[cc-community] using Creative Commons as a fig leave

Gisle Hannemyr gisle at ifi.uio.no
Mon Jul 6 19:26:09 EDT 2009

On 06.07.2009 22:54, Paul Keller wrote:
> hi all, i have just published the text below on my blog at http://www.voyantes.net/blog/?p=382 
> but it probably deserves to get discussed here as well. i am curious  
> what people of this list think about the issues raised and if there  
> are any suggestions how a platform like Tribe of Noise should behave  
> when it comes about informing it's members about licensing their  
> rights to the platform.

Paul, thank you for taking the time to write about this.

As you say, CC licenses are not exclusive, dual licensing is nothing
new, broad transfer of rights are the norm these days, and ToN are
free to ask their users to grant them whatever license grants they
want to be granted.  Legally, ToN are in the clear.

We also know that many users that doesn't read the Terms of Service
before signing up for what they perceive as a social website, and
that many of those that do, apparently do not fully understand the
implications of agreeing to such terms.  As long as ToN advertise
CC BY-SA as their licensing model, many users will probably assume
that CC BY-SA is the /sole/ licensing model of ToN and that the
SA-clause "protects" them against blatant commercial use. (E.g.
if someone uses your BY-SA music as soundtrack for a blockbuster
movie, anyone can share that movie freely. This, the saying goes,
will make the movie's producer license the music directly from you,
rather than using it under CC BY-SA.)

While Lucas Gonze's prediction that the ToN will go bust may well
be the most likely outcome, I think we should pause to think what
will happen if ToN succeeds, and manages to monetize on the catalogue
of music it has acquired in the manner implied by the Terms of Service.
Let's say, for instance, that there will be advertising on the  telly
with jingles from the ToN catalogue, and maybe a major motion picture
with its theme music licensed from ToN.

If that happens, I think there is very likely to be controversy
similar to what we experienced in the Virgin Mobile case:
   http://creativecommons.org/weblog/entry/7680 .

And like in the Virgin Mobile case, Creative Commons is in no way
liable for any commercial exploitation by ToN of its users creative
works. As you say: "[O]ne has to conclude that using a Creative Commons
license has nothing to do with subsequent commercial exploitation of
the uploaded works by Tribe of Noise as the commercial exploitation
is enabled by the parallel license grant to Tribe of Noise."

However, while CC is not liable, I am unhappy about the potential
risks that this type of "dual licensing exploit" exposes users
of CC licenses to, just as Mike Linksvayer was unhappy about how
the photographer misunderstood the license in the Virgin Mobile case.

I think it may be a good idea to think about what we should do about
this /before/ any situation materializes, in order to protect
users of CC from abusive practices and to reduce the harm to the
reputation of the CC licenses that will result from such practices.

However, I don't think this can be resolved by banning dual licensing
or  making CC licenses exclusive, as many (most?) uses of dual
licensing arrangements are reasonable and not harmful in any way.

I must admit that I've don't have any brilliant ideas about how we
should tackle this.  For this, I call upon the collective brilliance
of the cc-community.

However, we should at least make sure that CC users are aware of the
problematic aspects of (this type of) dual licensing.  Paul's blog
is a good start, but there should also be a write-up on this wiki
    - http://wiki.creativecommons.org/Before_Licensing
and perhaps also a mention of this hazard in the FAQ?
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
    "Don't follow leaders // Watch the parkin' meters" - Bob Dylan

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