Development of Creative Commons licenses

[Evan Prodromou <evan AT bad.dynu.ca>]

On Tue, 2005-22-11 at 19:58 +0100, Peter Brink wrote:
> This is an interesting question. IMO the license only applies to the 
> particular physical form of a work that has a cc-license attached to it. 
Thanks for the great description of a copyrightable work, but I think you've gone astray here. I don't think that's born out by the legal code of the licenses (all versions), which specifically notes:
>     e. "Work" means the copyrightable work of authorship offered under the terms of this License.
>     [...]
>     3. License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below:  [...]
It does not specify that the licensor only grants you that license for a particular fixed form, but for the Work. As you noted, a printed book, a PDF and an OpenDocument of the same text are fixed forms of the same work (and, in the license sense, Work).
> My reason for this line of reasoning is that the license is 
> non-exclusive, meaning that the copyright holder retains the full 
> copyright of the work; he can create more copies of the work and create 
> derivative works based on the work. He can offer these under any terms 
> he wish. If he wishes to license an MP3 version of a piece of music of 
> his under a cc-license _and_ sell a WAV version, he is free to do so. 
> The WAV file would then _not_ be available under the cc-license.
I don't think this line of reasoning is sound; the last line does not follow from the . Yes, the copyright holder has full, non-exclusive rights to the work. They can do what they wish with the work, including licensing it under another license.

But that does not make the CC license grant invalid. The license grant is for the work, not for the fixed form, and the WAV version is another form of the same work.
> It would not be fair to demand that the copyright holder would _have_ to 
> make all versions of a work available under the same license just 
> because he has chosen to license a particular physical form of that work 
> under a cc-license. 
I think it's an error on part of a copyright holder to think that the two fixed forms are different works that can be licensed differently. And it's also probably bad naming to call them two different "versions"; they are two fixed forms of the same work.

To be clear, I don't think anyone's getting their hand forced for anything. But if I buy a WAV of a song from Magnatune, I think it's entirely defensible that I use it under the terms of the license of the MP3 for the same recording.

The only way I could see the idea that an MP3 and a WAV of the same recording would be different works is if one suggested that the data compression inherent in an MP3 is an abridgement and thus a creative transformation of the work into a new Derivative Work. And I think that a smart lawyer would show that that's not the case; if the transformation is automatable and done automatically without significant creative input from a human being, I think it's hard to defend that there's enough transformation to make it a Derivative Work.

Here are some alternatives for those who insist on this model:

• CC-license live recordings of a song, and sell studio recordings
• CC-license one or two singles from an album, and sell the entire album
• CC-license all recordings and sell media like CDs or DVDs

In practice, the Magnatune model is probably fine for making money. After all, nobody wants to file-share huge fat WAV files, anyways. So if I pay for a WAV file, I'm either going to a) compress it to an Ogg Vorbis or MP3 file or b) give away CDs. Either way, no big loss for Magnatune.

Creative Commons has consistently bypassed any suggestions from copyright holders to add license elements to limit the form that licensees can cast the work into. I don't think that expecting this kind of differentiation (MP3 vs. WAV)

~Evan