[cc-licenses] Draft 4 discussion period: license drafts and open issues

Sarah Pearson sarah at creativecommons.org
Tue Sep 17 17:57:32 EDT 2013


On Mon, Sep 16, 2013 at 10:03 PM, Gregory Maxwell <gmaxwell at gmail.com>wrote:

> On Mon, Sep 16, 2013 at 4:34 PM, Kat Walsh <kat at creativecommons.org>
> wrote:
> > I hope that everyone has gotten a chance to read through draft 4 of 4.0
> > BY-NC-SA, distributed a few days ago. The other 5 licenses are now posted
> > along with it:
>
> I have to say that I am really surprised and disappointed by the
> changes in this latest draft, especially in that they are so
> substantive and seem to have come without any public discussion on
> cc-licenses.
>

These changes are, in large part, a result of community reactions to the
last draft, including input we received at the CC Global Summit last month.
The formal public discussion on these issues is happening now. Thanks for
weighing in. Some thoughts and responses inline below.


>
> > Attribution:
> > In the Attribution section, the URI requirement now more closely
> resembles
> > 3.0, in that URIs must be retained if supplied with the licensed
> material.
> > The requirement to indicate modifications is now independent of the URI
> > requirement, and indications of prior modifications to a licensed work
> must
> > also be retained.
>
> The URI requirement privileges hosting providers by allowing them to
> terms-of-service affix an effective advertisement onto works.  The
> result is legally ambiguous: what happens when works from multiple
> sources are combined?  Do we end up having to maintain a long list of
> URLs with every work and print them along with them?  If not then
> isn't this term completely mooted by just setting up a pretextual host
> with a TOS that overrides the url to wash the content through?
>
> What happens when a hosting provider with terms of service URI
> assignment mistreats its community of contributors and the vast
> majority of the active ones find a new home, as we saw with
> wikitravel? Must they continue to promote some old host who continues
> to exploit the content that they wrote?
>
> In the area of free software, licenses with advertising clauses are
> not tolerated and are considered unfree (e.g. BSD with advertising
> clause).
>
> I urge creative commons to not facilitate exploitative land grabs by
> powerful hosting providers where authors have little to no negotiating
> power by at least revising this clause to say that it may not be set
> by terms of service.
>

In d3, we limited the URI requirement to situations where the licensed
material was modified, and the reaction was largely negative. We heard from
a wide variety of adopters that the URI requirement was important in all
cases, not just where the material is modified. The reversion back to the
3.0 requirement in this draft is a response to that reaction.

Use of the requirement for advertising purposes is certainly not the
intent, but it is a danger with this approach.  To my knowledge, we have
not heard of a lot of real-life abuse of the URI requirement in connection
with version 3.0, but that does not mean it does not occur. We will be
interested to hear if others are leery of maintaining this requirement from
3.0.

Is there a reason you think indicating a URI via terms of service is
particularly problematic? Why is it worse than indicating a URI in a
license notice, for example?


>
> > In the ShareAlike licenses, there is now an express permission for
> > downstream users to comply with all obligations to all upstream licensors
> > with reference to the terms and conditions of the Adapter's License.
>
> I don't think this could have been any more opaque if you'd encrypted
> it before sending it. I know worrying about this NSA thing is now
> fashionable, but for license discussion we should strive for clarity.
>
> The actual text of the license is this:
>
> > Every recipient of the Licensed Material from You from you automatically
> receives an offer from the Licensor to exercise the Licensed Rights in the
> Adapted Material subject to the terms and conditions of Your Adapter's
> License.
>
> Which utilizes the definitions:
>
> "Adapter's License" means the license You apply to Your Copyright and
> Similar Rights in Your contributions to Adapted Material.
>
> and
>
> "You" means the individual or entity exercising the Licensed Rights
> under this Public License. Your has a corresponding meaning.
>
> What I think(?) this text is saying if I create a CC-BY-SA-4 work and
> I distribute it, and someone later makes an adaptation under a license
> which I've never seen before, which may not even exist until moments
> before the adaptation is distributed, and I might even consider
> unconscionable, that I am granting the downstream user a license under
> that license, no matter what.
>
> Is this a misread? It's very unclear.  As written this sounds more
> like a trapdoor BY license and not a copyleft.
>

This is partially correct. If you create a BY-SA 4.0 work, someone can
adapt your work and apply BY-SA 5.0. Someone downstream can use the terms
of 5.0 to attribute you and the adapter when they are using the adaptation. If
they extract only your work from the adaptation (where that is
possible)[FN], then the terms of the original license (BY-SA 4.0) apply.
This concept is a difficult one to convey in plain language, so we
recognize the clause in d4 may not be the right way of expressing it. We
will continue to think about ways of making it more clear and are all ears
if you or others have suggestions.

