[cc-sampling] default rules & timidity, Part II

Don Joyce dj at webbnet.com
Sat May 31 08:21:54 EDT 2003

Right, I suppose I could define my questioning role here as one 
trying to arrive at a "workable" license in a legalistic world of 
conflicting interests that will actually contain as much of the 
spirit of the thing we want to achieve as it possibly can in that 
legalistic world of already elaborated interests.
So I guess I'm constantly out on the fringe of practical 
possibilities trying to protect that spirit (an artistic one which 
needs to define everything that becomes public as being in the public 
domain) and yes, I might even be capable of subverting existing law 
in this if possible, (that's how wrong the law is in its art regard) 
and would even more like to get the legal Fair Use concept expanded 
to include all collage arts in the public consciousness, if not the 
law, which I understand may be inviting legal self-destruction too... 
possibly, but maybe not really, if the spirit survives...

Ah well, so let's carry on, watching our parking meters, defaulting 
to third parties, and not dwelling on any close allegiance to 
existing fair use. Very glad to get such ideas in the Faq though!

I must still say this license represents, in effect and in routine 
perception, a considered expansion of present fair use rules for free 
re-use. This license is not a different kind of animal, but a child 
of fair use thinking as far as I can see, and this license will now 
exist for the very same constitutionally embedded principle as 
existing fair use does - to prevent the censorship of free speech in 
new works or other presentations that rely on cultural appropriation. 
Both are all about allowing exactly the same thing for the same 
reasons, ours attempting to be artistically aware and inclusively up 
to date where Fair Use is not yet, that's all.

Sure, this is unilaterally declaring fair use also extends to 
artistic, not just political concerns. That's what I mean by expanded.

>Cathy Kirkman said:
>"Since we are not varying the default situation under the law, it is not
>necessary to have a statement about ownership rights."  
>DJ of Negativland said in response:
>"Ok, See Cathy, I completely disagree with this advice on the grounds of
>undoubtedly harried legalistic timidity. . . . I'm thinking of this
>license as a kind of voluntary, fair use-bestowing license, directed at
>those who want to protect art's free access to art, not as a protection
>for any artist involved whenever the two interests conflict."
>A second response by me to Don, if I understand you correctly:
>We are going to have to draw lines with this license, and that means that
>it is indeed our job here to make clear who has what rights when two
>interests conflict. Simply trying to declare unilaterally a new zone of
>fair use is not really possible.  Rights as defined by contracts have
>always got to be defined vis-a-vis another party's rights. 
>Worse, using the word "fair use" to describe what we're doing is
>dangerous -- if we really care about fair use.  Creative Commons has gone
>out of its way to make clear that we're not simply trying to codify
>freedoms that copyright law (fair use, first sale) already grants the
>general public.  All our licenses start with fair use as a given, then
>build more freedoms from that baseline.  If we mix up new freedoms and
>existing fair use, even rhetorically, we invite the copyright powers that
>be to start trying to use Creative Commons as a way to roll back fair
>use. This cannot happen.
>So, I humbly request that we only refer to "fair use" in this discussion
>when we mean to make clear that our licenses will in no way effect it.
>Glenn Otis Brown
>Executive Director
>Creative Commons
>glenn at creativecommons.org
>+1.650.723.7572 (telephone)
>+1.415.336.1433 (mobile)
>cc-sampling mailing list
>cc-sampling at lists.ibiblio.org
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