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  • From: "Jim Sowers" <jim AT>
  • To: "Discussion on the Creative Commons license drafts" <cc-licenses AT>
  • Subject: Re: [cc-licenses] Version 3.0 - Revised License Drafts
  • Date: Wed, 1 Nov 2006 01:21:09 -0800

Hello All,

I'm relatively new to the Creative Commons world and very new to this list (although I have been an attorney for a while and was part of the legal team at the U.S. Dept. of Justice that brought the very first lawsuit against Microsoft in 1994 ( Civil Action No. 94-1564 )).

Since I'm new, I will assume that my question is basic and has been asked and answered, so forgive me.

Does taking content that has a non-commercial restriction and using on a website that runs AdSense violate the non-comm. restriction?  Assume that the primary driver of traffic is the use of CC licensed content?

The language in the license in 4 (c) is: "You may not exercise any of the rights granted to You in Section 3 above
in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation." 

Seems like this could cover a lot of AdSense-based sites.  Just wondering what the current thinking is on this.


Jim Sowers

P.S.  On the style front, virtually every use of the word "such" in the licenses could (and should!) be replaced with the word "the".

"Such" is an adjective.  My take, having worked on a LOT of commercial documents, is that lawyers want to convert "such" into a definite article.  It seems to be used by lawyers who used to use "said" until the SEC issued it's plain English requirements, and the lawyers just couldn't get comfortable with "the", so they switched to "such" -- which adds no more precision or certainty than the definite article "the".  Such is "said's" ugly cousin. 
See: Plain English for Lawyers by Richard C. Wydick 

Here are his comments on the use of "said" which are equally applicable to using "such":

"Consider, for example, the word said in its archaic use as an adjective. No lawyer in dinner table conversation says:
'The green beans are excellent; please pass said green beans.'  Yet legal pleadings come out like this: The object of said conspiracy among said defendants was to fix said retail prices of said products in interstate commerce.

"Lawyers who use said claim that it is more precise than ordinary words like the, or this, or those.  They say it means 'the exact same one mentioned above.'  But the extra precision is either illusory or unnecessary, as the above example shows.  If only one conspiracy has been mentioned in the preceding material, we will not mistake this conspiracy for some other conspiracy, and said is unnecessary.  If more than one conspiracy has been previously mentioned, said does not tell us which one of the several is meant.  The extra precision is thus illusory. If the were put in place of all the saids, the sentence would be no less precise and much less clumsy.

- Plain English for Lawyers, 4th Edition, Richard C. Wydick, pp. 61-62

On 10/30/06, Mia Garlick <mia AT> wrote:
Version 3.0 - Revised License Drafts

So there have been several new amendments to the licenses — mainly as
a result of the discussions on the cc-licenses list, but some as a
result of discussions internally and amongst CC's international
affiliates.  A first round of comments to the cc-licenses list
discussions was posted back at the beginning of September (http://
but the bulk of discussions took place after this posting. The issue
of the DRM parallel distribution language was debated in earnest.
Ultimately, however, the general sentiment on the list does not seem
to favor  implementation of the DRM parallel distribution language at
this stage.

To briefly explain the current round of amendments:

# New language has been included in the second introductory paragraph
of the license to ensure that the license language is not interpreted
by a court so as to require that the license be held to be a contract
but rather to enable the agreement to be interpreted as a license, or
in the alternative, as a contract.

# Definition of Collection (new generic) & Collective Work (new US) -
this definition has been tweaked to clarify that it intends to apply
to all types of copyright protected materials (in the case of the new
generic); and, that the definition applies to the collocation of more
than one works (in the case of both licenses) rather than just three
or more.

# Clause 2 (new generic) - the title has been changed to "Fair
Dealing Rights" in place of "Fair Use Rights" to ensure that it is
clear what is covered by this clause in the majority of jurisdictions
around the world, which have fair dealing.

# Clauses 4(a) & (b) (both licenses) - language has been introduced
to clarify that the anti-TPM restriction does not apply to private
copying, only when a work is being shared.

# Clause 4(a) (both licenses) - the ShareAlike condition has been
clarified to confirm that the other jurisdiction licenses under which
an SA-licensed work can be relicensed must be of the same license
version or later (consistent with relicensing under the same
jurisdiction/generic license).

# Clause 4(e) (new generic) - this clause has been substantially
revised since the first draft was circulated on the list.  The
revisions reflect the ongoing work of the CC Working Group that has
been set up to look at the issue of CC licenses and collecting
societies and represents the agreed on policy for CC licenses going
forward as regards the collection of collecting society royalties by
CC licensors.  It is designed to take into account the different
systems that exist in different countries and will be reflected in
the jurisdiction licenses that version to 3.0.

# Clause 4(f) (new generic) - this clause has been amended to make an
exception to the retention of the moral right of integrity for
jurisdictions such as Japan.

# Renaming the "generic" - as you can see from these license drafts,
we are proposing to rename the generic to "unported."  This
description reflects the terminology used by CC since the
international license porting process began - we refer to the process
of adapting a license for a particular jurisdiction as "porting."  It
was felt that new terminology was needed to avoid giving people an
inaccurate impression that the "generic" license was somehow
international or more suited to online usage than the "ported"
licenses.  CC will be releasing by the end of the year, some
guidelines to better clarify the issue of which license to select.

As noted above, these changes, for the most part, reflect list
discussions and so hopefully a large amount of further discussion is
not necessary and version 3.0 can be implemented shortly.  However,
if there are further errors or issues identified by people then the
discussions will continue for as long as necessary to resolve these.

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