Development of Creative Commons licenses

[Gregory Maxwell <gmaxwell AT gmail.com>]

Regarding http://creativecommons.org/weblog/entry/17127

I don't know that "strong agreement on the commerciality of certain
use cases" is very well supported by the NC survey data.

There are a couple of different data points which suggest that
agreement on the meaning of the license itself, or on the meaning of
"non-commercial", is on the order of 90% at best. (For example,
agreement on 'making money' as a criterion, the statement that the
license text matches their expectations, or the number of users who
changed their definition after the survey.)

While 90% is surely a significant supermajority, licenses can cause
harm if they do not result in a very clear understanding. Even a few
hours of attorney time can easily outweigh the benefit gained by using
a work and statutory damages start at hundreds of dollars. Because of
magnitude of the harm when there is a misunderstanding is non-trivial
I think the potential for misunderstanding must be very low for a
license to achieve its intended purpose.

Consider this kind of overwhelming majority: 90% think X, 10% think
!X. 18% of random pairings of creators and users will have conflicting
understandings of what the license means, or almost 1 in 5.

Even if an author is in the 90% majority—if that author has only 7
users, there is a 52% chance of at least one misunderstanding. With 29
users there is a 95% chance, and with 44 users there is a 99% chance.
If the author is in the minority, a 99% chance of having a
misunderstanding over allowable uses happens with only two users.

If an author only expects to have 7 users, why not just consider each
case on its own merits and permit uses individually? If an author
isn't concerned about license violations why don't they use the most
permissive licenses? Most authors reported that they have been
contacted. I am frequently contacted requesting permission for
activities which are unequivocally permitted by the licenses I use.

With only 90% agreeing on a particular criterion… I can only guess
that there aren't masses of disputes because people don't enforce,
even when they don't agree. People tolerate the 'misuse', or they are
not paying attention; sometimes they give up publishing. Nice guys
don't sue (or issue takedowns). But ifone off negotiations and "nice
guys don't sue" are what really keeps the system working, why bother
having a public license?

It would have been nice if the survey had some calibration points: do
people understand and agree on what CC-BY and CC-BY-ND require?  I
strongly believe that they do, at least after minimal exposure to
those licenses, but I have no data. The only disagreement I've seen
for CC-BY is confusion created by the 'human readable' "must attribute
the work in the manner specified by the author" being understood
literally by authors instead of as "must attribute the work in the
manner specified in the license text", resulting in claims of license
violation because attribution was not provided in 40pt blinking text.
Though "anecdote" isn't a synonym for "data", so I really don't know.
(And… it's hard to tell from experience because most problems are
created by people completely ignoring their copyright-related
obligations)

At some level of disagreement about the meaning of a license, using it
will do more harm than good by inspiring disagreements. Where is that
threshold?

As far as I can tell, personal use is by far more popular than than
other forms (i.e. remix, verbatim redistribution of someone else's
work); while this doesn't appear to be addressed directly in the
survey, most respondents classified themselves primarily as users.
Wouldn't a "private, personal use only + contact me for other options"
cover the overwhelming majority of the need for NC, while closing off
many opportunities for misunderstanding?