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Subject: Development of Creative Commons licenses

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  • From: James Grimmelmann <james AT>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT>
  • Subject: Re: [cc-licenses] Public Performance Clause & More ...
  • Date: Fri, 20 Jul 2007 08:29:48 -0400

azrael wrote:
> Hi All,
> I'm currently working in collaboration with some others on creating a
> methodology for Digital Forensic work, we want to publish publicly so that
> most people can benefit from the knowledge - we however want to keep
> control
> of the document for quality control purposes, and also to restrict it being
> sold, because ... well basically because we don't want that :-)
> We have a couple of questions regarding the CC licenses Attrib - No
> Commercial - No Derivs ...
> (1) Does No commercial prevent someone using our methodology to create a
> piece of work for profit ? E.g. Can a paid forensic examiner work a client
> case according to our methodology and report it according to guidelines
> that
> we set if we use the "No commercial" section ...

Yes. Copyright law itself doesn't reach far enough to stop them.
You're running up against the functionality problem; processes as such
aren't copyrightable, only descriptions of them. Even a copyright in
the format isn't sufficient -- there's a 19th century case (Baker v.
Selden) that copyright in an accounting system won't stop someone else
from publishing a book of forms that "interoperate" with the system.

You'd need something more like patent protection, or perhaps trade
secret. Trade secret is pretty much incompatible with using a CC
license, and with your goal of distributing the knowledge.

What your license will do is make sure that no one changes the
methodology as they distribute it far and wide, and also make sure that
no one distributing it will profit *from the distribution*.

> (2) If the above happens ( either for profit or not ... ) and the acquired
> results are presented in court, would this qualify as a "public
> performance"
> of the work, and would it then be licensed under the same terms ? (
> Obviously this is an impossible legal position ... )

It would (I think) be a public performance, but because of the answer to
(1), there wouldn't be a licensing issue. Note also that with a
BY-NC-ND license, there's no share-alike clause, so there'd be no
question about relicensing the in-court results under the same terms.
The reuse is either forbidden in the first place, or permissible and
whatever contributions the person using it made would be free and clear.

> (3) There are no issues with licensing a group work provided all
> contributors agree to the terms, am I correct in thinking that ? Or do we
> have to create some form of legal entity to license under ?

You are correct. It's definitely a best practice to get that agreement
in writing and to document the specific contributions made by everyone.


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