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  • From: Andres Guadamuz <anduril13 AT gmail.com>
  • To: cc-licenses AT lists.ibiblio.org
  • Subject: Re: [cc-licenses] Removal of a clause in non-SA licenses?
  • Date: Thu, 12 Jan 2012 06:23:36 -0600

Hi Tim,

I acknowledge that a very narrow reading of the clause could lead one to believe that proprietary formats are excluded, but I do not believe that is the intention of the licence.


This licence is simply using the legal definition of a technological protection measure found in international treaties and transposed into national legislation, so any legal interpretation of the clause will understand that we are talking about TPMs, and not formats as such.

I agree that the ambiguity could be fixed with a clearer drafting.

Best Regards,

Andres

On 11/01/2012 17:25, Tim Cas wrote:
Hey there; I am new to the list and thus don't know if this has already
been mentioned or not, but there is a certain clause in CC-BY-* licenses
(except for -SA and possibly -NC) that keeps bothering me:

It is listed under 4.a (emphasis mine):
/You may Distribute or Publicly Perform the Work only under the terms of
this License. You must include a copy of, or the Uniform Resource
Identifier (URI) for, this License with every copy of the Work You
Distribute or Publicly Perform. You may not offer or impose any terms on
the Work that restrict the terms of this License or the ability of the
recipient of the Work to exercise the rights granted to that recipient
under the terms of the License. You may not sublicense the Work. You
must keep intact all notices that refer to this License and to the
disclaimer of warranties with every copy of the Work You Distribute or
Publicly Perform. When You Distribute or Publicly Perform the Work, *You
may not impose any effective technological measures on the Work that
restrict the ability of a recipient of the Work from You to exercise the
rights granted to that recipient under the terms of the License.* This
Section 4(a) applies to the Work as incorporated in a Collection, but
this does not require the Collection apart from the Work itself to be
made subject to the terms of this License. If You create a Collection,
upon notice from any Licensor You must, to the extent practicable,
remove from the Collection any credit as required by Section 4(b), as
requested. If You create an Adaptation, upon notice from any Licensor
You must, to the extent practicable, remove from the Adaptation any
credit as required by Section 4(b), as requested./

In case the mailing list or your email client has stripped the bold
tags, here is the emphasis again:
/*You may not impose any effective technological measures on the Work
that restrict the ability of a recipient of the Work from You to
exercise the rights granted to that recipient under the terms of the
License.*/

I am not a lawyer, but the way I see it, this imposes restrictions on
technological mechanisms for copying and distribution. For example, from
what I gather, software could not use a proprietary format for this
since that imposes such a restriction. Note that a choice of proprietary
formats is not necessarily malicious intent - for example, the
proprietary format might simply be more efficient (in one or more
aspects) to the original, or simply be the native format on the
platform. One such example is Kindle's format - authors don't have much
choice publishing for that platform, since Kindle does not support EPUB;
the only alternative is an outdated format with half-broken support
(disclaimer: I do not own a Kindle and thus do not know if the situation
has changed - had it changed, however, I would probably have known as I
am keeping taps on this).

Of course, this could be misused for DRM, but although I myself am
against DRM, this is nevertheless probably not what the author intends
when they release their software under CC-BY-* (-SA and /possibly/ -NC
notwithstanding).

Think about it - if the authors were worried about someone releasing
this in (say) a proprietary format, wouldn't have they picked the -SA
license in the first place? And if they were worried about DRM, wouldn't
have they picked -NC?



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