Developer discussion for Creative Commons technology and tools

[Engel Nyst <engel.nyst AT gmail.com>]

Thank you for asking for feedback on this intention. Several quick
thoughts, apart from the barriers to contributions already mentioned
here, follow.

On 12/10/2014 11:21 AM, Matt Lee wrote:
> Regarding the contributor agreement:
>
> As we're already dealing with outside contributions on this app, and
> given my limited resources at CC, I don't want to worry about being
> unable to release the app, or worse, being unable to release the app
> under a free license.


Is this saying that if you receive a free license from authors (not a
CLA/CA), then you feel unable to distribute it further under their free
license?

I'm sure you can't mean that. But then, what do you mean? You are
perfectly able to release under the free license granted by authors to
you and anyone else. (with or-later, you can also upgrade it)

> I signed a very similar document with the Free Software Foundation
> about 8 years ago and it has been extremely easy to contribute to a
> lot of free software since then. In fact, it has been my job for
> most of that time.


Ah, well, this sounds like the power of habit or example. For the
record, I don't entirely blame the FSF considering the historical
context in which their copyright assignment started, but I do believe
it's a bad idea to continue it as they do today and give the false
impression to people that there's something like 'good practice' about
copyright accumulation. People and projects follow it (or think they do)
without actually being sure why, and harm their project in the process. IME.

I would note that to the best of my knowledge FSF is among the
exceptions, not the rule, within freely licenses projects, and they're
released freely licensed and without problems for that. You don't need
CLAs or assignments in order to freely license.

In addition, even FSF doesn't ask for assignment for all projects, only
some who started that way many years ago. They don't seem 'unable to
release under a free license' the others, just because they received a
free license from authors and not copyright.

I would suggest to reconsider your choice on agreements like this.

> As a small team with few resources, we need to be able to keep all
> our work public and freely licensed, and this is a legal hack to do
> just that.



Is this saying that if you receive the work of authors from the
community publicly and freely licensed, then you can't 'keep' it public
and freely licensed?

Again, that can't possibly be the meaning, but it is the message I
believe CC would be sending out with this agreement.

All you need is a free license from authors. Not copyright.

> Projects that don't have such an agreement in place are effectively
> stuck on a particular license for the rest of time. That's a
> situation I'd like to avoid.



That's an understandable reason, but it has solutions, other than
copyright assignment. Apart from what was said here already (you can
just use AGPLv3 or later), look at it the other way around too: maybe
keeping the license they chose (i.e. AGPLv3 or AGPLv3+) will be exactly
what authors want. Relicensing might be a wanted or unwanted thing, and
you don't know unless you ask the community anyway before you do it - if
you ever will in the future.

On the agreement itself, a few notes:

> This Tech Contributor Agreement is intended to ensure that Creative
> Commons and its developer community can work together to build
> software supporting the mission of Creative Commons that can be
> freely reused.



This goal doesn't require any copyright assignment or any CLAs.
Developer communities work together fine under a free license, nothing
in adding "CLA" has anything to do with it.

> The intention of CC and You is that this document will be
> supplemented rarely, if at all, by other documents, but You agree to
> execute any additional documents necessary to perfect, evidence, or
> otherwise document this assignment and waiver.



CC seems to be asking here for blanket agreement to unknown terms,
before people even know about them.

Individuals who feel uncertain of their legal knowledge might let this
phrase pass under their radar, as assumed legalese, while companies
would never agree to this. I don't see how any of these two is a good thing.

> In exchange, Creative Commons agrees to apply only GPL-compatible
> copyleft licenses to Your Original Contributions and any works owned
> by Creative Commons that are based on Your Contributions.



I'm sure you intend this to be correct, but given the blanket agreement
above to any supplements to this agreement, it seems to me this can be
overridden by a future document. (please see also below on termination)

> You warrant that You are the sole copyright owner of Your Original
> Contributions, and Your Original Contributions do not violate the
> copyright or other legal rights of any person or entity, including
> Your employer or academic institution.



If you license your work under a free license, you obviously can license
it in the first place. Otherwise you couldn't. Nothing in this clause is
necessary.

> You further warrant that, to the best of Your knowledge, Your
> Original Contributions do not violate the patent rights of any person
> or entity.



If you license your work under a free license, you obviously do it
because to the best of your knowledge, you are not prevented from giving
those rights to everyone. This clause achieves nothing significant in
addition.

> You agree to hold Creative Commons harmless for any damages arising
> from a breach of this warranty by You.



Why? If you, a random author, are told you infringed copyright or patent
rights by releasing a work under a free license, you surely have bigger
problems than this contractual clause, but it also only adds to your
problems. Conversely, for CC, as far as I am aware, there are already
legal means for those who believed your license (i.e. CC entity or
anyone else who copies/reuses that code) to point to you.

