Development of Creative Commons licenses

[Terry Hancock <hancock AT anansispaceworks.com>]

Okay,  I don't think I actually said it, so let me do so
now: "This is not legal advice! I am not a lawyer".

On Mon, 28 Nov 2005 15:45:35 +0000
rob AT robmyers.org wrote:
> Quoting Terry Hancock <hancock AT anansispaceworks.com>:
> > In legal terms, the earlier "license grant" (not the
> > license) "includes by reference" the later license,
> > which can *legally* include any terms it wants. It could
> > convert ALL BY-SA content to AFL or MIT licenses and
> > allow any form of relicensing, including proprietary.
> 
> Does this mean that NC could be upgraded to allow
> commercial use?

Yes.

> > Whenever people use the "or any later version"
> > clause, they open themselves up to this kind of
> > betrayal. That's why you have to really trust the
> > institution you put that kind of trust in.
> >
> > But there's no *legal* obstacle.
> 
> Erk. Are you certain about that? If CC rewrote NC to allow
> commercial  use, large
> numbers of people would suffer measurable harm. Is there
> really no  legal course
> of action people could take to prevent this?

Actually, no, I'm not *positive*. By using a "or any later
version" clause, you are, by the letter of the law and by
the letter of the license you have used, granting permission
for this kind of thing.

However, you *could* probably make a case based on the
"implied contract" with CC not to make such far-reaching
changes. There is a theory that says basically "if what you
signed is not what you thought you signed, you aren't bound
by it, and a court can rule in your favor, and change the
written contract". Mind you, that is *contract* law, I don't
know if it applies to a license.

But of course, you *are* expected to read the license. The
only thing you wouldn't be allowing them to do is change
something that they promised in the original document not to
change (I believe the GPL does do something like this,
unless its in the explanatory text outside of the license
itself -- they say that future licenses may grant "more
freedoms but not less" or something along those lines. Of
course, even if a later license *is* more restrictive, you
don't *have* to use it, you (as the receiver of the code,
not the author) always have the option to use the older
license.

But AFAICT, yes, you have agreed to let them change the
license anyway they see fit. You are relying on them not to
do something unsavory.  I should point out, though, that you
probably do have an out if the owner of the license should
change hands -- no doubt if Microsoft bought out Creative
Commons they would not actually be able to take control of
the CC license text (one of many reasons why that's
astonishingly unlikely to happen).

Note that all these things would involve you suing Creative
Commons, not the licensee. And your relationship with CC is
pretty tenuous.

So in the end, I *still* don't think you'd have much of a
case. Even CC has used the "this is not legal advice" hedge,
as you may recall.

> > That's why some projects
> > prefer not to use "or any later version" with the GPL (I
> > don't recall if you have an option with By-SA, I think
> > the language may actually be in the license itself?).
> 
> The option to relicense derivatives (not initial works) is
> contained  within the
> BY-SA 2.x license itself.

Yeah. I'm not nearly as familiar with the By-SA as with the
GPL.

> > So, to clarify, are you questioning this clause on a
> > *legal* or *ethical* basis?  I refute the former, but
> > the latter is certainly debatable.
> 
> I'm questioning the relicensing clause for ethical reasons
> but I'd much rather have a legal basis.

Well, personally, of course, I regard the former as just as
important, and I suspect that CC collectively does as well.
So it should be debated. But I don't think there is much
weight to any legal argument.
 
> BY-SA states that you can only upgrade (or crossgrade, to
> an international license) to a CC license with the same
> license elements (BY and SA). If the license elements can
> be arbitrarily redefined then that statement is rendered
> all but meaningless.

It has the strength of your belief in Creative Commons to
"do the right thing".

Also, if a module is called "Non-Commercial" and yet the
"legal code" permits commercial use, then that is at least
"false advertising" on the part of Creative Commons. There
is *some* legal basis for the trust itself.  So, if CC
*really* fails your confidence, you probably have recourse
against them of some kind.

But you also have to realize that the site, and especially
the parts for artists choosing to use the licenses are
peppered with "use at your own risk" hedges, for the obvious
reason that you haven't paid them a dime for their legal
work, so you have little basis for asserting that they have
promised you anything.

Also -- I just realized another point: the language you are
describing is addressed to the *licensee*. What it's
protecting you from is the licensee *unilaterally*
"upgrading" from one CC license to another. It's not
protecting you from Creative Commons itself changing the
license text.

So, yeah, I think you really ought to frame your arguments
here on the basis of ethics, not law. And after all, this
ought to be a pretty friendly room -- there is clearly some
coincidence of interest among artists currently using the CC
licenses.

-- 
Terry Hancock (hancock AT AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com