Development of Creative Commons licenses

["David Christie" <dc AT samizdat.org>]

I've been lurking on this list for a while and reading the archives. This is 
my first post. I'm primarily interested in innovative open-source software 
licenses.

Has anyone here been involved in discussions of an alternative to the CC 
Non-commercial license, analogous to the way Share-alike is an alternative 
to No-derivatives?

I'm thinking of something like "Share-revenues", designed to (a) grant 
commercial rights, but (b) oblige commercial users to share part of their 
revenue with the copyright holder.

Please point me at any discussions or innovative licenses that may relate to 
this.

The devil is always in the details, so I will explain how I think such a 
license could work, for anyone interested. IANAL. I write "west coast code" 
not "east coast code".

The basic principle is that the copyright holder grants the right to 
commercial use, but is entitled to a per centage of the revenues thereof. In 
the absence of an additional contract between copyright holder and licensee, 
this right is for some fixed per centage of licensee's gross revenues --  
say, 10% of everything earned using the copyrighted material. (The 10% is 
fairly arbitrary as you will see, and open to debate; perhaps even the use 
of a specific per centage is not the best approach; IANAL.)

This will be controversial, but I suggest a license that claims a per 
centage not merely of direct revenues from the copyrighted work, advertising 
that it hosts, etc., but of all the licensee's gross earnings facilitated in 
any way by use of the copyrighted material. This is nearly punitive, and 
deliberately so. (If you run my software to power your corporate web site, 
am I entitled to 10% of your entire corporate revenue?) But in practice it 
means we can ignore the details of how such revenue would be measured and 
reported, especially the difficulty of determining what per centage of the 
customer's revenue is "facilitated" by using the software (or other work), 
because in practice, 10% of gross revenues is unacceptable. It is much more 
than most customers can afford, and far too much to make using the work 
competitive (e.g. compared to proprietary products).

Therefore, in most cases commercial users and copyright holders will 
negotiate a separate commercial contract specific to the customer's use and 
their respective business models, which defines specifically (and bounds, 
i.e. reduces) the customer's obligations under the revenue requirement of 
the license. Such contracts may be crafted specifically for each 
relationship, and their terms may vary. They are not software licenses per 
se but contracts bearing on the agreed interpretation of the 
"Share-revenues" provision of the license. They are not an alternative 
license (this is not a dual-licensing scheme).

Absent such a contract, the license is written to give the copyright holder 
as much leverage in court as possible to garnish up to 10% the licensee's 
gross revenues (or at least that fraction of it facilitated in any way by 
the use of the copyrighted work). The contract specifically gives up these 
punitive rights, replacing them with something more acceptable. Thus 
"Share-revenues" defaults to something much like "Non-commercial", in 
practice, in the absence of a separate commercial contract between vendor 
and customer. [Honestly, I've no idea if such a license provision could be 
enforced without at least a click-thru license, and we don't want those; 
that's one of many issues for a lawyer to work on.]

The point is to have the "Share-revenues" license punt on specifying an 
actual commercial contract that stipulates exactly how revenues are to be 
shared. A commons license cannot specify such arrangements and still be 
one-size-fits-all. The freedom to engage in an endless variety of commercial 
relationships is what free markets (supposedly) guarantee; the license 
should not constrain that. Also the commons license should not require user 
acceptance (by click-thru or other means), while the revenue-sharing 
contract would no doubt require both parties to sign it.

I would also like to see "Share-revenues" mean "from any compensation", 
rather than exempting non-profit organizations/uses entirely as CC 
Non-commercial (apparently) does. This is another reason why I suggest 
basing it on gross revenues. The rationale is that the ability to contract 
the revenue sharing model should be preserved in all relationships, 
including those between the copyright holder and non-profits that earn 
revenue from the use of the work, tax-supported organizations such as 
governments, etc. The copyright holder is free to grant special contracts to 
such customers, even at 0% revenue recovery if he likes.

One final point: unlike dual-license schemes which make the work available 
to paying customers on one set of terms, and to non-commercial users on 
another, "Share-revenues" is egalitarian: it would be a provision of a 
single commons license available to everyone. Only the separate revenue 
sharing contracts would vary. Thus, commercial and non-commercial users 
would have the same rights and responsibilities. For example, commercial 
users as well as non-commercial would be bound by "Share-alike", if it was 
part of the license. [Nothing here prevents the copyright holder from also 
using dual-licensing, for example to exempt some commercial users from 
Share-alike, but it is not required.]

I'm sure this idea could be improved, but you see where I'm going with it no 
doubt.

I'm also interested in other ideas in this vein.