What this seems to achieve in practice is (extra) CYA for CC, while
placing more blame (and risk) than already there on individual authors 
who happen to bump over a patent they had no idea about.

> If You want to contribute Code or Content created by someone other
> than You ("Third Party Code" and/or "Third Party Content"), You must
> agree to and comply with the following requirements.


Why do you "must"? This achieves nothing. You don't need to agree and
sign (in blood or ink), in order for anything of the following to happen:

> Contributions of Third Party Code will be accepted on a case-by-case
> basis in CC's sole discretion


This is true of any free project (and many non-free) without the need to
execute an agreement. I haven't seen any free project who "is forced
legally" to accept a piece of code, and they "must" make you sign that
they're not forced. Has anyone? :)

> You may only submit Third Party Code for consideration if it is
> available under one of the licenses on this list,


That's fine, but it's a matter of project policy, not a copyright
assignment matter. A simple informative note in the repository "hey, we
only accept these licenses" is all it does and needs. Not a contract,
not a signed contract, and surely not a copyright assignment contract.

> Regardless of whether the license on the Third Party Code or Third
> Party Content requires such information to be retained, You must
> prominently mark it to identify its source, its author, and its
> licensing information.


If the license requires it, you obviously will keep it. If the license
doesn't, most keep it and/or tell you where it comes from. They don't
need to sign an agreement that they will do so, you can just ask them
where does it come from anytime you feel necessary. Reject it, if you
don't feel comfortable with it or its history.

> By contributing Third Party Code and/or Third Party Content, You
> warrant that You have the right to contribute it to The List Project
> under these terms, and that, to the best of Your knowledge, the
> contribution does not violate the copyright, patent, or other legal
> rights of any person or entity.


If you distribute freely licensed code or content, which is what CC
accepts according to the above license list, then obviously you have the
right to distribute it. It's freely licensed.

An extra-warranty from your part, that you can distribute freely
licensed works, adds nothing. Or perhaps it only adds confusion if the
free license does indeed... allow you to copy it and reuse it in a
project.


Please note that almost all free licenses explicitly disclaim ALL
warranties, to the extent of applicable law. What this agreement does,
is to add additional burden to authors in the form of warranties CC
wants from them. Why?

If warranties are necessary legally for an entity to be safe in using
freely licensed code or content, then CC, FSF, OSI, Mozilla, and other
entities creating or approving licenses (as safe!) should fix their
licenses.

If they are not necessary legally, then another way of saying it is this
is adding burden to authors unnecessarily.

> If You become aware of any information or circumstance that affects
> Your ability to comply with Your obligations under this Tech
> Contributor Agreement, such as learning that Third Party Code You
> contributed may infringe the rights of another individual or entity,
> You are obligated to inform Creative Commons promptly by sending an
> email



Why are you obligated by a contractual clause? Obviously if you become
aware of infringement, you'd better try to fix it everywhere, and people
do that - freely, not obligated. But if that happens, as noted before,
you probably have bigger problems, to which another contract, like this
one, adds nothing helpful.

> If You no longer wish to participate under the terms of this Tech
> Contributor Agreement for any reason, You may stop making
> contributions at any time.



This phrase does nothing. People stop contributing to projects at any
time, and they don't need to sign over that the project allows them to.

> Similarly, Creative Commons may terminate this Agreement with You at
> any time, for any reason.



I'm not sure, this seems to say that CC can very well no longer fulfill
its promises to you - i.e. to copyleft your works.

I don't think that was the intention, but it says that; nothing here
says that the section on CC licensing as GPL compatible copyleft
survives termination. Anyway, that's not intended by CC, I'm sure, and
therefore not my biggest concern: but if that doesn't happen, then this
clause is again useless, just repeating something we all know.
People stop contributing to projects, and projects don't use every
submission or no longer use it. Nothing in these actions or non-actions
requires a CLA.

> You may not withdraw Your Original Contributions.



If your work is freely licensed, of course you can't withdraw it. By
definition, and by the text of every free license. This clause does
nothing, or worse, it makes some people think (really) that there must
be some reason why legal departments must need to make sure, by
imposing contractual terms, that a free license can't be withdrawn.


TL;DR: I strongly believe this agreement is the wrong step to do for CC,
you don't need it, potential authors from the community surely don't
need it, and it can only help CC and individuals out there if you don't
do useless copyright contracts that, in effect, only throw doubt over
free licensing. Please reconsider.


--
"Excuse me, Professor Lessig, may I ask you to sign this CLA, so we can
*legally* have your permission to distribute your CC-licensed works?"
 ~ Permission culture, step two.