Development of Creative Commons licenses

[Francesco Poli <frx AT firenze.linux.it>]

On Wed, 17 Jan 2007 10:47:18 -0800 Mia Garlick wrote:

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

Apologies accepted...

> 
> On Nov 12, 2006, at 8:51 AM, Francesco Poli wrote:
[...]
> > 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 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.

I understand this, but, as I said, I think that clarity on which parts
are NC-specific, SA-specific, and/or nonND-specific is unsatisfactory.

[...]
> >   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.

It forbids me to state a true fact in a modified version of the work,
namely that the modified version is based on the original work by the
original author.

> A licensee can modify to their hearts content, the  
> licensor just has the option not to have their name associated with
> it.

What do you mean by "associated with"?
Do you mean that the original author is held responsible for the content
of the modified work?  That his/her reputation can be hurt by the
content of the modified work?
I'm not at all convinced that this is the case, as long as it's clear
that the original author just created the original work, and that the
modified version was created by someone else by modifying the original
work.
And I think that "This Adaptation is based on the Work _foo_ by James O.
Hacker" clearly explains that James O. Hacker just created the Work
_foo_, while the Adaptation was created by someone else.

If by "associated with" you instead mean that there's some sort of
connection between the original author and the modified work, then I
think that this is true and unavoidable: even when the name of the
original author is purged from the modified work, some clear signs of
the original work may be recognized in the modified work.  For instance,
many parodies clearly show which original work they are based on: AFAIK,
many copyright laws grant the right to parody even for works where all
rights are reserved (but please remember that IANAL, hence any
corrections from real lawyers, and people with more expertise than me,
are welcome).

[...]
> > 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.

As I stated, I think that this is a significant restriction on the
freedom to modify the work.

[...]
> > 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's mandatory for the licensor, in the sense that a licensor cannot
choose to *not* grant this option to licensees.
In other words, I cannot release a work under the terms of CC-by-sa-v3.0
only: if I license the work under the terms of CC-by-sa-v3.0, I
*automatically* also license it under any later version of CC-by-sa and
any jurisdiction-specific variant of CC-by-sa-v3.0 and any later version
of that jurisdiction-specific variant.
That's a lot of different licenses, indeed.
I will *never* have enough time to review all the jurisdiction-specific
CC-by-sa-v3.0 licenses (even without taking into account that I should
learn a huge number of different languages and their legalese jargons!).
Moreover, I *cannot* review all the future versions, since they have not
yet been written!

All this means that I, as an author, would be licensing my work under
*totally unknown* terms, should I decide to license it under
CC-by-sa-v3.0!
I should trust *every and each* local Creative Commons committee, for
the present *and* the future, to always correctly preserve the copyleft
mechanism...
Some CC-by-sa licenses could be too restrictive for my tastes: my
copyleft would be destroyed, without any possibility for me of knowing
it.  Some other CC-by-sa licenses could be too permissive for my tastes:
my copyleft could again be destroyed (with one further licensing step),
without any possibility for me of knowing it.

> 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...

Well, maybe the harm of a "sue me in Scotland" clause could not crawl
back to the original licensor, but the copyleft weakening is still an
issue as explained above, IMHO.

> 
> >
> >
> > 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.

I take this as an official statement from Creative Commons, I hope I am
entitled to.

> 
> >
> >
> > 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.

OK, let's say that the contribution of Paul is big enough to grant him
the author status, but still smaller than Walter's and Cindy's ones
in a non negligible manner.  One chapter?  Two chapters?  Something like
that.  At that point Paul is an author and must be credited: is it
fair to require that his credit be "at least as prominent as the credits
for the other authors"?

> 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.

Even if copyright law treats authors in an "all or nothing" manner, is
it fair to require equivalent credit for all authors (and nothing for
non-author contributors)?

> 
> >
> > 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?

In the same way prominency is assessed!
I think that human judgement is needed even for checking whether two
credits are equally prominent, hence the current situation is no simpler
than the one I imagined.

[...]
> > 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.

Adjusted or dropped?
If adjusted, how?
If there's some text that is going to be included in CC-by-v3.0 and/or
in CC-by-sa-v3.0 that has not yet been publicly disclosed in a draft, I
would be very interested to see it disclosed ASAP...

> 
> >
> >
> >
> >
> > 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.
[...]

You're welcome.

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..................................................... Francesco Poli .
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