Development of Creative Commons licenses

[Andres Guadamuz <a.guadamuz AT ed.ac.uk>]

Henri Sivonen wrote:

> 
> I don't claim that you do. However, I am interested in CC's opinion  
> on the legal validity of the approach taken by FSF, because it is CC  
> who is being different.
> 

Hi Henri. There is no reason for one of the solutions to be valid and
the other one to be invalid, this creates a false dichotomy. Both
solutions can be valid, they're just different. I personally believe
that FSF's position may be problematic in some legal systems (I
mentioned contract formation and warranties just to name a few
concerns). However, the approach is not wrong. The FSF has a clear
centralised drafting strategy. This is a valid approach for an
organisation that deals with one subject matter.

You must also consider that the FSF is heavily involved in GPL
enforcement, even recommending licensors to assign their copyright to
the FSF so that they can enforce the licence in their favour. Similarly,
there are organisations like gpl-violations.org. CC does nothing like
this, as the target audience is different.


> 
> GSFDL will compete with CC-by-sa 3.0 for network effects in terms of  
> the pool of compatible works. Is the GSFDL draft legally flawed?

I have a high regard for the GNU FDL, so I personally have no problem
with it, although it has the same problems of adaptability to local
jurisdictions as the GPL. I have to repeat my above remark. There is no
need for keeping an either/or mentality. I don't think that both
licences are "competing", nobody is getting any money from who uses more
licences. More people using the FDL is a good thing (at least in my
books). IMO, it is perfectly possible for both systems to co-exist, and
the validity of one system does not impinge on the validity of the other.


> 
> But CC has chosen to create a "New Generic" set of licenses.
> 
> What's the point of "New Generic" if CC doesn't believe in GSFDL- 
> style licenses that are designed to be globally applicable?

Again, you're stuck in a binary view of licensing. As for the reason for
a generic licence, I think that the choice must be there for people to
use something generic, such as yourself. I personally prefer to use a
licence that already contains a choice of law and jurisdiction clause,
hence my use of the Scottish licence whenever I attach CC to a work.


> 
> What I don't understand is why all this experience is not unified  
> into "New Generic" which could then be linguistically translated-- 
> which is what the FSF attempts to do with GSFDL.

In my opinion, this is because the effort has shown precisely that
jurisdiction-specific licences are more likely to be upheld in court,
and because it is extremely difficult to draft a generic licence that
brings all of the complex interaction between CC jurisdictions.

I also believe that CC is drafting local licences because it can. On
each country you have an enthusiastic and involved group of people who
give up their time and legal expertise to port a licence, this acts as a
great promotion tool. Not only do you get a locally enforceable legal
document, you get a local node as a result.

> 
> So to rephrase my questions:
> If CC believes that global licenses like the GSFDL draft are legally  
> flawed, why is CC making the "New Generic" set of licenses? If CC  
> believes that "New Generic" will work, doesn't that leave a need for  
> linguistic translations but remove the need for jurisdiction-specific  
> ports? And on the other hand, if CC believes that jurisdiction- 
> specific changes are needed, doesn't it mean that even CC itself  
> doesn't believe in "New Generic"?

I believe that I already answered this question. CC does not need to
believe that the GNU FDL or the GPL are invalid in order to follow a
different route.

In the wise words of the Groove Armada "If everybody looked the same,
We'd get tired looking at each other..."

Regards,

Andres

-- 
Andres Guadamuz
AHRC Research Centre for Studies in
Intellectual Property and Technology Law
Old College, South Bridge
Edinburgh EH8 9YL

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz AT ed.ac.uk
http://technollama.blogspot.com/