Development of Creative Commons licenses

[phyllostachys nuda <phnuda AT yahoo.com>]

The whole purpose of my post was to respond to the person who claimed that users could start suing producers. The analogy was when the post office prohibited obsecene/porn material and a bunch of wackjobs sued Walt Disney. Here is the direct quote from that persons post:

 

"US Postal regulations prohibit the sending of obscene and
pornographic material. The case law permits the USPS to define all from a specific address to a specific address as being "obscene" and "pornographic".

The recipient of the mail is the person who gets to define "obscene"
and "pornographic"."

 

I was attempting to explain that this analogy does not fit. The producer of a work is the one that defines what is appropriate and inappropriate use under a human rights license. They are the one who bring a lawsuit. The producer is not a 'carrier' like the US Postal Service. The USPS was a third party transferring material between a producer and a user. In a 'human rights' license, there is no third party with some kind of rule to follow. There is just the producer, the license they create, and the user who is supposed to follow that license. The producer can sue the user for violation of copyright law. The user cannot sue the producer. The only law being considered here is copyright law and the only person with 'standing' in a copyright law case is the producer of the work. That is the main problem with the analogy.

 

As for coming up with specific defintions to put into a license; that is not easy. But you have to start somewhere which is why I'm writing all this. You claim the CC licenses are not well defined with regards to the term 'commercial'. Does that make them worthless? I don't think so. Maybe someone will try to snake their way around this lack of definition. After that, someone else will modify the CC license so that it is better and prevents this sort of thing.

 

So the CC license is not perfect. It has loopholes and unintended consequences. It is continually updated to repair itself and make itself better. Somebody might say "its not worth the trouble, its inherently flawed, destroy it". But that is a matter of faith and I think history is swinging on the side of CC / GPL / BSD / etc continuing to exist for a long time, despite their flaws.

 

Then you are back to the nitty gritty. Can you actually define what human rights are? Can you define what harms them? "Weapon" is not going to work as you said. Chopsticks are a weapon. Words are a weapon.

 

However, there are things we can define. For example consider a license that prohibits the use of the product in the 'supression of dissent without due process'. You have to gauge what is being done, and you have to gauge why it's being done. This of course can get murky but it is not so thick we cannot see. One merely needs to look at the actions of a government or organization to gauge its intent.

 

If a nation has a database of 'potential subversives', and it throws them in prison without due process, without trial, without habeas corpus, without a lawyer, and without a phone call, then this database software is being used with intents contrary to a basic human rights license. If a government has a database of citizens for issuing food stamps, however, then that is a different matter.

 

As to the specific details and interpretations; that is why we have lawyers. To fight over details and interpretations. That fighting is what brings us civilization. In the old days 'due process' meant a white guy with property had to testify that you did something bad, then you admitted you did it after being tortured for 10 hours, then you were burned at the stake. Nowdays you are supposed to get a fair trial, miranda rights, a lawyer, right to face your accuser,  torture is supposed to be illegal, and so forth and so on. It's called progress.

 

But now consider the murky side of the example. Lets say a government keeps a database of citizens for purposes of tax collection. Some people think taxes are 'supression of dissent' and a violation of the principles of human rights. This brings me to the nutball question.

 

There is always going to be a nutball objection to any rule. That is precisely why so many corporations ban the use of GPL code. They do not want to be sued by some nutball who is trying to exploit them for money, or is being hired by opposing corporations, or is just a nutball. The nutball will sue the corporation using any conceivable interpretation of the GPL they can think of.

 

However many people still write code and publish it under the GPL anyways. Why? Because the GPL gives the author something; it protects their ability to share the code in the future. They use it not in order to say 'gotcha' to corporations. They use it because it is good. And that is why some corporations are using GPL code and adopting GPL like licenses; they realize it has good qualities even though it still risks the 'nutball' author suing them.

 

But what about a human rights license? What does a creator get out of that? Why would they go to the trouble if they get nothing out of it? And why would someone use such a product if they are worried that some nutball might consider strained carrots to be a 'biological weapon of mass destruction'?

 

The answer to that question is obvious.

 

-PN

 

 

 

 

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On 12/5/05, phyllostachys nuda wrote:

> It means you start simple and work through the murky details one by one.

_All_ details are murky, until, and unless they are clearly and
explicitly defined, as part of the contract that they are used in.

> Furthermore, 'user interpretation' is not the issue here,

It is. If the licence does not clearly and explicitly define _every_
term, and what that means legally, it is going to be ambiguous, and
subject to "user interpretation".

To go back to the "CC NC" licence.

"The licensor permits others to copy, distribute, display, and perform
the work. In return, licensees may not use the work for commercial
purposes -- unless they get the licensor's permission."

The key phrase here is "commercial purposes".

Section 2.4 of the FAQ attempts to explain "commercial"
It states that file-sharing, amongst two or three activities, are
"non-commercial", even though US Law defines "file sharing" as
"commercial".

What other things that could be construed as "commercial", are
"non-commercial"? More importantly, what things that could be thought
of as "non-commercial", are going to be construed as "commercial"?

None of the CC NC licences clearly define "for commercial advantage",
or related terms.

Is a church choir that performs a song with an NC licence doing so
"for commercial advantage"?
If tickets are being sold, then the answer is probably "yes".

But does passing the collection plate turn it into "for commercial advantage"?
Messianic Christianity would say "yes".
Evangelical Christianity probably would say "no".
Prosperity Christianity would say "hell, no."

> The primary person who gets to decide what is appropriate and inappropriate is the person who creates the work that is under a human rights-type of license.

I'll go back to the "not to be used for making weapons" as a
sub-category of a "human-rights-type" of licence.

How, and where do you define "weapon"?
I have a Shurakin welded onto a necklace. Airport security in 1986
declared that to be "a lethal weapon". I purchased and wore it as
"costume jewelry". The person who sold it, sold it as "costume
jewelry".

Is what I wore "a lethal weapon" or "costume jewelry"? Both? Neither?

> The user is supposed to abide by those rules.

Do you seriously expect a user to abide by, and understand a "human
rights" type licence, when the potential for misunderstanding is
infinite, and the potential for understanding is zero?

The only difference between a nova, and a nuclear weapon blast, is
that the former _currently_ has much more fuel to expend.

xan

jonathon
--
This is our sandbox and if we want to throw sand we can

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End of cc-licenses Digest, Vol 33, Issue 5
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