Development of Creative Commons licenses

["Matt Burrows" <mburrows2 AT earthlink.net>]

Comments in CAPS below.

----- Original Message ----- 
From: "drew Roberts" <zotz AT 100jamz.com>
To: "Matt Burrows" <mburrows2 AT earthlink.net>
Cc: "Discussion on the Creative Commons license drafts"
<cc-licenses AT lists.ibiblio.org>
Sent: Wednesday, May 25, 2005 4:16 AM
Subject: Re: Draft License 2.5 - Now open for discussion


> On Wednesday 25 May 2005 12:58 am, you wrote:
> > It's important as a matter of practicality and efficiency.
> >
> > If a licensee has an exclusive agreement with Real, etc. which requires
use
> > of only encumbered media, then, according to the CC license, that
licensee
> > would not be able to use the work in question (under the CC license).
> >
> > In order to accommodate this, I proposed an out - i.e., if an exclusive
> > deal exists, then that would be an exception.  I would raise this to the
> > level of "important" in anticipation (a hunch)  that there are/will be a
> > significant amount of encumbered media which would otherwise not be able
to
> > use works per the CC license at issue.  If my hunch is wrong, fine, then
> > the argument drops out.  If my hunch is right, then the CC license
should
> > address it and try to work around this as much as possible - in order to
> > remain inclusive.
>
> Let's assume they are streaming audio (music) in real format for a second.
(As
> in a radio station or whatever.) They must be streaming something as they
> have an existing exclusive deal.
>
> The CC licenses, even the NC ones, would not stop them from putting our CC
> licensed work in their streams. They just opt to use the statutory license
> instead of the CC license and away they go.  [AGREED, THOUGH THE WORK
WOULD NOT BE LICENSED UNDER CC IN THIS INSTANCE]
> >
> > Re abuse, it really becomes a factual matter (which, ultimately, would
need
> > to be decided by a third party - e.g., a court).  The question would be
> > simply whether, at the time of the use, the licensee was subject to an
> > agreement which required them to exclusively use a certain media (e.g.,
> > Real) to the exclusion of all other media.  As a practical matter, would
> > something like this be litigated? - doubtful.  This, therefore, could
> > increase likelihood of abuse (as you suggest).    Then again, the same
> > could be said of other portions of the CC license.  The risk of abuse,
IMO,
> > is outweighed by the benefit of encouraging CC licensing involving
> > encumbered media.
>
> So, you have sort of addressed the first point, but not given any
> suggestions/ideas as to how you might word such an idea to help prevent
> abuse.

[THERE ARE WAYS TO ADDRESS THIS - BUT WOULD NOT BE EFFICIENT.  EG, HAVE A
STRONG REMEDIES PROVISION INCLUDING ATTORNEYS' FEES.  ANOTHER IDEA IS TO
HAVE THE LICENSEE EXPRESSLY WARRANT THAT THEY ARE SUBJECT TO AN EXCLUSIVE
THIRD PARTY DEAL, AND PUT ALL OF THIS IN BOLD AND IN CAPS - FOR EMPHASIS.
STILL, I ACKNOWLEDGE THAT THESE WORDS BY THEMSELVES WILL NOT PREVENT A
LICENSEE FROM "ABUSING" THE OUT CLAUSE.  THAT IS A RISK HERE.

