[cc-community] NC/ND

Anthony osm at inbox.org
Tue Dec 20 10:38:24 EST 2011

On Tue, Dec 20, 2011 at 8:18 AM, drew Roberts <zotz at 100jamz.com> wrote:
> On Monday 19 December 2011 23:33:16 Anthony wrote:
>> On Mon, Dec 19, 2011 at 7:06 PM, Mike Linksvayer <ml at creativecommons.org>
> wrote:
>> > * BY-NC-ND is clearly most problematic in terms of usefully
>> > contributing to a commons
>> What's the difference between BY-NC and BY-NC-ND?  You can use BY-NC
>> in a completely proprietary (ARR) work.  So far as I can tell, you
>> *cannot* use it in a BY-SA work (because if you did, that work would
>> no longer be BY-SA).
> You would think that wouldn't you. I used to. But we have a famous case of a
> BY-SA film incorporating ARR music. (SSTB) So it would seem that you can
> incorporate non-Free stuff in BY-SA licensed works.

We know that you can say that you say that a video is BY-SA even
though you say that it incorporates ARR music.  But in my opinion, a
video which incorporates ARR music is, by definition, *not* BY-SA.

CC-BY-SA specifically says that "For the avoidance of doubt, where the
Work is a musical work, performance or phonogram, the synchronization
of the Work in timed-relation with a moving image ("synching") will be
considered an Adaptation for the purpose of this License."

Given this, there are two possibilities.  1) The entire work (or
substantially all of it) was completely made by people who agree to
release the work this way.  If this is the case, then I would say the
work is *not* BY-SA.  It is, at least de-facto, under a modified
license which is "partially BY-SA"; 2) A significant portion of the
work (beyond fair use / fair dealing / de minimis / whatever) was made
by people who did not agree to release the work this way.  If this is
the case, their copyright has been infringed.  They may not care to
fight it, but their copyright has been infringed.

In case 1, the courts may or may not uphold the ARR restrictions on the music.

> Perhaps this needs to be "fixed" in the next version so that this cannot
> happen anymore. With jail terms, huge fines, and loss of net access all in
> the picture for offenders, why should we make this dangerous for everyday
> people.

Almost certainly no jail terms, but the people whose copyright have
been infringed (in case 2) would be able to sue in civil court;
possibly even get an injunction.

> Or at least so that it must be ***CLEARLY*** indicated if a BY-SA
> work contains any non-Free materials.

There's certainly an argument that if the work is not clearly
indicated as only "partially BY-SA", and distributed with permission
of the ARR holders, that these ARR holders will been at least
partially estopped from suing anyone who thereafter uses the ARR
portion under BY-SA.

> And if the latter so that this work
> cannot incorporate other copyright holders' BY-SA works.

The synchronization clarification seems to make this clear.  It is
explicit with regard to BY-SA music in an ARR video.  But if BY-SA
music in an ARR video is an Adaptation, and not a Collection, surely
ARR music in a BY-SA video is as well.

> Just this week I ran into a case where a friend released a song as BY-SA but
> the underlying music and lyrics (pdf) indicate that they are ARR

Well, this is in some sense a special case of 2, at least under US
law, because you have a statutory mechanical licensing rights.

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