Development of Creative Commons licenses

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

Hi all.

In a recent message[1] to the cc-licenses list, a new draft of CC-v3.0
licenses was announced.  The message included one document as
attachment: BY-SA v 3 (020907) (US).pdf

[1] https://lists.ibiblio.org/sympa/arc/cc-licenses/2007-February/005013.html

In the following I comment on that draft.
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:

|                                                      CC US license
|                                           Draft ­ December 1, 2006
|           Attribution-ShareAlike 3.0

This is the (US version of) CC-by-sa v3draft license, one of the two CC
licenses that have some hope to meet the Debian Free Software Guidelines
(DFSG from here on), the other one being CC-by.


Clause 1(b) states:

|  (b)  "Creative Commons Compatible License" means a license that is
|       listed at http://creativecommons.org/compatiblelicenses that:
|       (i) has been approved by Creative Commons as being essentially
|       equivalent to this License, including without limitation
|       because that license contains terms that have the same purpose,
|       meaning and effect as the License Elements of this License;
|       and, (ii) explicitly permits the relicensing of derivatives of
|       works made available under that license under this License.

It's worth noting that this list of "Compatible Licenses" can change in
time, even after an author has licensed his/her work under the CC-by-sa
license.  This mechanism may effectively modify the permissions granted
by that author *after* he/she licensed his/her work, independently of
his/her will: Creative Commons can decide that some other license L is
"equivalent" to CC-by-sa and thus allow the distribution[2] of
derivative works of CC-by-sa licensed works under the terms of L, even
if the author of the original CC-by-sa licensed work does not like
license L.  Maybe the original author does not agree with Creative
Commons that license L is "equivalent" to CC-by-sa, but there's nothing
he/she can do to stop the relicensing of derivative works of his/her
CC-by-sa licensed works.
This mechanism greatly weakens the copyleft of the CC-by-sa (assuming
that CC-by-sa is intended to be a copyleft license...).
Personally, I consider this flaw alone as enough to make me avoid
licensing my works under this license: when I decide that I want a
copyleft license, I don't want that derivative works can be relicensed
under yet unknown terms.

[2] see clause 4(b) later on


Clause 4(a) states, in part:

|       If You create a Collective Work, upon notice from any Licensor
|       You must, to the extent practicable, remove from the Collective
|       Work any credit as required by clause 4(c), as requested. If
|       You create a Derivative Work, upon notice from any Licensor You
|       must, to the extent practicable, remove from the Derivative
|       Work any credit as required by clause 4(c), as requested.

This is unchanged with respect to the previous drafts: I'm not yet
convinced that this clause meets the DFSG.
See my previous comments[3] if you need to read a more detailed
analysis.

[3] https://lists.ibiblio.org/sympa/arc/cc-licenses/2006-November/004472.html

In summary, I don't think that a license can (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).
Why?  Because 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.

Please note that I'm not advocating misattribution: stating the true
origin of a work (and explicitly clarifying that the original author
wrote the original work, while someone else based the derivative work on
it) is *not* misattribution.

Moreover, I'm not advocating the permission to hurt the reputation of
the original author: I believe that no reputation is being hurt, 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.


Clause 4(b) states, in part:

|  (b)  You may distribute, publicly display, publicly perform, or
|       publicly digitally perform a Derivative Work only under:
|       (i) the terms of this License; (ii) a later version of this
|       License with the same License Elements as this License;
|       (iii) the Creative Commons (Unported) 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-ShareAlike 3.0 Japan);
|       (iv) a Creative Commons Compatible License.

It's worth noting that CC licenses have a mandatory version-upgrade
mechanism and also a mandatory jurisdiction-change mechanism.
Now a mandatory relicensing-to-other-yet-unspecified-licenses mechanism
has been added, thus making the situation even worse, as I explained
above.

When I say "mandatory", I mean 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.
And now even under any yet unknown license that Creative Commons will
insert into the "list of Compatible Licenses".
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!
And I cannot review all the random licenses that will end up being
declared "Compatible", since I do not yet know which they are!  

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 (or "Compatible") 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.

This is, IMO, a serious flaw for a license that is (or seems to be)
intended to be a copyleft.


Clause 4(c) states, in part:

|       in the case of a Derivative Work or Collective Work, at a
|       minimum such credit will appear, if a credit for all
|       contributing authors of the Derivative Work or Collective
|       Work appears, then as part of these credits and in a manner
|       at least as prominent as the credits for the other
|       contributing authors.

This is unchanged with respect to the previous drafts: 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 still think that this restriction is excessive and fails to meet the
DFSG.

See my previous comments[4] if you need to read a more detailed
analysis.

[4] https://lists.ibiblio.org/sympa/arc/cc-licenses/2006-November/004472.html

In summary, suppose a novel is written by three co-authors who
respectively write, say, 21 chapters, 25 chapters, and N chapters, where
N is enough to grant the third co-author the author status, but still
non-negligibly smaller than 21 (maybe N is 1, or 2, or something like
that...).  In this scenario the third co-author must be credited as
prominently as the other two, which does not seem to be reasonable.

If the clause 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 so, unfortunately.




The following is a typo, or at least it seems to be:

---> in clause 1(g) there's a "Noncommercial" that should not be there,
since this is the CC-by-sa license:

|  (g)  "License Elements" means the following high-level license
|       attributes as selected by Licensor and indicated in the title
|       of this License: Attribution, Noncommercial, ShareAlike.
                                      ^^^^^^^^^^^^^


-- 
 http://frx.netsons.org/progs/scripts/refresh-pubring.html
 Need to refresh your keyring in a piecewise fashion?
..................................................... Francesco Poli .
 GnuPG key fpr == C979 F34B 27CE 5CD8 DC12  31B5 78F4 279B DD6D FCF4

Attachment: pgpR5W8GTMR85.pgp
Description: PGP signature