Development of Creative Commons licenses

[Mia Garlick <mia AT creativecommons.org>]

what i have said multiple different ways now is that the statute does  
not offer support for the provision in the license.  so if CC were to  
introduce the provision you want in the license, then we would be  
exposing those who operate under the license to the risk of civil and  
possibly criminal action for violation of the relevant sections of  
1201.  you can not buy my argument forever, but CC would, i believe,  
be negligent as a license steward to expose anyone to such a risk  
regardless of how many of us disagree with the applicable law.

if you use this analogy for what you want in the license:

> I'll let you
> use this pasture of mine. I'll even let you put a fence around it. But
> you have to promise to let anyone cut that fence in order to get to  
> the
> pasture".

what the law says is:

I, as the landowner, may let you use this pasture of mine, I may put  
a fence around it and I may authorize certain people to cut the fence  
wire.  The law will not expose those who cut the fence with my  
consent to the risk of civil or criminal liability.

the law may also say:

I, as the owner of the fence, may authorize people to apply the fence  
to their land and I, as the fence owner, may consent to some people  
to cut the fence and the law will not expose those who cut the fence  
with my consent to the risk of civil or criminal liability.

what the law does not say is that:

I, as the landowner, will let you put a fence that is made by someone  
else on my land and then i will let you or some random other person  
cut that someone else's fence...

do you see what i am getting at?

On Sep 25, 2006, at 5:11 PM, Terry Hancock wrote:

> Mia Garlick wrote:
> >  this is not a productive line of ongoing discussion.
>
> *Smile* when you try to suppress the democratic process by squashing
> dissent under the iron boot of the Creative Commons ruling junta. ;-D
>
> Seriously, I think it *is* productive, because I still don't buy your
> argument.
>
> Part of the problem, of course, is that the DMCA anti-circumvention is
> *fundamentally* absurd: it's about outlawing wirecutters instead of
> outlawing fence-cutting.  And that's just stupid.  But even if you  
> were
> going to write such a law (ironically, I think we still have a law  
> like
> that on the books somewhere -- or so various trivia books claim), it
> will be pretty obvious that there are certain exceptions to it (*I*
> interpret the clause in question as a codification of those obvious
> exceptions). Obviously, you needed wire cutters to put the fence up in
> the first place, as well as to move or cut a fence you have a  
> legitimate
> right to move.
>
> Clearly, if I then take the same wire cutters and cut my neighbors'
> fence, I'm going to be in violation -- but that's a different matter.
>
> What we're asking for, essentially, is a license that says "I'll  
> let you
> use this pasture of mine. I'll even let you put a fence around it. But
> you have to promise to let anyone cut that fence in order to get to  
> the
> pasture".
>
> This may make it rather pointless to put a fence up in the first place
> (good!), but if there's some technical reason why a fence must be  
> put up
> (e.g. to keep the cows in during normal use, or because there's a  
> county
> ordinance that says 'all pastures must be fenced'), then he can  
> keep his
> promises to both me and the county, while still promising the access
> that I insist on, and not having the cows wander.
>
> This allows pastures to remain free, even in counties where fence
> ordinances are piling up.
>
> --
> Terry Hancock (hancock AT AnansiSpaceworks.com)
> Anansi Spaceworks http://www.AnansiSpaceworks.com
>
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