NOTE - I DONT CONSIDER THE ABOVE POTENTIAL ABUSE TO BE A SIGNIFICANT ISSUE
HERE.  THERE ARE OTHER WAYS FOR ABUSE ALREADY INHERENT IN THE LICENSE FORMAT
ITSELF - EG,  IT DOES NOT REQUIRE A SIGNATURE, A PARTY COULD CLAIM THEY DID
NOT HAVE AN ATTORNEY REVIEW THE LICENSE AND, THEREFORE, DID NOT FULLY
CONSENT TO ITS TERMS, THE LICENSE WAS "TAKE IT OR LEAVE IT" AND NOT FREELY
NEGOTIATED, ETC.  THESE ARE ALL POTENTIAL OUTS WHICH WE LIVE WITH FOR THE
SAKE OF PRACTICALITY AND EFFICIENCY.]
>
> Here is my new company:
>
> CC Avoidance Inc. [WILL CHECK IT OUT]
>
> Don't wan't to abide by the DRM clause in CC licenses? Come to us for full
> service avoidance packages. We can sign you up to an exclusive deal to use
> DRM schemes in a wide variety of formats and with a wide variety of
options
> so thet you can take advantage of the exclusive deal exception in the CC
> licenses. Our rates are the best in town.
>
>
> Christian said it well:
>
> "Either we believe that the idea of CC is strong enough to
> make the world around it change, like open source software have, or we
> don't."
>
> One of my goals with CC is to (like the GPL's goal) build a (community)
body
> of work (I don't expect I can create that much all on my own) that is so
> enticing that people will find it in their economic interests to give up
> non-Free (copyleft) ways of operating in order to take advantage of the
Free
> (copyleft) pool.
>
> So, I think that, at least for the SA licenses, this exception is a bad
idea.
> I would rather my works not be used, except for statutory licenses, or
> negotiated licenses, than to let this exception be abused with respect to
my
> work.  [I ACKNOWLEDGE YOUR CONCERN.  RE ABUSE, I STILL DONT HAVE A READ ON
THE "LEVEL" OF ABUSE - I WOULD SIMPLY BE SPECULATING HERE]
>
> all the best,
>
> drew
> >
> >
> > ----- Original Message -----
> > From: "drew Roberts" <zotz AT 100jamz.com>
> > To: "Matt Burrows" <mburrows2 AT earthlink.net>; "Discussion on the
Creative
> > Commons license drafts" <cc-licenses AT lists.ibiblio.org>
> > Sent: Tuesday, May 24, 2005 6:06 PM
> > Subject: Re: Draft License 2.5 - Now open for discussion
> >
> > > On Tuesday 24 May 2005 07:47 pm, Matt Burrows wrote:
> > > > I would add to the proposal below, the concept that you are not
> > > > required
> >
> > to
> >
> > > > add the unencumbered version if prohibited by a third party
agreement
> >
> > (eg,
> >
> > > > w/ RealMedia) in existence whenever the license is exercised.   This
> >
> > would
> >
> > > > address situations where a licensee has an exclusive deal with a
third
> > > > party, such as Real.
> > >
> > > Why exactly do you think this is important, and how might you word it
to
> > > prevent abuse?
> > >
> > > all the best,
> > >
> > > drew
> > >
> > > > -----Original Message-----
> > > > From: Nathanael Nerode <neroden AT twcny.rr.com>
> > > > Sent: May 24, 2005 3:37 PM
> > > > To: cc-licenses AT lists.ibiblio.org
> > > > Subject: Draft License 2.5 - Now open for discussion
> > > >
> > > > Another thought.  As the DRM clause is currently written, it
prohibits
> > > > encumbered distribution (e.g. RealMedia).  If the DRM clause is
> >
> > rewritten
> >
> > > > so that you must provide an unencumbered version alongside every
> >
> > encumbered
> >
> > > > version, it would instead mean that, for instance, if you provided
> > > > RealMedia you would *also* have to provide Ogg.
> > > >
> > > > This might be an easier sell to the proprietary-format shops: "You
> > > > don't have to drop RealMedia, you just have to add this extra
format.
> > > > Which
> >
> > is
> >
> > > > free." This is probably a better way of getting a foot in the door,
> >
> > anyway.
> >
> > > > _______________________________________________
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> > > > cc-licenses AT lists.ibiblio.org
> > > > http://lists.ibiblio.org/mailman/listinfo/cc-licenses
> > > >
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> > >
> > > --
> > > http://www.archive.org/search.php?query=creator%3A%22drew%20Roberts%22
>
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