Development of Creative Commons licenses

[jonathon <jonathon.blake AT gmail.com>]

On Tue, Sep 15, 2009 at 21:40, Mike Linksvayer  wrote:

> the latter including CC NC licenses (probably most significantly 
> OpenCourseWare)., and especially in the CC NC case, lots of non-"project" 
> uses that don't involve suits.

Several reasons why you don't find much in the way of CC-NC related lawsuits:

* OpenCourseWare has a page that provides their (lawyer's)
interpretation of what the  NC  license means and requires.  As such,
any potential user can read that page, and the corresponding CC-By-NC
license, and then consult with an attorney, to obtain a reasonable
understanding of what they can do with that material, without running
afoul of OpenCourseWare's legal beagles.

I'll point out that the OpenCourseWare page on what the license
means, and requires, is discongruent with both the Creative Commons
Foundation page on that topic, and the Dutch collection society page
on that topic.  Nonetheless, If an NC content creator provides a page
that explains their understanding of the rights, responsibilities,
requirements, and meaning of the CC-BY-NC license, regardless of how
bizarre that might be, a potential user is at a much better position
to adhere to license, than would otherwise be the case. As  such, one
can argue that "best practices" for NC content, is that it includes
material that covers the content creators interpretation/understanding
of the license.

* In most (all?) court cases where a CC-BY-NC license was at issue,
the courts ruled in favour of the plaintiff. This implies that when it
goes to court, the plaintiff will prevail.  Much better to settle,
than fight it out;
* The affected parties settle out of court, and don't publicize the  dispute;

* The content creator does not learn/know about the infringing use.
The Virgin Mobile (Australia) case is a a good example of this. The
photographer learned about it from the model, who found out about it
from somebody on FaceBook. It was only at that  point that third
parties decided to try to find the other pictures used in Virgin
Mobiles campaign, and locate the  photographers.  Most (all?) pictures
were from Flickr, with the photographer's apparent legal address in a
country that was not within the British Commonwealth.  Whilst Virgin
Mobile didn't violate the  CC license, neither the photographers, nor
models had  any idea that they were  in that campaign, until several
months after it kicked off. (Virgin Mobile's failure was in not
obtaining  model releases or property releases.)  Call it chance that
the photographers  even learned that their photographs had been used.

jonathon