Development of Creative Commons licenses

[drew Roberts <zotz AT 100jamz.com>]

On Wednesday 18 April 2012 17:26:33 Francesco Poli wrote:
> On Tue, 17 Apr 2012 11:14:44 -0400 drew Roberts wrote:
> > On Monday 16 April 2012 18:13:40 Francesco Poli wrote:
> > > On Mon, 16 Apr 2012 12:35:09 -0400 drew Roberts wrote:
>
> [...]
>
> > > > If it is a mere aggregate, surely there would be no resulting
> > > > copyright.
> > >
> > > Wait, the quoted GPLv3 license text is *defining* the term "aggregate",
> > > hence you cannot argue that it's wrong.
> >
> > Of course I can. If it defines ti in such a way that it fails to
> > accomplish what it set out to accomplish.
>
> I don't think it fails, but maybe you think it does, simply because you
> think it set out to accomplish a different goal... Anyway...


I am not sure it fails for software, which was its goal, I do think it fails 
for photos & images which is what I am specifically concerned with here 
although I have a more general interest as well.
>
> [...]
>
> > > > Make an aggregate of lots of Free works and several ARR works. The
> > > > ARR work(s) allow(s) restricting the compilation.
> > >
> > > But if there's at least one GPLv3-licensed work in the compilation,
> > > that particular individual work does *not* permit restricting the
> > > freedoms of its recipients (apart from what is stated in Section 7).
> > > Then, as a consequence, the freedoms of the recipients of the
> > > compilation cannot be restricted, or otherwise the compilation won't be
> > > considered an "aggregate", as far as the GPLv3 is concerned.
> >
> > I think I am beginning to see where we are seeing that language
> > differently.
> >
> > You are taking that language to mean that the aggregate must be at least
> > as Free as the GPLv3 if it contains a GPLv3 work.
>
> Yes, I think this is the correct interpretation. At least, this is my
> reading of the license text.
>
> > If that is so, then an
> > aggregate can only contain Free works. Fine.
>
> No, it may include non-free works, but the *aggregate* itself and its
> resulting copyright (if any) cannot restrict the freedoms of the
> recipients beyond what is allowed by the GPLv3.

But all I have to do to "defeat" that is to include some of my own ARR works 
in the aggregate or "friends'" ARR works and I can put myself in a position 
to do things which you cannot and in which I can sue you if you try. I don't 
use the copyright on the aggregate to restrict you. I use the copyright on 
one of the aggregated parts to restrict you.
>
> This means that you can take an aggregate containing the GPLv3-licensed
> work, some other Free works and some non-free works, purge the non-free
> works, (possibly add more Free works and/or modify any Free work), and
> thus obtain a compilation of Free works.
> The person who originally created the first aggregate cannot use its
> resulting copyright to sue you, claiming that you created an
> unauthorized derivative of the original aggregate.
>
> This is how I read the clause.
>
> > I am reading it that you can restrict as much as any part allows. In that
> > case I am not restricting beyond what is allowed by that work.
> >
> > Hmmm. But i am restricting beyond what is allowed by others.
> >
> > I need to think on this some more. If this is truly the case, why are you
> > arguing against my language which is basically the same requirement?
>
> Because you seem to also want to mandate that *all the other works* in
> the aggregate are Free.

Not for mere aggregation. There would be no copyright in such a case and Free 
and non-Free works could happily exist in such an aggregate. It is where 
something more than mere aggregation is going on that I want to insist one 
Free siblings and a Free parent.

> This is like a work whose license insists that all the other packages
> in a GNU/Linux distro that includes the work must be Free.

I don't see this as the same at all.

> Such a work is not Free: it fails DFSG#9, since its license
> contaminates unrelated works, just because they are included in the
> same aggregation.

It does not contaminate any works at all. It just says what kind of works are 
acceptable in what kind of aggregates.

As I said before and please deal with this point if you rebut this bit again, 
the works may have started out as unrelated works but the person making the 
creative aggregate and obtaining a copyright on the same related them by his 
creative act.

A person randomly including works on the same medium rather than creatively 
doing so would not be making them related in the same way.
>
> > > > In my thinking, surely something that is merely an aggregate does not
> > > > deserve copyright protection and so my thinking would not kick in.
> > > > But, if copyright law gives the aggregate/compilation/collection
> > > > copyright protection then the law thinks it is more than mere
> > > > aggregation and so my thinking / proposal would kick in.
> > >
> > > But when the compilation is not mere aggregation, the GPLv2 insists
> > > that the compilation is licensed as a whole under the terms of the
> > > GPLv2.
> >
> > But BY-SA does not match that. (Or defines mere aggregation differently?)
>
> I think you are correct that CC-by-sa does not mandate that.
> But this is no big news: CC-by-sa implements a weaker copyleft
> mechanism than the GPL, in many (or all?) respects.
> CC-by-sa does not even have a source availability requirement...

