Development of Creative Commons licenses

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

I made edits to the link below.

The biggest conceptual issue is that, under the CC, "commercial" use is
defined in terms of the "intent" or "direction" of the licensee, and not in
terms of the impact on the licensor.  Meaning, for example, a work can be
used in a manner which is not intended or directed for "commercial
advantage" but which, nevertheless, has a negative commercial impact on the
licensor.  In many of the examples in the link below, there is no commercial
intent, but there is a negative impact to the market for the particular
work.

Also, note that a licensee could intend or direct no commercial benefit, but
still receive a commercial benefit (i.e., the key issue is "intent" or
"direction" and not the outcome).


>From the CC-NC:
[You may not exercise any of the rights granted to You in Section 3 above in
any manner that is primarily intended for or directed toward commercial
advantage or private monetary compensation. The exchange of the Work for
other copyrighted works by means of digital file-sharing or otherwise shall
not be considered to be intended for or directed toward commercial advantage
or private monetary compensation, provided there is no payment of any
monetary compensation in connection with the exchange of copyrighted works.]


----- Original Message ----- 
From: "Sincaglia, Nicolas" <nsincaglia AT musicnow.com>
To: "Discussion on the Creative Commons license drafts"
<cc-licenses AT lists.ibiblio.org>
Sent: Thursday, May 26, 2005 11:15 AM
Subject: RE: Draft License 2.5 - Now open for discussion


Matt,
Here is a list of scenarios that were discussed a couple of
weeks back. A consensus was never reach on many of the items on the list
. Maybe you could take a look at this list and give your opinions based
on your understanding of the license terms.

http://wiki.creativecommons.org/wiki/NonCommercial_use_cases

Nick



-----Original Message-----
From: Matt Burrows [mailto:mburrows2 AT earthlink.net]
Sent: Thursday, May 26, 2005 11:46 AM
To: Discussion on the Creative Commons license drafts;
email AT greglondon.com
Subject: Re: Draft License 2.5 - Now open for discussion

Re the definition of NC, it is a fairly generic term which, in an
agreement,
is sometimes left as is (as "non commercial") or is further defined
within
the agreement (e.g., by way of a laundry list of what is / isn't
allowed).
Also, some state statutes define it w/ in the context of a particular
law.

In the case of CC, it has been defined in the Legal Code.  If there are
disputes re the meaning of "commercial advantage" as used within the
Legal
Code, it would be resolve by a third party (e.g., a court) within the
context of this definition (i.e., not to include situations where the
work
is exchanged for other works).  I think the current language is
sufficiently
clear (though, I could see new scenarios for compensation down the road
which may warrant further defining NC).


> > Doesn't noncommercial's weirdness comes from noncommercial being a
> > phrase with a particular legal meaning? "Technological Measures" has
> > a particular meaning from the DMCA IIRC, and the licenses are clear
> > about what Technological Measures may not apply to.
>
> If it has such a legal meaning, perhaps someone could point us to the
> particular explanations.




----- Original Message ----- 
From: "drew Roberts" <zotz AT 100jamz.com>
To: "Discussion on the Creative Commons license drafts"
<cc-licenses AT lists.ibiblio.org>
Sent: Wednesday, May 25, 2005 4:57 PM
Subject: Re: Draft License 2.5 - Now open for discussion


