Development of Creative Commons licenses

[drew Roberts <zotz AT 100jamz.com>]

On Thursday 10 May 2007 08:26 am, Joachim Durchholz wrote:
> drew Roberts schrieb:
> >> One of the things that make CC licenses attractive is that they have
> >> been checked using the legal resources available to CC. Anybody who
> >> wishes to use a CC license can do so and rest assured that the license
> >> will do what he wants, and avoid the cost of legal counseling (if
> >> somebody gives his works away, he'll be particularly unwilling to incur
> >> legal costs for that anyway).
> >> I think this part of the strategy has unanimous consent.
> >
> > I think even at this fundamental a level there is not unanimous consent.
> > For instance, I am here because I want to see Free (libre) works created,
> > getting them for free (gratis) is nice and all, but I actually have an
> > interest in finding ways to help people make a living from creating Free
> > works and dealing in their Free works if they desire to make their living
> > doing so.
>
> None dissent about this part of the strategy that I can see. 

My reply was aimed more at this:

{
> CC is trying to encourage giving away works that are typically covered
> by copyright. 
}

I think that does not have unanimous consent.

I do think that providing standard licenses that have legal resources behind 
their creation is agreed to as far as I can see though.

Perhaps I misunderstood your meaning.

> Whatever 
> the goals, CC is doing many people a huge service simply by providing a
> set of licenses that have been thoroughly checked to mean the same thing
> to laymen and legal experts.

Yes.

> There's dissent about the scope of licenses should be provided, and
> dissent about the goals that such a set of licenses should have. But no
> dissent that providing checked licenses are a Good Thing.

No, as I said, if they are promoting giving away works, I am not in full 
support of that if it mean cutting down people trying to earn a living making 
Free Works.
>
> > Now language can be a funny thing, when you said, "CC is trying to
> > encourage giving away works that are typically covered by copyright" did
> > you mean giving away for free (gratis) or did you have something else in
> > mind?
>
> That was indeliberately vague, but I think it can stand as such.
> I wasn't trying to pursue an agenda here, I was trying to describe the
> current state of things with that, and I don't know exactly what CC had
> in mind.

Not saying you had any agenda in mind, just wanting to make sure I got your 
message right so that further discussion could proceed on mutual 
understanding if not agreement.
>
> >> This is also
> >> attractive for licensors because they will know that there will be just
> >> a minimum amount of misinterpretation.
> >
> > This is a plus too, but not getting that legal advice on works you are
> > giving away (gratis) can still result in gotchas where you think you get
> > the license and you really don't.
>
> That's why it is important that the CC licenses mean the same thing to
> laymen and legal experts.

Yes.

> The "common-sense" version of each license is clear enough though.

Yes, but there are some interesting surprises though.

> Sometimes people apply the wrong license, but only because they didn't
> actually read the terms and just chose by keyword. (I.e. the keywords
> can be misunderstood; I don't think the common-sense version can unless
> you have problems with language in general.)
>
> >> The third element is offering licenses that aren't really Commons
> >> licenses but that give those who wish to try the CC licenses some
> >> intermediate steps.
> >> This part of the strategy is controversial.
> >
> > It is, but I am not sure if we have yet pinned down the various reasons
> > and positions leading to the controversy.
> >
> >> The ND clause if far too
> >> popular for the taste of many, including Lawrence Lessing himself.
> >
> > Do you mean ND or NC here and below? For me, NC is at least as
> > controversial as ND.
>
> Sure. I was referring to ND just by example.
> I'm not even sure whether NC makes much sense. It doesn't define what
> "commercial" activity is, and drawing the line is a rather difficult
> business that requires a lot of legal language.
>
> >> There's also the example of the FSF that has made the strategic decision
> >> not to offer an ND variant of the GPL, forcing the users of its licenses
> >> to make a clear decision.
> >
> > They also have no NC variation. This is their reason for being after all.
> > To promote Free software, which has and protects the four freedoms they
> > list. By definition, they cannot offer NC and ND options.
>
> Sure.
> I didn't mention it because it didn't contribute to the point I was
> trying to make: that not offering the full spectrum can sway those
> who're half on your side to come the full way to your position.

Perhaps if CC were to offer all while strongly promoting only the Free there 
would not be as much concern. Also, if there were a Free CC brand to clearly 
distinguish between the Free and non-Free, it may work better.
>
> It's one of the things I dislike about the FSF. They're trying to draw
> me into their position even in those situations where I don't want to.

Well, sure they do. Just don't get drawn into things you don't agree with. I 
buy into Free Software. I may do so for Free Market reasons while they may 
have fomulated the license for socialist reasons or whatever. The license has 
its own philosophy stated and I think it works for what I want and it has 
proved to be a force in the arena.

> It's also an effective strategy. It's CC's obligation to decide whether
> they want to be nice or effective, and their judgement call whether
> being nice might be more effective in the very long run.

I don't see the FSF as not being nice. (They may or may not be.) There is a 
world of either FUD or serious misunderstanding surrounding the GPL though.
>
> >> On the minus side, this strategy has prevented the FSF from creating a
> >> license for those cases where ND would have been legitimate, polarizing
> >> the programmer community into those that are "pro" and "contra" and
> >> preventing an unideological discourse.
> >
> > I see this as a plus. CC needs something similar in my view. And it is
> > still possible to have a calm and respectful discourse even with the FSF
> > taking such a stand on the license side.
>
> It is possible, of course, but no other license has draw so much
> ideological debate.

