b?


4. Scope, or: General License vs. Negativland's License.

The discussion w/r/t attribution and advertising to me indicates that there is a more or less basic tension between two distinct motivations in the Sampling License project. On the one hand, CC and others wish to produce a generally useful license for partial creative reuse; on the other hand, Negativland wishes the help of knowledgeable people to work out a license that captures they way they think things ought to work. Whereas not all licensors will necessarily agree with some of NL's morality-based views, again for example w/r/t attribution and advertising. I offer this observation -only- in case it helps the project to contextualize that discussion, and from a practical perspective have no strong opinion... other than that to the degree that my preference is for a more generally usable, hence more practical, license, it might be better to treat any license features that are viewed as more idiosyncratically-driven (quite irrespective of any morality concerns) as license options that can be picked and chosen on a per-case basis. Presuming doing so wouldn't derail this project, schedule/labor-wise, of course.

(Personally: As an artist I think there are plenty of cases where observing the attribution requirement would be silly, either because of de minumus uses or because of glaring obviosity, and other cases where for political reasons the tribute effect that attribution tends gives the original could cut against the artistic effect of a work that is intended to be essentially oppositional to the original, and/or its stakeholders.)


5. Sampling License vs. Copyright Chain.

Reading the discussion about the chain of rights and what it is and is not possible to achieve in a license vs. what would require a change to statute, it occurred to me that there are at least three separate classes of use that this project is trying to address, and that it might be helpful to disambiguate them. In the process of doing so, I think I may have found a bit of a problem with the whole project... but I sincerely hope I'm missing something, and that the CC staff will be able to set me straight about that.

All three following classes of use involve a creator, Anna, making a recording B of song C and releasing it under the Samplng License, and then another creator, Dave, using the recording in a new work E:

Anna --> Recording B of Song C--> Dave --> New work E

This is a recorded music example, but I think the same entity relationships hold irrespective of media type.

Class 1: Wholly original works. -- This is the simple case. Anna creates recording B embodying song C, not incorporating anything in which any other party holds copyright, and releases the recording under the Sampling License. Dave exercises the Sampling License, and creates a newer work E incorporating some (perhaps all) of recording B (and therefore also of song C), then distributes copies of E. Dave's legal status w/r/t B and C is clear because of the Sampling License. All is well, the Sampling License works, and there is much rejoicing.

Class 2: Works incorporating both other works (with authorization, perhaps under license, perhaps with payment), and original material. -- Anna creates recording B embodying song C, incorporating with authorization (one or more) elements F in which one or more other parties G hold copyright, and releases the recording under the Sampling License. Dave exercises the Sampling License, and creates a newer work E incorporating some (perhaps all) of recording B (and therefore also of song C and 3rd party elements F), then distributes copies of E. Dave's legal status w/r/t B and C is clear because of the Sampling License, but what is Dave's legal status w/r/t F? It depends, right? Anna may or may not be able to pull F into the Sampling License depending on the agreement(s) with parties G under which material F was used in recording B. If so, all is again well, and more rejoicing (though how likely it is that parties G would allow such a subcontract is open for discussion). But if not, then both Anna and Dave may have potential infringement liability to parties G, and Anna may have contract breach with parties G as well, and maybe liability to Dave for contract breach or failure to disclose etc.

So using the Sampling License in this case could create new liability for the artist who uses it, right? Could seriously discourage use of the Sampling License for class 2 works (not to mention making it look bad). At least Dave might have recourse to Anna -- but maybe that's a bug, not a feature.

Class 3: Works incorporating both other works (without authorization), and original material. -- Anna creates recording B embodying song C, incorporating without authorization (one or more) elements F in which one or more other parties G hold copyright, and releases the recording under the Sampling License. (Anna's opinion as to whether the use of F is or is not a fair use is not relevant to this analysis.) Dave exercises the Sampling License, and creates a newer work E incorporating some (perhaps all) of recording B (and therefore also of song C and 3rd party elements F), then distributes copies of E. Dave's legal status w/r/t B and C is clear because of the Sampling License, but what is Dave's legal status w/r/t F? Again, both Anna and Dave may have potential infringement liability to parties G, and Anna may have contract breach with Dave if the unauthorized nature of the use of F is not disclosed.

I guess there's also a class 4 where there are both authorized and unauthorized 3rd party elements, but it doesn't much further the analysis to go there.

To summarize, classes 2 & 3 seem to me to have serious problems:

- Use of the unauthorized third-party material leaves both Anna and Dave open to an infringement suit by parties G. Yes, fair use may perhaps be raised as a defense by either of them, depending on the art, but that doesn't prevent the suit from being filed in the first place, which is where most of the damage occurs.

- If Dave is sued, does he have a cause of action against Anna? Is it worse if Anna didn't mention that recording B contains unauthorized material F?

So while class 1 is very doable, and while I'm very reluctant to rain on a parade, I have real doubts that the Sampling License would be able to achieve its desired purpose when applied to uses of classes 2 & 3... and of course, the type of sampling work that NL tends to do is class 3 work...

It seems clear to me that under the existing statutes it is not possible for any license, and hence not possible for the Sampling License, to terminate any of the 17 USC exclusive rights, or to grant/sublicense them to a licensee, in cases where the licensor has not obtained any license to the relevant elements (indeed an appropriate, transferrable/extensible/ license). For the Sampling License to be able to terminate parties G's exclusive rights in F, or to allow Anna to convey a sublicense to F upon Dave, without the active involvement of parties G would seem to require an actual rewrite in 17 USC. Ain't gonna happen in time for the Sampling License.


Think I'll leave it at that for now. Hope this is seen in the helpful spirit in which it's offered... again, CC staff, please educate me about what I'm missing!

-- Chris




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