Development of Creative Commons licenses

["Sincaglia, Nicolas" <nsincaglia AT musicnow.com>]

Serge,
 
I think you are looking at these licenses from a similar perspective as I 
have been lately. On the surface the CC licenses are very innovative and 
exciting. They make it appear that the creative community can by-pass much of 
the legal complexities of the world and just move on and allow creative 
people to further create. But as I start to think in more detail about 
practical business considerations and managing ones own liability, it occurs 
to me that the CC license still lives in the "all rights reserved" legal 
environment and it really does not help anyone by-pass any of the legal 
complexities. Let me explain.
 
If you would like to distribute any CC work for commercial use, you as a 
distributor are taking on an equal amount of legal risk as the original 
creator. How do you know the person who posted the creative work really is 
the rightful owner of that work? I personally have found people posting major 
label artists on sites intended for CC licensed work. I was able to recognize 
those artists because they are fairly popular American artists. It sort of 
scared me because it occurred to me that I might not recognize a fairly 
popular French or German artist and think the track they posted was really 
licensed under a CC license. If I were to take that work and incorporate it 
into another work and distribute it, I would be 100% liable for illegally 
distributing someone else's copyrightable work. It doesn't matter that I was 
defrauded by the poster of that work. This is also the case if someone 
licensed you a copyright work that they did not own but at least in that case 
you could point to a signed contract and show that the person who licensed it 
to you was a scam artist. You can't really do that with CC licenses. It will 
be hard to find the person who posted that file illegally.
 
This is also the case with sampling. I have downloaded content under the CC 
license that clearly has illegally sampled content in it. No where in the 
content posting does it indicate that uncleared samples were used in the 
making of this material. The poster either is not familiar with the current 
sampling laws or does not care. Frankly, it does not matter to the 
distributor. If you distribute this content and the original copyright owner 
finds out that their work was illegally sampled they will come after the 
distributor of the content. The distributor is as liable as the creator in 
the use of these uncleared samples.
 
Another practical business problem I see with the CC license is the No DRM 
restriction. I understand why the restriction is in the license but from a 
practical business perspective this restriction really limits ones ability to 
market and distribute CC licensed content. If I wanted to use a CC licensed 
piece of content on a project with other non CC licensed content, I could not 
distribute the work in its entirety using common distribution methods. Non CC 
licensed content owners may insist on protecting their content with DRM or 
encryption but it would be a violation of the CC license to do so. So 
distribution methods such as encrypted DVDs, digital distribution through 
commercial sites such as iTunes, digital satellite broadcasts, digital radio 
broadcasts or even ringtones or ringtunes will violate the CC licenses. As a 
business person, I see this as a problem because with any business success I 
achieve through distribution, new distribution opportunities will present 
themselves using distribution methods that were built around encryption and 
DRM and it will limit how successful a project can be.
 
So I would like to stress that the above examples are not a problem with the 
CC license itself. I am still a big fan of the Creative Commons. I think what 
they are doing is still very innovative but I now recognize that it has its 
limits from a commercial perspective. The CC licenses allow people with small 
projects and limited distribution to move forward with their plans. If you 
have loftier goals, it is just too risky and limiting to use only CC 
licenses. You need to delve in to the legal complexities of copyright law and 
negotiate the old fashion way for the license to use and distribute the work 
and indemnify yourself as much as legally possible.
 
So in your examples, I would suggest you contact the owners and try to 
negotiate with them to have all the licenses reflect the restrictions you 
will require for your project. I don't see any other way.
 
Nick
 
-----Original Message----- 
From: Serge Wroclawski [mailto:serge AT tux.org] 
Sent: Sun 5/1/2005 6:42 AM 
To: Discussion on the Creative Commons license drafts 
Cc: 
Subject: Re: Confusion over conflicting licenses



        On Sun, 1 May 2005, Greg London wrote:
        
        > CC is about a spectrum of licenses from gift economy
        > to market economy, from sharealike to noderivatives,
        > from publicdomain to noncommercial. And each of those
        > uses has different requirements, therefore different
        > licenses, some of which are incompatible with other
        > licenses, and incompatible with the wishes of downstream
        > authors.
        
        CC is an enabler to moving away from the standard All Rights Reserved 
to
        allowing work to be used differently and shared.
        
        Every time I've gone to one of the people whose work I want to use and
        said what I wanted to do, they've all said "Oh, go ahead and so 
that.", to
        which I've sometimes responded "Why don't you change the license to be
        less restrictive and then I wouldn't have to ask."
        
        One licensee actually flaunts a huge license violation on his web 
site. He
        has a ShareAlike license and then says that his work was used by a
        television show. Of course the television show isn't ShareAlike.
        
        People, especially software-esque people would have a tendancy to 
want to
        use ShareAlike.
        
        People who think "I'd sure like to get paid for a commercial use of my
        work" would think Non-Commercial.
        
        I don't have a direct problem with the licenses, only that choosing 
the
        license may not realize that putting extra restrictions on will have
        unforseen consequences. This is something we can make more clear to
        people.
        
        - Serge Wroclawski
        
        _______________________________________________
        cc-licenses mailing list
        cc-licenses AT lists.ibiblio.org
        http://lists.ibiblio.org/mailman/listinfo/cc-licenses