>
> [Beyond the generally problematic /apparently intended/ behavior, the
> specific drafting used is so boundless that that the adapter's license
> of unspecified terms would apply even in the case of an adaptation
> created under an unlawfully-applied adapter's license. For example,
> person A licenses under BY-SA, person B makes an adaptation under the
> Exploitative Jerk License (unlawfully), and sells their work to party
> C. You now wish to stop party C, but party C argues he enjoys the
> rights you granted him under the Exploitative Jerk License.
>

This is an interesting point. Perhaps one way of fixing this hole is to add
something to the definition of Adapter’s License that makes it clear
something only qualifies if it is applied in accordance with the terms of
the license? (e.g., “Adapter's License means the license You apply to Your
Copyright and Similar Rights in Your contributions to Adapted Material in
accordance with the terms and conditions of this Public License.”)


>
> The often tortured line between aggregation and adaptation further
> complicates this, as it is already a norm for "clear adaptions" to be
> made, like synced audio and video, where the adapting party offers
> "[Their] Copyright and Similar Rights in [Their] contributions to
> Adapted Material" under BY-SA incompatible terms for the purpose of
> disaggregation.
>

I’m not sure I follow this. Can you explain further?


>
> This is important because it would often be non-freedom preserving
> downstream commercial exploitation of an adaptation that a licensor
> would seek to stop, not another author, though this is not my primary
> complaint.]
>
> [Also another drafting nit, b.1's use of the serial comma around
> "must be a Creative Commons license, this version or later, with the
> same License Elements, or a BY-SA Compatible License" allows a
> misreading "must be (any) Creative commons license, or this version
> license, or later-version with the same license elements, or a by-sa
> compatible license" the misreading is intensified by the redundancy in
> the correct reading.]
>

Duly noted. We will fix the phrasing/grammar here to make it clear.


>
> Having a licensor grant boundless and unspecified terms does not seem
> to be in accord with Creative Commons' published intent for share
> alike licenses to only permit use with terms which use tailored
> restrictions to protect the freedoms enabled in the license. This is
> especially significant in light of the fact that the apparent
> functional difference in this text and the prior text is that it would
> permit a later adaptation to permit activities over this work which
> were expressly forbidden by the license the author consented to.
>

Again, I’m not sure I follow your reasoning here. Under ShareAlike 4.0 as
drafted, it is not the case that there are boundless possibilities for
licensing adaptations. The only licenses that an adapter may apply are
later versions or ports of BY-SA. [Eventually, it may be the case that
adapters can apply a license deemed a BY-SA Compatible License, but there
are no such licenses to date. This designation would only occur after a
thorough vetting and public discussion. One of the major considerations in
such a compatibility process will be whether SA licensors would feel that
their expectations are being upheld by the other license.]


>
> Beyond the basic risk of potentially undermining copyleft here, this
> path would potentially open the door to future adaptations being lost
> completely to the public when courts agree with copyright holders that
> it would be unconscionable to uphold a blind license. (E.g. citing
> from contract law: "One party cannot unilaterally modify a contract
> without the consent of the other party" Union Pac v. Chi., Milwaukee,
> St. Paul & Pacific R.R. 549 F.2d 114 (1976)), and due to an
> irreconcilable difference between the adapting party and the original
> licensors the adaption is deemed an unlawful copyright infringement.
> (Keep in mind: Copyleft can not force you to free a work, it can just
> make you guilty of copyright infringement and liable for damages if
> you fail to.)
>
> Is anyone aware of a single piece of US (or international) case law
> supporting an argument that unspecified terms, with unspecified
> boundaries, written at potentially a later date, by an unspecified
> third party with no relationship to the licensor, with no evidence of
> actual intent by the licensor (it's buried in cryptic text down in the
> middle of the license unlike an intentional upgrade statement applied
> deliberately by some authors in software), which contradict the terms
> of the licensor's original agreement (required for this change to do
> anything at all), and used without any clear consideration to the
> licensor, were held to be a valid license?
>
> I will gladly take a very large bet on no such case law existing or
> ever existing, because this defies the senses.
>
> In Creative Commons' capacity as legal experts acting in the best
> interests of licensors (and other parties), I would hope that you
> would advise me—if I were your client in a one time negotiation—not to
> agree to such a open ended license. I think asking this kind of
> question from the hypothetical perspective of each of the interested
> parties (licensors, the public, service providers, etc.) should
> generally be one of the most important tests for license terms.
>

We know of no case law specifically upholding an upgrade clause, but
certainly many established open source licenses include variations of them.
(e.g., GPL v3) It was not our intent to bury this provision. We included it
in Section 2(a)(5) because it seemed to fit most logically with the other
provisions relating to downstream use. The goal is to make it as clear as
possible, and we certainly welcome any and all ideas about how to do so.

I should note that one of the most important goals of this public
discussion (on this list and our affiliate list) is to get more feedback
from legal experts about whether this provision as written is likely to be
legally enforceable. A second important goal is to get feedback on whether
it is the right decision as a policy matter, even assuming it is legally
sound. More feedback welcome and encouraged.

Thanks,
Sarah

[FN] Sometimes it is possible to separate the original work from an
adaptation. For example, where the adaptation results from synching a song
to a moving image.
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