Development of Creative Commons licenses

[wiki_tomos <wiki_tomos AT inter7.jp>]

drew Roberts wrote:

>I make a work which is copyrighted.
>
>I give it to person A with a CC BY-SA license.
>
>I give it to person B with a standard copyright notice.
>
>That is the extent of my distribution of this particular work.
>
>Before getting to use it, person A loses their only copy.
>
>Two brances here:
>
>In the first, person A then dies. In the second, they live.
>
>One: Person A is dead. Person B learns of the license I gave person A. Can 
>person B claim to have the BY-SA license?
>
>Two: Person A lives. Can they get a copy from person B? Does the license I 
>gave apply to the copy. If so, is B breaking the law by copying a work they 
>have no right to copy, while A is not breaking the law as they have a 
>license 
>from me?
>
>This is almost too off the wall to contemplate.
>
>Can some help with an explanation that will set me straight?

Hi. I hope I could be of some help, but please keep in mind that I am not a 
lawyer. 

My understanding is that in both cases, person B may be free to use 
the Work according to the CC license shown to person A. That is because 
CCPL is not a license to a specific person, but to the general public. By 
attaching a CC licence to your work, you have possibly expressed you intent 
that 
Any member of the general public can use the licensed Work if he 
follows the license terms. Arguably. 

Other arguments are possible - and may be more plausible in some contexts. 

I realize that CCPL does not say it as clearly as GFDL.

GFDL says: "Any member of the public is a licensee, and is addressed as 
"you"."
(http://www.gnu.org/copyleft/fdl.html 1st para. of 1. Applicability and 
definitions)

This statement seems to create more reason to think that the licensor 
does not mind person B or any other person can use the work under GFDL. 

What if the person A's Work is lost or burnt to ahses? I don't 
think it matters at all. The other surviving copy can be used 
according to the license. Once done, the license cannot be taken back 
- it is a "perpetual" grant. 

7.b. "Subject to the above terms and conditions, the license 
granted here is perpetual (for the duration of the applicable 
copyright in the Work). Notwithstanding the above, Licensor 
reserves the right to release the Work under different license 
terms or to stop distributing the Work at any time; provided, 
however that any such election will not serve to withdraw this 
License (or any other license that has been, or is required to be, 
granted under the terms of this License), and this License will 
continue in full force and effect unless terminated as stated above."
(http://creativecommons.org/licenses/by-sa/2.5/legalcode ). 


As Daniel pointed out (and I actually pointed out earlier in the 
discussion), this raises a pragmatic question. For that, I can offer 
two explanations. 

First, it is almost always possible to distinguish a use based on 
a CC license from uses that are not. Look for license notice and other 
signs that is unique to CC license restrictions. If those requirements 
are met, it is a strong sign that it is based on a CC license. In drew's 
hypothetical case, it is pretty easy to tell if person B copied from 
his own work without permission, or followed the CC license. 

Second, there are court cases dealing with disputes of the similar nature. 
When I make a poem and someone says "that's too similar to mine!" and sue me, 
what do I do? How does the court determine if I infringed on the other 
person's 
copyright? If the work is well known and accessible, or if I actually 
accessed 
the other person's poem, then the court is very likely to determine that 
I used the other person's poem. And if the used parts include some creative 
expression, as opposed to mere ideas, the court would find it an 
infringement. 
That's how I understand it. 

Combined, it is not as difficult as one might think to distinguish 
CC license-compliant uses and unauthorized uses. And when it is difficult, 
the court applies specific tests to determine the fact and make judgements. 


I also thought about this : what if you and person B specifically agreed that 
person B does not use the Work except as permitted by the fair use? Can 
person B still qualify as a licensee for the CC license you attached to the 
work? 
I don't know. 


Best, 

Tomos