Development of Creative Commons licenses

[Evan Prodromou <evan AT wikitravel.org>]

>>>>> "e" == email  <email AT greglondon.com> writes:

    e> I've yet to find any good explanation on how indemnification
    e> and other proposed new additions would change the situation in
    e> any significant way and still support the Gift Economy.

(I am not a lawyer, this is not legal advice, I don't speak for
Creative Commons.)

The idea is that by releasing a work under a Creative Commons license
you also assert that the licensee will be able to exercise those
rights. If you can't assert that, then you shouldn't release it.

The idea comes from traditional publishing contracts. When you sell a
book to a publisher, or a record to a record label, or a photograph to
a magazine, part of the contract you sign is (usually) that the work
has its rights cleared. In other words, you're not plagiarizing,
you're not using someone's image without getting a model release,
you're not libelling someone, etc., etc.

If it turns out that you did copy someone else's work without
permission (or abuse privacy rights, or libel someone, or whatever),
and that person sues your publisher/label/magazine, the
publisher/label/magazine can turn around and sue you.

Releasing a work under an Open Content license is kind of like making
an agreement with every single publisher in the entire world.

It's tempting to say, "Well, screw publishers! Those fat cats can pay
for a lawsuit better than poor ol' artists can." But the fact is that
publishers of Open Content are little guys -- people sharing files on
a p2p network, or mirroring a book on their personal Web site, or
using Open Content clip art in their club newsletter.

Not only that, but people like our friend Sarah can't really afford to
hire entertainment lawyers to make sure that each and every MP3 she's
sharing has had all the rights for each sample cleared. The artist who
created the music can, though. By warranting and/or representing that
the work really is redistributable, the artist makes it easier for
Sarah to share the file with her friends (without getting her uptight
mom all cranky).

Will having a warranty keep Sarah from getting sued? No, it
won't. Anybody can sue anybody for anything at any time. It won't even
keep Sarah from having to pay damages to the person who owns the
rights to the samples. What it does allow is Sarah to sue the artist
in turn to cover her costs and damages.

The idea here is not to generate more lawsuits. The idea is to put the
responsibility for making works redistributable in the hands of
the people most able to do that: the artists who create them.

There are warranties to this effect in all the 1.0 versions of the
Creative Commons licenses. However, there was some backlash against
this. Two major groups of creators are in the habit of using
copyrighted work without permission: small-time electronic music
producers who tend not to clear rights to their samples, and bloggers,
who tend to just copy long excerpts or entire articles from
newspapers. Having warranties made it hard for these people to release
their work (*cough cough*) under CC licenses.

(It is particularly hard for bloggers, since most just have the Some
Rights Reserved logo on their blog page somewhere, and don't want to
specify whether the picture in today's blog entry is really their own
work available for free, or something they copied from Fark.)

People who write and record their own music, or write fiction and
reference manuals, or take photographs, or make movies, usually don't
have to worry about this stuff. It's more "remixers" who tend to have
concerns with these warranties. (People who remix other Open Content
works that have a warranty provision in the license don't worry,
though: after all, they've got a warranty that says they can reuse the
work!)

The other, less savory argument about warranties was that releasing
something as Open Content is like throwing out your trash. You just
give away the crap you don't want or need. After all, if it was worth
anything, you'd sell it for a profit, right? So you shouldn't be held
responsible for the quality or publishability of that work. It's just
pocket lint. If somebody can use it, fine; if not, well, don't come
crying to me.

Personally, I hate this argument. If somebody wants to release their
lame leftovers as Open Content, fine. Great. But don't call my work
shit just because it's Open Content, and don't try to drag down all
Free Culture to the level of their low expectations.

Anyways, that's my take. Artists should take responsibility for the
publishability of their work because they are the ones with the most
power to make it publishable.

~ESP

-- 
Evan Prodromou <evan AT wikitravel.org>
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