Development of Creative Commons licenses

[Terry Hancock <hancock AT anansispaceworks.com>]

Nancy Ide wrote:
>  We have two licenses, an "open" license that applies to appropriately
>  freely redistributable, which you can see at http://
>  projects.ldc.upenn.edu/ANC/ANC_SecondRelease_EndUserLicense_Open.htm
>
>  This strikes me as certainly within the spirit of BY-SA. Any text we
>  took from the web would be under the open license. Does anyone have
>  an opinion as to whether this license would be consistent with
>  BY-SA?

Even without reading I can say "no".

The By-SA requires that the material remain under the By-SA. It
supercedes anything you might want to write about it.

You can't even convert By-SA to GPL or vice-versa. This is one of
the legal foibles of the copyleft concept -- even if the two licenses
are *conceptually* similar, they are *legally* distinct.

You need to redraft the license to *exempt* the By-SA material,
so that its license is not affected. I see you already have the
"mere aggregation" terms in your license, so your terms are
consistent with having differently-licensed material in the same
distribution -- which is what you need to do.

>  We also have a "restricted license" that covers materials in the
>  corpus contributed by publishers. This license is at http://
>  projects.ldc.upenn.edu/ANC/
>  ANC_SecondRelease_EndUserLicense_Restricted.html
>
>  However, commercial users have to use a third license listed at
>  http://projects.ldc.upenn.edu/ANC/ (the ANCC Commercial License
>  Agreement--it's a doc download), even for open texts, for some
>  reason. IANAL either, so I have to rely on the UPenn team.

Same note applies to these. It really doesn't make any difference
either way -- you can have restricted and unrestricted material
on the same medium without causing problems.

>  My
>  only problem with it is that the UPenn lawyers say that we cannot use
>  share-alike texts because of that third license. If it were up to
>  us, we'd distribute the whole thing under a CC-like BY-SA license.

Well, basically, you have a sales problem then. You need to convince
those lawyers that they work for you, and not the other way around.

Odds are, they are suffering from some of the same misconceptions
that we've been trying to address with you.  If you like, we'll talk to
them. ;-)

All they have to do is exempt the By-SA material (which they actually
have to do for any of the EULAs you describe).

>  Also to Terry's statement that Google and others mine the web (BTW
>  data mining is really something different, technically--it means
>  getting new, non-explicit knowledge from existing data, not just
>  gathering statistics, but this is a minor point)

It's still "data" and hence non-infringing, for our purposes.

Consider this: suppose I freeze frame a TV image of Star Trek.  Then I
collect all of the pixels.  Now I rearrange them into a picture of the
Taj Mahal.  Have I infringed Paramount's copyright?  NO. Because the
work was sufficiently "transformative" -- the result really has little to
do with the original. You can't copyright colored pixels (too simple -- even
a structure as complex as a glyph in a printing font is too simple according
to standards set by the US Copyright office -- that's why you can't
copyright fonts in the US).

Likewise, you can't copyright words.  If you scramble a work into a
histogram of the occurances of certain phrases or words (for example),
then the resulting product, though it may contain every single word
in the original, is not a "derivative work".  It's too "transformative", and
each individual "copy" is of a tiny piece of the original, well within the
bounds of the fair use concept of "academic quoting".   Now, of course,
IANAL, and I suppose a lawyer might disagree with me, but I'd love
to see their argument if they do, because that just wouldn't make
any sense to me.

Certainly if you blend a work in with many other works, and similarly
scramble the content, you will be in the fair use category, because even
a complex word count couldn't figure out that the words are from
particular works (well, it might be able to guess if it's a really smart
algorithm based on rare words, but that's not relevant).

The point is, it is not a derivative work just because it has the same
words in it. The words have to retain their original structure and meaning.

If it's a story, then the story still has to be there, for example.

> --see my earlier
>  note. They--and anyone else--can do it with no problem because they
>  do not redistribute the data.

If you mean they do not redistribute the original data set, I agree.

I doubt whether this would actually be a problem for their data product,
for the reasons I outlined above.

If it is, then "fair use" is badly broken, which is entirely possible. 
However,
AFAIK, "fair use" hasn't really got a solid definition, but is, rather, 
defined
by precedents.  It seems much more likely that this is a case of 
conservative
fear of going to court over the issue, because you have some perception
that it *might* be infringing. But I don't think it is.

>  The non-commercial part is still a mystery to me.

As to us all, even those who use it, AFAICT. ;-)

> The goal of our
>  license is to restrict our commercial users (many of whom are
>  publishers) from "re-publishing" any of the ANC materials and making
>  a profit. That would certainly be ok with most authors, I think, so
>  why could we not use NC texts? Publishers can, however, use the
>  materials as a resource to develop dictionaries, reference books, and
>  ESL texts. Under fair use, they can directly quote no more than
>  about 250 contiguous words, but that is all--and they rarely if ever
>  do in any event.

Note that CC-By-SA is incompatible with CC-By-NC-SA for this same
reason: CC-By-SA prevents additional restrictions from being placed
on the work, and NC is an additional restriction.

In fact, this has been a pretty hot issue for some time now ("hot"
as in people get pretty hot under the collar over it).

>  I imagine we would have to work out the degree to which our
>  licenses are consistent with CC's, especially the Commercial License
>  Agreement, so I'd like to get a grip on that issue first.

Again, you're just going to have to talk to those lawyers.  The EULA
must not be construed to affect the CC-licensed material.

This is really dead simple, and they really need to get their heads
around it, it's not like lawyers haven't figured this stuff out before.

In fact, if the problem is that they won't listen to a non-lawyer, you
should consider talking to Eben Moglen' Software Freedom Law Center.
It's even possible that they would do it pro-bono, if it's just to promote
free-licensing and it's not complicated (which it shouldn't be):

http://www.softwarefreedom.org

"If you would like to learn more about having the SFLC present
to your group, please contact us 
<http://www.softwarefreedom.org/contact.html>." might be a good thing to 
follow
up on.

>  We even give our authors a cute little "ANC Author" logo to put on
>  their web sites if they contribute ;)

The motivational power of little certification images never ceases
to amaze me.

>  Thanks again for your comments and insights, and apologies for my
>  prior frontal attack...

No sweat. Everybody does it at least once. ;-)

Cheers,
Terry

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