Development of Creative Commons licenses

[David Chart <bydosa AT davidchart.com>]

On 2012/05/09, at 6:13, Rob Myers wrote:

> I would like to discuss the scope of ShareAlike in 4.0d1.
> 
> 
> I believe that ShareAlike should do the following things:
> 
> A. Protect the ability to quote and critique under fair use within a 
> ShareAlike work, to the degree that fair use / fair dealing exists in 
> any given jurisdiction.

In other words, preserve the ability to embed non-free material in a 
ShareAlike work.

> 
> B. Prevent the mixing of ShareAlike and non-sharealike materials in the 
> same work or usage, encouraging work to be placed under ShareAlike in 
> its entirety whenever it possibly can be and preventing its use where it 
> cannot be.

In other words, remove the ability to embed non-free material in a ShareAlike 
work.

I suspect that this is going to be difficult to achieve. It isn't obviously 
impossible, despite my phrasing, because you might be able to enforce a 
maximum proportion of non-free material, or a certain relationship between 
the free and non-free, but it would be difficult to draft, at best.

> 
> I'm trying to understand the extent to which it is possible for SA to 
> achieve this in principle and the extent to which 4.0d1 does so in practice.
> 
> 
> Given this I have tried to think through how ShareAlike works in the 
> following scenarios:
> 
> 1. A commercial blogger posts a short science fiction story by another 
> author on their blog in order to comment on it. The blog is licensed 
> BY-NC-SA.
> 
> This should be allowed under Fair Use (just about) as criticism.
> 
> 2. A student writes an essay critiquing a famous and still copyrighted 
> artwork. They include illustrations of the artwork to support their 
> critique. The essay is licensed BY-SA.
> 
> This should be allowed under Fair Use as criticism and academic use.

My understanding is that neither of these are legal under current copyright 
law. (I am not a lawyer, this is not legal advice, I am not in the USA so I'm 
not sure I need to say that.) Fair use almost never allows reproduction of a 
whole work; you are only allowed small extracts.

> 
> 3. A games company licenses (for the sake of argument) the Star Wars 
> franchise and produce a role-playing game rulebook featuring the 
> characters and locations from that franchise. The game is licensed BY-SA 
> *but* it is made clear that any text or images mentioning the characters 
> and settings of the franchise are *not* BY-SA.
> 
> This results in a work that is hybrid free/non-free, but then the 
> authors do not have any option to create a free work.
> 
> 4. A games company designs their own generic fantasy setting (think Lord 
> of The Rings / Narnia / Game Of Thrones / etc.) and produce a 
> role-playing game rulebook featuring the characters and locations from 
> that franchise. The game is licensed BY-SA *but* it is made clear that 
> any text or images mentioning the characters and settings are *not* BY-SA.
> 
> This results in a work that is non-free, and the authors have 
> *deliberately* structured the work to make it so. BY-SA should not allow 
> this.
> 

I don't think you will be able to distinguish these two. In most cases like 
(3), the copyright goes to the licensing body, so the copyright holder in the 
free material has the right to license everything, so you have the same 
situation as (4). (When I say "most", I'm relying on my experience writing 
for Warhammer Fantasy Roleplay and the Decipher Lord of the Rings RPG, and my 
memory... It was certainly true for WFRP.)

Even if you could distinguish them, it is trivially easy for someone to set 
up a dummy company to hold the rights to the IP that they do not want to 
free, so that, legally, they are in situation 3.

In the particular case of RPGs, I think it would be good for BY-SA to forbid 
3/4, because otherwise you should be using the Open Game License, which was 
designed to allow them and is the license almost everyone uses. Proliferation 
of licenses that are trying to do the same thing should definitely be avoided.

> 5. An author or magazine use a BY-SA image as an illustration for a 
> story or article. The story or article is "all rights reserved".
> 
> This results in a non-free work using a BY-SA work as part of its 
> presentation / value proposition. BY-SA should not allow this. It is the 
> minimal case that photographers, Wikipedia, and Drew would all need to 
> be covered by BY-SA.

6. A collection of short stories, some of which are BY-SA and some of which 
are ARR.

Your standard would forbid this, because it results in a non-free work using 
a BY-SA work as part of its presentation / value proposition. However, this 
is, to me, a pretty clear and paradigmatic example of an aggregate.

I think Drew suggested that an aggregate should not count if the order of the 
contents does not matter. However, (6) would be fine under that condition, 
because you can certainly change the order of stories in a collection. A 
coffee table book of photographs would also be OK, because, again, you can 
change the order. Depending on how you define "order", this either would 
affect Linux distributions, or wouldn't affect material in digital form. The 
order of binaries on the CD doesn't matter, but the order in which they are 
loaded into memory does. If you are allowed to distribute things that are 
only ordered when loaded, it is trivial to add a bit of software that 
produces the ordering you want when the material is viewed, but leaves it in 
a random order on the disk.

I think the only way to get the protection required by photographers is to 
forbid aggregates, unless all works in the aggregate are licensed under one 
of a set of specified free licenses. Note that this would also, very clearly, 
prohibit 1 & 2, and I really can't see any way to permit 1 & 2 without also 
permitting 5; the structures of the works are the same. In both cases, the CC 
work is a response to the ARR work. Admittedly, in case 5 the response is one 
of selection rather than creation, but I'm really dubious about being able to 
build a legal distinction on that basis. At least not one that is easy to 
understand. Cases 4, 5, and 6 are ruled out, and so is case 3.

This would raise the problem of what counts as an aggregate. Would it be 
legal to host BY-SA works on a web server that also hosted ARR material? To 
sell a BY-SA book in a shop that also sells ARR books? To sell a collection 
of BY-SA works together with a collection of ARR works, in separate bindings 
but one slipcase?

I'm not at all unsympathetic to the idea of a BY-SA-NA (No Aggregates) 
license, provided a sensible definition of an aggregate can be found. I 
wouldn't even be strongly opposed to the condition being included in SA; it's 
a major change to the licensing terms, but people can still use version 3 if 
they want to. I think a separate license might be better, however, and if 
there is a clear demand from photographers for such a license, it might be 
justifiable.

-- 
David Chart
http://www.davidchart.com/