[cc-community] NC/ND

drew Roberts zotz at 100jamz.com
Tue Dec 20 11:40:24 EST 2011


On Tuesday 20 December 2011 10:38:24 Anthony wrote:
> 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.

Let's dig a bit deeper here.

The "For the avoidance of doubt" language has always applied to a video using 
BY-SA music being an adaptation of that music. Notice what types of works are 
listed: "where the Work is a musical work, performance or phonogram"

This bit does not apply to works that are videos. This bit refers to the 
licensed work from what I can tell.

So while it may be safe to assume that a video using BY-SA music must be BY-SA 
itself or run afoul of the BY-SA license (can you have some strange 
circumstance where there is no syncing in the use?) I don't know if the 
license makes it safe to assume the opposite.

Let's say I make a two hour long movie. I make the movie and all dialog and 
sound effects BY-SA. Let's say I make a separate audio track meant to be 
played alongside of the movie. Let's say it consists of all BY and BY-SA 
songs or parts thereof except for one song which a friend of mine gives me 
permission to include in my "sound track" gratis. At this point, what are the 
copyright possibilities of for the "sound track?"
>
> 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.

Don't be so sure about the no jail time. I have heard from a local lawyer that 
simply possessing a CD or DVD with non-licensed works can get you jail time 
in this country.
>
> > 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.

all the best,

drew




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