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

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  • From: "Glenn Otis Brown" <glenn AT creativecommons.org>
  • To: cc-sampling AT lists.ibiblio.org
  • Subject: Re: [cc-sampling] First Post / Five Points
  • Date: Sun, 29 Jun 2003 16:33:53 -0800


Hi Chris,

These are all great questions. I'm on the road right now and will take a
crack at them when I get back home, so that I can do it right. (I don't
know if others have chimed in yet . . . ) Thanks.

Glenn


On Fri, 27 Jun 2003 17:51:35 -0700, "Chris Grigg" <chris AT grigg.org> said:
> 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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>
---------------------
Glenn Otis Brown
Executive Director
Creative Commons
glenn AT creativecommons.org
+1.650.723.7572 (telephone)
+1.415.336.1433 (mobile)




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