Sure, because it is the one that makes demands of you if you want to 
sell/distribute the code or build upon the code and sell/distribute your 
work. Demands that you not restrict others just as you were not restricted. 
People want to be free to restrict others. Can you see a way around this 
issue?

> Of course, that may also be because the GPL is from people who see
> ideology as an important part of their work. 

Thereis that, but I am not sure you can make a copyleft license that will not 
have the same issues no matter how little ideology you have behind it.

And the stated ideology/philosophy can lead to trust where no stated 
ideaology 
can leave one uneasy.

> (Which isn't necessarily a 
> Bad Thing, sometimes the world needs ideologists to get stuff done; it
> just doesn't mean that the ideologists' views should be followed to the
> letter.)

Well, I am not gung ho to follow any person's views to the letter. And I 
don't 
recommend that course to anyone.
>
> >> a) CC should never offer more than five or six discernible elements, be
> >> they license modules that can be combined, or ready-made license
> >> combinations with a specific name such as PD.
> >> This means retracting most (if not all) special licenses and rewording
> >> the general license terms so that they cover the specific cases.
> >
> > Do you have suggestions? Less is certainly cleaner.
>
> I don't.
> The exact selection depends on what exactly the CC wishes to achieve,
> and what strategies it deems appropriate.

It would be interesting to to see this information laid out clearly.
>
> CC might follow the "proselytizing by polarizing" approach of RMS and
> retract everything that doesn't have an SA clause.

The FSF maintains a list of Free licenses and comments on them from their 
point of view.

They want to promote and protect Free Software. How can they go about doing 
this better than they currently do? (License wise.)

> Or it might continue with the ND and NC clauses.
>
> My personal idea would be to merge most of those specialty licenses back
> into the main licenses, by extending their language so that they cover
> the specialty cases.
> Right now we have a bewildering array of:
> * PD
> * Dev Nations
> * Sampling
> * Founder's Copyright
> * GPL
> * LGPL
> * Wiki
> * Music sharing
> Each is addressing entirely different issues, with different mechanisms,
> and with entirely different legal language in at least some cases. (Oh,
> and it's also
>
> >> For example, SA terms can be reworded to that it covers the intent of
> >> the GPL without becoming useless for other kinds of works, by adding
> >> legal fine print that the licensor grants access to the form of the work
> >> that he used to create (or derive) the work himself.
> >
> > So, a source code requirement of sorts. Is that you meaning here?
>
> Yes.
> I'd even want to say "make available all means needed to process that
> work". That would include exclusive patents and in-house software, and
> (hopefully) exclude things like software tools that one can get from
> other sources. That would need a whole bunch of legal fine print though,
> so I left that for later discussion.
> A propos "later discussion": Obviously, I was unable to follow my own
> advice here (get basic things out of the way before discussing software).

Ping me for that discussion if I miss it starting.
>
>  > If so, I
> >
> > hope we can formulate a good one as I would like to see one in SA.
>
> It might even be uncontroversial for the FSF.
> After all, such a clause would be useful for e.g. comics. If the
> original author worked with layers, somebody who wants to modify it
> should have access to the layers, too. You might have to resize speech
> bubbles, or replace those BLAM! words that didn't go into a speech
> bubble. (I'd *so* like to translate all those inscriptions as seen on,
> say, http://www.girlgeniusonline.com/cgi-bin/gg101.cgi?date=20050221 or
> on the first panel of
> http://www.girlgeniusonline.com/cgi-bin/gg101.cgi?date=20050302 , but
> it's such a lot of work...)

In an ideal situation, I want to see Free licenses, a Free toolchain, 
Free/unencumbered formats, a vibrant support community that operates in the 
open and is commited to Free, etc.

We take what we can get sometimes though.
>
> > It seems to me that each license might benefit from a preamble and
> > philosophy section.
>
> Ah, right. That information is interesting to more people than those
> here on the list, I overlooked that.
>
> >> c) As to the ND issue, it's not clear whether CC should continue to
> >> offer it or not. There seem to be good reasons to do either.
> >
> > Again, do you mean ND here, or NC?
>
> Both, actually. I hadn't though too much about the issue, but I used ND
> as a blanket term for "all the licenses that aren't really *Commons*
> licenses".

OK.

> Though both are fringe cases. They aren't very much of practical use for
> software, but they *are* useful for other kinds of works.

Well, I would prefer to see them be "unneeded" in other areas as well, but I 
can understand the financial situation that makes them attractive at least on 
the surface.
>
> >> I'd also like to invite those with whom I had serious flamewars,
> >> provided that we all can stick to the issues and leave out motives,
> >> backgrounds, or other personals.
> >
> > I don't know if you consider me to have been in a flame war, but I try
> > not to go that route. I am willing to go back and forth trying to reach
> > an understanding though.
>
> We *have* had our differences, but I attribute that more to everybody
> (including myself) being agitated than anything else.

Sure. Ido try not to beat dead horses. I also know that sometimes it may look 
different. In those cases, I think it is usually that I think there is still 
a lack of understanding.

I am happy to drop things if it is clear that we all understand each other 
properly but just disagree. While it looks like we still lack that 
understanding, I generally try to keep on... (That is a general we there and 
not personal to the two of us.)
>
> Actually, I was purposefully including myself in "we all". I can get
> into a temper if touched the wrong way, and that was at least part of
> what happened.
> That's also why I've been keeping my mouth mostly shut until today,
> simply to cool off and lurk a bit.

I know the feeling. I sometimes go off list to try and keep things cooler and 
less voluminous. I do wonder if that is healthy for the list in the long run 
though.
>
> Regards,
> Jo
> _______________________________________________

all the best,

drew

-- 
(da idea man)