> On Wednesday 25 May 2005 05:44 pm, Rob Myers wrote:
> > On 25 May 2005, at 18:47, Greg London wrote:
> > > For a license that allows proprietary forks,
> > > what's the point of demanding the original
> > > must be transmitted "in the clear"?
> >
> > It ensures that proprietary forks can always be made?
> >
> > > Anyone who wants to get around it will
> > > simply create a derivative, fork it
> > > to all rights reserved, give attribution
> > > to Alice, and transmit it via DRM.
> >
> > This is true, but in abstract at least forking is different from
mere
> > distribution (or collective works/aggregation).
> >
> > I agree that it sounds strange, and I may well be wrong but consider
> > the license terms:
> >
> > "You may not distribute, publicly display, publicly perform, or
> > publicly digitally perform the Work with any technological measures
> > that control access or use of the Work in a manner inconsistent with
> > the terms of this License Agreement."
> >
> > I read this as:
> >
> > may not distribute...the [original, and only the original] work
> > with...technological measures
> >
> > This seems to say that you cannot interfere with anyone's ability to
> > use the *original* work by DRM-ing it. So I do believe that if you
> > are distributing the original work unaltered, this clause of the
> > license would stand.
> >
> > But 4a seems to cover the original work *only*.
>
> "If You create a Derivative Work, upon notice from any Licensor You
must,
to
> the extent practicable, remove from the Derivative Work any reference
to
such
> Licensor or the Original Author, as requested."
>
> That quote is part of 4a and mentions derivative works. I am saying
you
actual
> point is affected by that part though it may be.
>
> > Are the parts of the
> > original work in the derivative work still covered by the terms
> > covering the original work? Would the derived work be able to DRM
the
> > parts of the original BY-SA work that it includes without breaking
> > that clause by virtue of their being actually part of a new
> > derivative work?
> >
> > > For CC-SA works, allowing dual-format would kill
> > > any share-alike benefit. Anyone who wanted to
> > > compete against the share-alike project could
> > > get around the sharealike license via DRM
> > > and make the original available in a filing cabinet.
> >
> > Absolutely.
> >
> > > For CC-SA, the work and the license must be atomic.
> > > and by atomic I mean from the Greek word 'atomos'
> > > meaning 'indivisible'. The work must always satisfy
> > > the license. If Bob transmits the work via DRM,
> > > it must give Charlie a version of the work that
> > > is free and clear of any Rights Restrictions.
> >
> > Welllll. If there was a DRM "tunnel" that spat out a clear version
of
> > the work at the other end, that might be different, it might not, I
> > don't know.
>
> An ssh tunnel is just such a beast. Speak Freely is another.
>
> http://www.speakfreely.org/
>
> So, you can make an encrypted internet phone call and read a CC BY
work to
the
> person at the other end. (I think. Anyone see it differently?)
>
> >
> > As an aside, I can't particularly read TCP packets without
> > technological assistance, so a novel sent to me over TCP and then
> > stored on hard disk isn't particularly easy for me to read. But that
> > distribution mechanism is not specifically designed to prevent me
> > from reading the work as transmitted without further measures,
> > encrypting the work is.
> >
> > > If users are allowed to split this atom,
> >
> > That really is the nuclear option. ;-)
> >
> > > then you
> > > get the GPL problems of "binary" versus "source",
> > > and the CC licenses have no terms to handle the
> > > differences between these two versions.
> >
> > Yes. And as I mentioned earlier it's important that no-one confuse
> > "in the clear" (or FDL-style "transparent") with source.
>
> Would anyone like to start a discussion of the merits of requiring
"source"
> for certain CC works?
> >
> > > This is the way the CC-SA license needs to be.
> > > I'm not entirely sure that it does this.
> > > I think it does. But then I thought CC-NC
> > > meant no monetary exchange, regardless of profit,
> > > so I'm no longer sure.
> >
> > Doesn't noncommercial's weirdness comes from noncommercial being a
> > phrase with a particular legal meaning? "Technological Measures" has
> > a particular meaning from the DMCA IIRC, and the licenses are clear
> > about what Technological Measures may not apply to.
>
> If it has such a legal meaning, perhaps someone could point us to the
> particular explanations.
> >
> > I'm very, very, *very* pleased at CC's recent appointments and the
> > commitment that Lessig's blog has mentioned to improving CC's
> > educational and explanatory role. Hopefully we won't be able to
> > misunderstand any of the licenses like this for much longer. :-)
>
> Let's hope so.
> >
> > - Rob.
> > _______________________________________________
> > cc-licenses mailing list
> > cc-licenses AT lists.ibiblio.org
> > http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>
> all the best,
>
> drew
> -- 
> http://www.archive.org/search.php?query=creator%3A%22drew%20Roberts%22
> _______________________________________________
> cc-licenses mailing list
> cc-licenses AT lists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>

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