Development of Creative Commons licenses

[Terry Hancock <hancock AT anansispaceworks.com>]

Ŭalabio‽ wrote:

> 	Awhile ago, I did took an impromptu poll and determined that most  
> people hate CC-BY-NC-ND as being antithetical to the purpose as a  
> creative commons (one cannot build on them).  
* How many people did you ask?
* How did you select your sample?
* What were the questions?
* What percent responded with what answer to each question?

If this information exists, you should publish it, at least here. I think
you would find a very receptive audience to real data.

Without any kind of methodology, a "poll" is not meaningful at all.
You might as well have read it scrawled on a bathroom stall.  So,
you shouldn't use the term "poll" at all, because's that's deceptive
unless you mean what you say.

> We should remove CC-BY- 
> NC-ND from future versions of the licenses and reduce the scope of CC- 
> BY-ND to commercial works.
>  
Don't say "we" if you aren't actually part of CC.  You mean
"you".  This is also deceptive, because you are trying to claim
authority you do not have.

> In the meant time, I find that CC-BY-NC-ND is such an abomination,  
> that I do not feel bound by it.  I shall follow the freedoms.  To me,  
> CC-BY-NC-ND is CC-BY-NC.  CC-BY-ND does not apply to noncommercial  
> works.  I shall write all of the missing chapter I want for CC-BY-NC- 
> ND and CC-BY-ND and release them noncommercially.  I shall encourage  
> others to do likewise.
>  
Again, you try to overreach.

Whether you "feel" bound by it or not, is irrelevant.  Licenses
and contracts are a matter of law.  It may be forced upon you
at the will of the copyright holder.

You of course, may choose to break the law. This is the choice
of millions of people who illegally download "all rights reserved"
music every year, and there are people who are trying to sue
them all if they can find them.  This is widely regarded as a
truly stupid situation.

There are two ways to respond (if you also agree this situation
is stupid):

1) Bring about a change in the legal system by lobbying your
   legislative bodies (Congress, if you're in the USA).  Bear in
   mind, you really need to improve your argumentative style
   if you expect to move any lawmakers.

2) Create creative communities around licensing schemes. CC
   exists primarily to facillitate this solution.  It is not the only
   body offering licenses for "freeing" content.  You may want
   to look at some of the others (FSF, for example).

Now, #1 would affect all works (what you are trying to do), and
is, to some degree or other, almost certainly the long range
solution to many of our society's present ills.  But it's *HARD*,
and you will wait a long time, if this is your only method.

OTOH, #2 is pretty quick. But it only affects the works of authors
who opt to use CC licenses.  It is defined by the *authors* of
works -- not by people who receive those works.

IOW, if you don't like ND, then don't use the works of authors who
use it. *That* is your freedom.

If you wish to violate law, that's not a matter for us to act on.
That's a matter for the author to enforce, or not.  If you really
respect the author so much, you should respect their wishes --
why don't you ASK them whether they object to your uses? If they
agree that what you are doing doesn't fall under the ND restriction,
then they shouldn't bother you, OTOH, if they feel it does, but don't
mind what you're doing, they can either:

1) Make an exception for you (grant you specific rights)

2) Re-license the work (i.e. you should persuade them, not us)

> CC-BY-NC-ND and CC-BY-ND applied to noncommercial works is  
> incompatible with the concept of a creative commons because one  
> cannot build on them.
It's incompatible with your ideals of "free art".  CC includes
several "non-free" licenses (by, for example, the standards of
the Free Software Foundation, the Debian Free Software Guidelines,
or the Open Source Definition).

The sad thing is that, in all probability, the problem that you
see doesn't really exist.  Copyright law is complex with regard
to the concepts of "derivative works".  The degree of derivation
possible depends significantly on the type of work (more than
it should, IMHO).

The matter is complicated largely by a large body of case law,
much of which is apparently overreaching.  I think a lot of that
needs to be reconsidered, but that's a matter of legal protocol,
and it's way out of my field, so I'll just leave it at that.

When CC uses the term "derivative work" they are referring to
this legal interpretation.  They are not using the extreme overreach
that you are defensively attributing to them.

In particular, if a work merely shares the same "world" with another
work (same characters, settings, and (e.g.) laws of physics), that
doesn't (necessarily) make it a "derivative work." There is a long
literary tradition of writing works that are "inspired by" other
works, and may share characters or setting with them.  But they
need also to be significantly original works in themselves to be
considered that way.

That is the standard of ordinary "All Rights Reserved" works, and
the ND clause preserves that standard (it cannot, IMHO, extend it --
under copyright law, the author does not own what is not (in the
legal sense) *derived* from their work, hence they have no ownership
authority to impose such requirements).

What you would call a "free" license, OTOH, *curtails* that standard,
by giving you *greater* freedom, because it allows you to violate
the "derivative work" standard -- provided you play by the rules set
out in the license.  This, of course, is legal -- you may give away
rights if you choose to do so.

Your choice -- to simply infringe copyrights -- is something you are of
course free to encourage people to do, but it does nothing to change
the legal force behind such licenses unless and until you bring about
sufficient social change to have the legal regime of copyright itself
altered.  And, I hate to break this to you, but you're fighting upstream
there -- I don't doubt that things will eventually turn around, but it could
take decades.

Personally, I think non-commercial (NC) licenses should be deprecated,
because I think they don't do what their authors think they do.  
Non-derivative
(ND) licenses don't bother me, because it's obvious that the author really
*doesn't* expect to be contributing to a "commons".  I agree this does 
little
to build the commons, but I can't see how it detracts from it -- the authors
who use it would be unlikely to release without it.

That's what's particularly disturbing about your little diatribe -- you are
totally disrespecting the authors' wishes.  You're just trying to 
rationalize
your infringement.  It's perfectly clear that the author does not want
derivatives to exist, and it's (fairly) clear that the law restricts their
ability to restrict you.   If that isn't good enough for you, then you 
can break
the law. Chances are pretty good that you'll never be prosecuted
(this is the basis on which many fan communities work), but don't
delude yourself.

Cheers,
Terry Hancock

(Who is neither a lawyer, nor a member of Creative Commons. Just a
very, very opinionated observer).

P.S. I highly recommend Duke's "Bound by Law", which explains a lot
      of these points in a very friendly way:
      http://www.law.duke.edu/cspd/comics

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