Development of Creative Commons licenses

[Mia Garlick <mia AT creativecommons.org>]

profuse apologies for the delayed response to this email but i  
figured better late than never to respond...

On Nov 12, 2006, at 8:51 AM, Francesco Poli wrote:

> Hi all!
> I am Debian user (and debian-legal regular).
>
> I would like to comment on the new draft of CC-v3.0 licenses that was
> announced in a recent message[1] to the this same list.
> The message included two documents as attachments:
>  * BY-NC-SA v 3 (102506) (US).pdf
>  * BY-NC-SA v3 (102506) (unported).pdf
>
> [1] https://lists.ibiblio.org/sympa/arc/cc-licenses/2006-October/ 
> 004459.html
>
> In the following I comment on the draft whose filename is
> `BY-NC-SA v3 (102506) (unported).pdf'.
> Please note that the anti-TPM clause has already been discussed a lot,
> hence I won't comment any further on it.
>
>
> The title of this draft is
>
> |                           Creative Commons
> |             Attribution-NonCommercial-ShareAlike 3.0
>
> I am analyzing CC by-nc-sa v3draft license: why isn't there any
> highlighting for the clauses that vanish in the other v3draft  
> licenses?
> I am especially interested in by-sa and by, since they are the only  
> two
> that have some hope to meet the Debian Free Software Guidelines (DFSG
> from here on)...
> I think that clarity in this respect would be very important.

it is standard practice in CC's porting work to work with the BY-NC- 
SA draft as the basis because this contains most of the specific  
license element clauses.  the amendments that appear in this draft  
will be replicated, as appropriate, in the other license drafts.

> Clause 4(a) states, in part:
>
> |       If You create a Collection, upon notice from any Licensor You
> |       must, to the extent practicable, remove from the Collection
> |       any credit as required by clause 4(d), as requested. If You
> |       create an Adaptation, upon notice from any Licensor You must,
> |       to the extent practicable, remove from the Adaptation any
> |       credit as required by clause 4(d), as requested.
>
> This concerns me...
> I have previously discussed the issue on debian-legal, but I'm not yet
> convinced that this clause meets the DFSG.
> The most in-depth (and long) discussion on this topic that I recall
> starts more or less with
> http://lists.debian.org/debian-legal/2006/03/msg00092.html
>
> What I do not understand basically boils down to:
>
>   How can a license (allow a licensor to) forbid an accurate credit
>   and meet the DFSG at the same time?
>
> I think that stating "This Adaptation is based on the Work _foo_ by
> James O. Hacker" is an accurate credit, as long as it's true.
> Allowing James O. Hacker to force me to purge such a credit seems to
> significantly restrict my ability of modifying the work (see DFSG#3).

I disagree that removing a credit at all interferes with the freedom  
to modify.  A licensee can modify to their hearts content, the  
licensor just has the option not to have their name associated with it.

> Hypothetical example: Walter Writer writes the novel _Good Title_,  
> under
> CC-by-v3 and Nazi Ned creates an annotated version, titled _Good  
> Title,
> from a neo-nazi Perspective_.
> Assume that Nazi Ned states
>
>   by Nazi Ned and Walter Writer
>
> Walter requests to be removed from authorship credits.  Fairly enough.
> Ned removes his name.
> I don't think that the above credit would be accurate, so no problem
> here.
>
> What if Ned stated the following?
>
>   by Nazi Ned,
>   based on Walter Writer's _Good Title_
>
> Is that acceptable?
> Or can Walter request (under clause 4(a)) that his name be removed  
> from
> the "based on ..." statement?

Walter can request that the based on part is removed.

> Clause 4(b) states, in part:
>
> |    b. You may Distribute or Publicly Perform an Adaptation only  
> under
> |       the terms of this License, a later version of this License  
> with
> |       the same License Elements as this License, or a Creative
> |       Commons license for another jurisdiction (either this or a
> |       later license version) that contains the same License Elements
> |       as this License (e.g., Attribution-NonCommercial-ShareAlike  
> 3.0
> |       Japan).
>
> It's worth noting that CC licenses have a mandatory version-upgrade
> mechanism and also a mandatory jurisdiction-change mechanism.
> This can weaken the copyleft of ShareAlike licenses, and possibly
> trigger weird clauses such as "sue me in Scotland" (found in
> CC-by-2.5/scotland, for instance).  Authors, you have been warned!

This is not mandatory.  It gives a licensee the option of choosing a  
later version or different jurisdiction.  It would be an unlikely  
situation, I think, that the author of an original work, would be  
hauled into court regarding a dispute between two downstream  
licensees regarding a derivative work. Maybe it's possible but the  
fact situation is not coming to mind presently...

> Clause 4(c) states, in part:
>
> |    c. 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.
>
> This clause forbids selling the Work (fails DFSG#1) and discriminates
> against a field of endeavor (fails DFSG#6).
> I hope that clause 4(c) is entirely absent from CC-by and CC-by-sa,  
> but
> unfortunately there's no clear indication in this draft.

It goes without saying.

