Development of Creative Commons licenses

[Terry Hancock <hancock AT anansispaceworks.com>]

Gregory Maxwell wrote:
> On Dec 2, 2007 9:24 PM, Fred Benenson <fred.benenson AT gmail.com> wrote:
>>Question for the lawyers here -- even if we *wanted* to add stronger
>>copyleft to a CC license, say creating CC-BY-SA+, could we?
>>
>>Isn't the whole problem here that the licenses rely on the various
>>definitions of "derivative works" for different mediums?

Well, IANAL, but...

This may or may not be included in the concept of copyleft as used by
the GPL, but I think the argument that the definition of "derivative" or
"copy" under copyright law constrains the extent of copyleft is false.

Copyleft is presented not as an alternative to copyright, but rather as
an alternative to *financial compensation*. Instead of charging a fee
for the license to use the copyrighted material, we insist on conditions
of use. Thus the limits are on what kind of fee can be charged for a
copyrighted work, not what works can be copyrighted.

So long as the use is not something which is otherwise allowed under
"fair use" or "fair dealing" provisions of copyright law, then, you need
a license to use the work. In principle, just about any
legally-admissible contract requirement can demanded as a condition of
that use (you are always free not to use the work -- too harsh a set of
requirements is like charging too much money for a work).

Of course, courts have in the past invalidated contracts on the basis
that they make "unreasonable" or "unexpected" demands that were not
understood by the party agreeing to the contract, and so invalidated
contracts. So, there's probably *some* limit on copyleft. But I'm
reasonably certain that "what could be considered a derivative under
copyright law" is not it.

So I think an SA+ license is definitely possible.

For it to be *desirable* though, I think it is essential that it treat
containing "collections" more liberally than it does "derivations".
That's a matter of keeping the license "free enough", not keeping it
"legally feasible".

While I do find there are times when publishing free-licensed images
alongside non-free text is desirable, this is not my main concern. For
such functionality, the CC-By license is nearly as good as CC-By-SA
anyway, so I agree with that point.

For me, the main fear is a collision between various copyleft
free-licenses, who all have essentially the same intent, but necessarily
have different implementations, because they are designed for different
creative domains.

For example, what about CC-By-SA images used as media in a GPL computer
game?  It would be quite easy for text intended to bind a text article
associated with illustrating By-SA images to also include that case. And
if it did, then it's possible that the image license would demand that
the program be licensed By-SA -- which even By-SA advocates say is
ill-advised, because programs are different media with different
requirements that must be considered.

We don't want to force the images to be GPL, either, because it doesn't
apply well to images. And we don't want to mess with dual-licenses if we
don't have to (this is surely why By-SA/GFDL compatibility is so
important to Wikimedia).

So, we want to keep copyleft from crossing certain domain barriers and
binding works in unreasonably restrictive ways. We risk making the
"commons" as difficult to navigate as the fenced-in world of
conventional copyright.

An "SA+" option would undoubtedly improve the incentive for some
producers, but it has to skirt this danger, IMHO, in order to be useful
for the public good.

Cheers,
Terry

-- 
Terry Hancock (hancock AT AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com