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cc-sampling - Re: [cc-sampling] Yet more name

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

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  • From: mark / negativland <markhosler AT charter.net>
  • To: Don Joyce <dj AT webbnet.com>, creative commons license list <cc-sampling AT lists.ibiblio.org>
  • Cc:
  • Subject: Re: [cc-sampling] Yet more name
  • Date: Thu, 02 Oct 2003 00:59:32 -0400

ummm...what *he* said!



mark

On Wed, 1 Oct 2003 21:01:47 -0700
Don Joyce <dj AT webbnet.com> wrote:
ck,
Fair use IS a concept, a (very good) term used to describe a concept, subsequently becoming a label for the little sliver of law it represents. The sliver of law does not encompass the concept, the concept has been reduced to the present law's definition.
All that jumble of unfamiliar words you want to emphasize in this new license are way too many words just to get the idea across, and they are unrecognizable to most people as an artistic imperative, even other artists. Fair use is commonly recognized as an imperative where it applies, the term is decisive - other terms are not. Fair Use is simple, clear, and familiar (as a concept) to most. I'm for expanding, through practical application, the term fair use and apply it to what this license advocates.
I'm for appropriating the term fair use (the law does not own it) and redefining it in this case to cover what this license advocates. These are all degrees of fair use, (no payment, no permission - what it is when you have it) no matter what you call it. The basic parameters of fair use declare such a re-use shall not require permission or payment. That's us too. The term fair use carries with it this re-use parameter awareness. None of your words do. I think it's extremely useful to publicity and explanations to be using terms already understood and appreciated, rather than invent new ones that are neither well understood nor appreciated.

The "problem" of being mistaken for the little sliver of actual fair use law is negligible compared to the problems of making people aware of what this brand new license is all about. In my mind, it's all about the creative re-use of cultural material without payment or permission, and that's fair use enough for me to call it that. We CAN expand the practical definition of fair use, if not the little sliver of law that now confines the concept. The concept preceded the resulting law, and as a concept, it can grow up and leave this little legal nest it's stuck in. It will do so, like all kids, to fulfill itself. (The concept actually flew it's constitutional coop some time ago and is now flying all over the place, like here...)
Let the lawyers complain, but they tend to think backwards - "First the sentence, then the trial!"

(sample from Alice in Wonderland.)
Hopefully, we are not trying to accommodate an inadequate law as it exists, but reaffirm the "common law" of creativity, which might also be called "fair use" as far as I'm concerned. There are no relevant labeling precedents in this sidestepping of inadequate law for the common good. But what we are after are actually wider spread forms of fair use! Where things are relatively free and clear. Let's admit it upfront in the title.

I've dropped "Cut & Paste." I now think Glenn's "Modified Fair Use" is a supremely excellent title, imparting everything we want to impart about this license, including the over-arching fair use concept already familiar to most, and the core re-use concept (fair use) responsible for the very emergence of this new license's modifications.

And frankly, I do like the accompanying aspect that "Modified Fair Use" actually challenges existing fair use restrictions by coming into existence. I don't think it's legally dangerous to cop the term, it's just kinda dissing the presently bound up concept by implication. Somehow, I hope the copyright feds eventually become embarrassed by the way copyright has inhibited and prohibited so many kinds of art (newly emerging art!) over the many years of no-fair-use they have let happen, totally hypnotized by the complete domination of private commercial "rights" over any claims of art, So here's a pin to prick.

(Lawyers discount last paragraph, you don't even want to think backwards* about that.)
I hope the CC group is not averse to having such a side effect (I remain an unaffiliated advisor to this project) but if this sort of inadequacy dissing is unintended by CC, just ignore me, that would be my personal agenda. Modified Fair Use still has my vote for lots of other good reasons, though.
DJ

*Thinking backwards: Term of art within legal advice; a form of specific future avoidance guidance as universally practiced by the legal profession; to think backwards from a possible objection to the possible offense, and then advise against the possible offense.**

**This works for corn flakes, but not for art.





sigh.

I think this discussion is allowing legal language to define the
issues. "Fair use" is not a concept. It is a term of art from
copyright law and we should let it be, ignore it, move on. there's
really no reason to use the term unless you are referring to the legal
fact-- and in fact, there is every reason to get a lot more creative
about the rights we should have to use, resuse, recombine, recompile
and redistribute the culture we've got. fair use is a tiny, pathetic
concession that we have been reduced to nobly defending. The rights
it grants are hardly fair, and our goal should be to work around these
restrictions, whether by cc licenses or other more creative means. if
people ask, we shouldn't say "yes, cc is like fair use" we should say
"no, fair use is the result of weak democracy, what we're doing is
giving you back the rights to use your own culture as you see fit."
Or something like that with a better beat and meter. Meanwhile, lots
of people will keep fairly using stuff, and what we do won't mess
with that, hopefully.

ck


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