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cc-licenses - Re: [cc-licenses] can someone check this wrapper for me?

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Subject: Development of Creative Commons licenses

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  • From: Terry Hancock <hancock AT>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT>
  • Subject: Re: [cc-licenses] can someone check this wrapper for me?
  • Date: Thu, 26 Jul 2007 15:55:34 -0500

B. Jean wrote:
> About the use by network, as google does,

I'll defer to more knowledgeable people on that point. I only mentioned
it, because this is the only context in which I've heard the idea of
"public performance" of a work of software to be defined.

> Next, the GNU GPL v2 state : " Activities other than copying,
> distribution and modification are not covered by this License [...] ".
> Theses words ('Copying', 'distribution', 'modification') are "terms of
> law", ie. they have a specific (copyright) meaning which can't be
> interpreted - copyright law isn't my specialty, but this thinking is
> share with US's lawyers (like Rosen). You have two type of communication
> : indirect (if you reproduce, and you distribute the copy), and direct
> (you make the work publicly clearly visible).

But here's the problem:

What HTTP literally does is the former case "you reproduce, and you
distribute the copy". This is what a web server actually does: your
browser sends a request for a copy of the work and the server makes a
copy and sends it to your browser.

You may have the idea that a website is a single copy of a work which is
"publicly clearly visible", but that is at best an illusion. It is in no
way technically true.*

If the law wants to treat web publication as a "public performance" then
it is attempting to participate in the illusion by making an exception,
not sticking to the underlying facts. Clearly, which approach the law
takes is going to be a matter for local jurisdictions to decide (which
matters more, the viewer's perception or the objective facts?).

I think that in the US, at least, it is likely that the technical fact
of copying and redistributing the work is what dominates, and I'm sure
this is how the FSF would've seen things when they wrote the license
(except of course, that the web didn't exist then!). They tend to stick
very close to the technical realities of software when they think about
the legal consequences.


I'm still not a lawyer. :-)

*One could possibly draw distinctions based on whether the work is
delivered in a single request or in many, but I'm not really sure the
distinction would matter. And even if it did matter, where exactly the
line should be drawn.

Terry Hancock (hancock AT
Anansi Spaceworks

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