> Clause 4(d) states, in part:
>
> |       in the case of a Adaptation or Collection, at a minimum such
> |       credit will appear, if a credit for all contributing authors
> |       of the Adaptation or Collection appears, then as part of these
> |       credits and in a manner at least as prominent as the credits
> |       for the other contributing authors.
>
> Credit must be "at least as prominent as the credits for the other
> contributing authors".  Even if the licensor's contribution is not
> comparable to others?
> I think that this restriction is excessive and fails to meet the DFSG.
>
> I mean: Walter Writer incorporates a short poem by Paul Poet into a
> novel that includes 21 chapters written by Cindy Coauthor and 25
> chapters written by Walter himself.  Walter wants to put a "credit for
> all contributing authors" and lists his name (that is, Walter Writer)
> and Cindy Coauthor in 12 pt fonts, followed by credit for Paul Poet in
> 11 pt fonts.
> It seems reasonable to me, but, nonetheless, credit for Paul would not
> be "at least as prominent as the credits for the other authors":  
> that is
> to say, the license wouldn't allow Walter to do so.

Under this factual scenario, I think it's arguably that Paul Poet  
isn't an author of the book and only Walter and Cindy are.  In any  
event, at least I think this is the case for those jurisdictions with  
which I am familiar, copyright law typically does not treat authors  
differently depending on the extent of their contribution.  Once they  
are raised to the level of being an author, then they are an author  
with equal rights in and to the work subject to any agreement to the  
contrary.

> If it said "at least as prominent as the credits for the authors of
> other comparable contributions", it would be OK, but the actual clause
> doesn't say this, unfortunately.

Then you could just as easily criticize the license for allowing some  
authors to gang up on others to evaluate the extent of their  
contributions, no? :-)  If it's only one chapter but a seminal  
chapter, how do you assess comparability?

> Clause 4(e) states, in part:
>
> |  (ii) In those jurisdictions in which the right to collect royalties
> |       through any statutory or compulsory licensing scheme can be
> |       waived, the Licensor reserves the exclusive right to collect
> |       such royalties for any exercise by You of the rights granted
> |       under this License if Your exercise of such rights is for a
> |       purpose or use which is otherwise than noncommercial as
> |       permitted under clause 4(c); and,
> |
> | (iii) In the event that the Licensor is a member of a collecting
> |       society that administers voluntary licensing schemes, the
> |       Licensor reserves the right to collect royalties from any
> |       exercise by You of the rights granted under this License is
> |       for a purpose or use which is otherwise than noncommercial as
> |       permitted under clause 4(c).
>
> This shares with clause 4(c) the same DFSG incompatibilities.
> I hope that clause 4(e)(ii) and 4(e)(iii) are entirely absent from  
> CC-by
> and CC-by-sa, but, again, there's no clear indication in this draft.

It goes without saying that these clauses will be appropriately  
adjusted for those licenses that do not contain the NC license  
condition.

> The following are typos, or at least they seem to be:

Thanks for highlighting - they have been rectified to the extent they  
were not already picked up.

> ---> in the foreword (before clause 1) there's an occurrence of
>      "LIICENSE", which should instead be "LICENSE"
>
> |       TO THE EXTENT THIS LIICENSE MAY BE CONSIDERED TO BE A
> |       CONTRACT,         ^^^^^^^^^^
>
> ---> in clause 4(b) there seems to be an extraneous "of" (legacy of
>      previous phrasings)
>
> |       You may not offer or impose any terms on the Adaptation that
> |       restrict the terms of this License or the ability of the
> |       recipient of the Adaptation to exercise of the rights granted
> |       under the License.                     ^^^^
>
>      s/to exercise of the rights/to exercise the rights/
>
> ---> in clause 4(b) there's some over-copy-and-paste from clause 4(a),
>      I think
>
> |       When You Distribute or Publicly Perform the Work, You may not
>                                                    ^^^^^^
> |       impose any effective technological measures on the Adaptation
> |       that restrict the ability of a recipient of the Adaptation
> |       from You to exercise their rights granted under the License.
>
>      s/Perform the Work/Perform the Adaptation/
>
> ---> in clause 4(d) there's a little typo
>
> |       in the case of a Adaptation or Collection,
>                       ^^^
>
>      s/a Adaptation/an Adaptation/
>
> ---> in clause 5 there seems to be some confusion (shouldn't it be
>      "OR ABSENCE"?)
>
> |    OR THE PRESENCE OF ABSENCE OF ERRORS
>                     ^^^^
>
> ---> in Creative Commons Notice there seems to be a repeated sentence
>
> |  For the avoidance of doubt, this trademark restriction does not
> |  form part of this License. For the avoidance of doubt, this
>                              ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
> |  trademark restriction does not form part of the License.
>    ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>
>
>
>
> Thanks for your attention: I hope these issues can be fixed before
> the final texts of the new licenses are released...
>
>
> --
> But it is also tradition that times *must* and always
> do change, my friend.   -- from _Coming to America_
> ..................................................... Francesco Poli .
>  GnuPG key fpr == C979 F34B 27CE 5CD8 DC12  31B5 78F4 279B DD6D FCF4
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