Development of Creative Commons licenses

[Sarah Pearson <sarah AT creativecommons.org>]

Hi Rob -- Thanks for the comments! A few thoughts inline. 

On Sat, Apr 7, 2012 at 10:12 AM, Rob Myers <rob AT robmyers.org> wrote:

General Points
==============

* I agree with Luis, the new license looks great. It is very easy to read.



* I am concerned about the various explicit statements that the license
makes about not covering other rights (especially patents) in the light
of OSI's discussion of CC0:

http://projects.opensource.org/pipermail/license-review/2012-February/000231.html

It may be best simply to mention model releases.

Interesting point. One thing to note: in contrast to CC0 (which can be used for both code or creative works), the licenses are not intended to be used on code. This makes the issue regarding reservation of patent rights somewhat less of a concern because the _expression_ v. idea/functionality line is more distinct in this context.

* I am concerned about the scope of ShareAlike, as indicated by my notes
on 1.d below. Both from the point of view being a strong proponent of
copyleft, and from the point of view of practicality.





Specific Points
===============

* Preamble:"To the extent this Public License may be considered a contract,"

I assume this careful phrasing will avoid the license being considered a
contract in the US:

http://lwn.net/Articles/61292/



* Preamble: "This Public License does not affect third party rights in
the Licensed Work."

What does this mean? How could the license affect third party rights?

This sentence is not intended to have any legal effect. It is just a reminder to licensees that third parties may have rights in the work and that those need to be cleared separately. 

* Preamble: "Additionally, You are responsible for complying with other
laws that may apply"

I assume that this doesn't fall foul of the same problem as the UK OGL,
which mentions *specific* *national* laws:

http://lists.okfn.org/pipermail/od-discuss/2011-October/000064.html

Correct. Similar to the sentence about third party rights, this is simply designed to be a reminder to licensees that they may have obligations under other laws outside of the license. This is different from the OGL, which includes the provision about complying with particular laws as a condition of the license. 

* 1.d: "The Licensed Work may be accompanied by or integrated with other
work, content or material not covered by this Public License, such as
public domain content or works owned by third parties."

What does "accompanied" mean?

What does "integrated" mean?

Is "may be" a warning or a grant of permission?

On the one hand this makes clear that reblogging or critiquing ARR work
in a CC context isn't an attempt to CC license it. Which is good.

On the other, it does make it clear that BY-SA is a *very* weak
copyleft, going further than the FDL and more akin to the Open Gaming
License in its ability to interleave non-free material. Which may be bad.

Good questions. This sentence is intended to clarify that the license only covers the components of the work original to licensor. It is simply designed to be a reminder to licensees that any public domain or third party material is not covered by the license. (Licensors can only license what they own or have explicit permission to license.) This is how CC licenses have always worked, and it is not intended to change the scope in any way. It should have no effect on the strength/weakness of the SA provision or otherwise.
 

If BY-SA is very weak copyleft and may accompany ARR work, what does
this mean for "stronger copyleft", as per Drew, Wikipedia and the FSF?

And how would this affect GPL compatibility?

We are initiating a conversation with FSF about one-way compatibility between 4.0 and GPLv.3, so this and other specific provisions will be discussed in detail on this mailing list.
 

* 2.a.3: "where the Licensed Work is a database, in addition to the
above, extract and reuse contents of the Licensed Work"

This creates an incompatible copyleft with the ODbL. At present, ODbL
data may be used to produce BY-SA works.

Can you explain in more detail? I'm not sure I understand the incompatibility concerns here. 

* 2.b.1 "To the extent possible and necessary to allow You to reasonably
exercise the rights granted to You under this Public License, Licensor
waives or, where not permissible, agrees not to assert:

(i) Licensor’s moral rights in the Licensed Work; however, Licensor
retains all other moral rights Licensor has in the Licensed Work; and"

I like this.

Is the fact that it creates an uneven standard internationally, where
previous versions harmonized things more, a problem or a valid response
to moral rights as a limit on free culture?

What "other moral rights"? I can't parse the second part of (i).

The goal in the moral rights provision was to give all licensees (worldwide) the rights they need to exercise the rights granted to them under the license. Therefore, any moral rights that would potentially interfere with the license grant (for example, right to receive attribution or the right to withdraw your work) are waived or not asserted. The retainer of "other moral rights" is intended to cover any moral rights that would not be affected by the licensee exercising his/her rights under the license. (e.g., the right to prevent massive mutilation of the work)
 

* 3.a.1: "If You Share the Licensed Work or an Adaptation, You must
provide, in any reasonable manner based on the medium or means You are
using..."

Reasonable as defined by the licensor or by the licensee? Unreasonable
licensor attribution demands have been a problem for Wikipedia iirc.

Reasonableness is typically determined under an objective standard, but you raise a very valid concern. Any thoughts on how to make this workable?

* 4.a, from the notes: "Removed from this draft the portion of 3.0
Section 4(a) disallowing restrictions to be added to license (also
removed from SA provision). These will be addressed in Additional Terms
proposal in later 4.0 draft."

I would urge caution in allowing additional restrictions, and draw
people's attention to the GPLv3's handling of them:

http://www.gnu.org/licenses/gpl.html

"All other non-permissive additional terms are considered “further
restrictions” within the meaning of section 10. If the Program as you
received it, or any part of it, contains a notice stating that it is
governed by this License along with a term that is a further
restriction, you may remove that term."

Great point. The Additional Terms provision we are planning to add to v.4 will be intended to allow only (1) additional permissions (similar to the CC+ framework); (2) additional terms that apply to licensors/licensees (e.g., alternative dispute mechanisms); and (3) changed terms (e.g., adding licensor warranties). The provision will also explicitly make it clear that licensors may not add additional restrictions to CC licenses. We will definitely use the GPLv.3 provision as a reference as we develop this provision.

* 5.a "If You fail to comply with any conditions of this Public License,
this Public License will terminate automatically"

Is it worth having a GPLv3-style compliance window?

This is definitely something we are considering, but we have put the discussion on hold until we see how the license conditions are finalized in terms of flexibility and complexity. (The easier it is to comply, the less of a need we will have to soften the termination provision.)

- Rob.
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