Ah, but it is one of my aims for BY-SA to get a stronger copyleft in this 
round. So, I know it is not big news but it is a big concern of mine that the 
problem / issue get fixed.
>
> > > And the GPLv3 has a similar provision, but with a slight change: a
> > > compilation may include GPLv3-licensed works together with incompatible
> > > works (such as ARR ones),
> >
> > No it would not allow that combination. The copyright on the ARR work
> > would restrict the users Freedom beyond that the GPLv3 would allow (in
> > your take.)
>
> As explained above, it would allow that compilation, as long as the
> copyright on the compilation structure (if any) is not be used to
> restrict the recipients' freedoms beyond what the GPLv3 allows.
> Individual works included in the compilation may be non-free, but the
> compilation structure must not restrict the recipients' freedoms.

See above for a simple way to defeat this and restrict freedoms anyway.
>
> > In my take to this point, it would allow it and that is why the language
> > is flawed.
>
> It would allow it, on purpose.
> Otherwise it would contaminate unrelated works, just because they are
> distributed together.

Again, it would not contaminate anything.
>
> > Which is it?
> >
> > > as long as the compilation and its resulting
> > > copyright (if any) are not used to restrict the freedoms of the
> > > recipients.
> > > Otherwise, the compilation has to be licensed as a whole under the
> > > GPLv3.
> > >
> > > Hence, I think that the scenarios you would like to disallow are
> > > actually *not* permitted with GPL-licensed works.
> >
> > Or are you contemplating ARR works which will behave as Free works?
> >
> > A makes a GPLv3 work. B makes and ARR work. C makes an aggregate
> > containing A and B's works. He gets a copyright on the aggregate. He does
> > not intend to enforce his copyright. Now B's behaviour controls whether
> > C's aggregate is acceptable or not?
>
> No, as long as C does not restrict the recipients' freedoms through his
> copyright on the compilation, the compilation actually qualifies as an
> "aggregate", as defined in the GPLv3, and the GPLv3 does not mandate
> anything regarding B's work.

What if the ARR work in the aggregate was a preexisting work of C and not of 
B? And what if B used the copyright on that work and not the newcopyright on 
the aggregate to restrict the recipients' freedoms?
>
> At least this is how I read the GPLv3.
>
> [...]
>
> > > I am more and more convinced that what you want is *exactly* what the
> > > GPL (especially the GPLv2) does, it's just that you don't realize
> > > it...  ;-)
> >
> > Help me realize it then.
>
> I am trying as hard as I possibly can!   ;-)

I hear you, so am I.
>
> [...]
>
> > > > > then the GPL license
> > > > > of one of the included works does not contaminate the rest
> > > > > (otherwise it would fail to meet the Debian Free Software Guideline
> > > > > #9);
> > > >
> > > > What I propose for BY-SA would not make the other parts be BY-SA, it
> > > > would just require that they be Free. And that the umbrella copyright
> > > > be BY-SA if possible, other copyleft Free second preference, and
> > > > permissive Free as a last resort. Non-Free not allowed.
> > > >
> > > > Would Debian really consider it non-Free to forbid non-Freedom?
> > >
> > > Yes, if the non-freeness is forbidden on unrelated works (see DFSG#9).
> >
> > Do you maintain they are unrelated works? They are *being* related by the
> > compiler/aggregator. They may have begun as unrelated works, but they are
> > now related.
>
> They are unrelated just as
> http://packages.debian.org/wheezy/linux-image-3.2.0-2-amd64
> and
> http://packages.debian.org/wheezy/apache2.2-bin
>
> Please note that I picked 2 packages belonging to the same distribution
> (Debian wheezy) and that will be distributed on the same medium (a DVD
> image, for instance), as soon as this distribution is released.
> These 2 packages have mutually *incompatible* licenses (GPLv2 and
> Apache2) and one of the two licenses is the GPL: yet the GPL does not
> insist that the other package is available under the terms of the GPL.

A book with text and matching photos are not unrelated in the same way. 
Sorry, 
they just aren't. Those of us coming from the Free Software world and the 
copyleft part especially may be so steeped in compilation and derivatives 
that we think that this is the only valid test for copyleft licenses to 
insist on Freedom for "users" but having been operating in the Free 
Art/Music/Culture world for a few years now, I am convinced that it is not 
the only valid test.

In this case:

Use random selection and put what you want on a medium / in a collection.

Use creative selection and keep BY-SA things associated only with other Free 
things on a medium / in a collection.

all the best,

drew