Development of Creative Commons licenses

[Gregory Maxwell <gmaxwell AT gmail.com>]

On Mon, Sep 16, 2013 at 4:34 PM, Kat Walsh <kat AT creativecommons.org> wrote:
> I hope that everyone has gotten a chance to read through draft 4 of 4.0
> BY-NC-SA, distributed a few days ago. The other 5 licenses are now posted
> along with it:

I have to say that I am really surprised and disappointed by the
changes in this latest draft, especially in that they are so
substantive and seem to have come without any public discussion on
cc-licenses.

> Attribution:
> In the Attribution section, the URI requirement now more closely resembles
> 3.0, in that URIs must be retained if supplied with the licensed material.
> The requirement to indicate modifications is now independent of the URI
> requirement, and indications of prior modifications to a licensed work must
> also be retained.

The URI requirement privileges hosting providers by allowing them to
terms-of-service affix an effective advertisement onto works.  The
result is legally ambiguous: what happens when works from multiple
sources are combined?  Do we end up having to maintain a long list of
URLs with every work and print them along with them?  If not then
isn't this term completely mooted by just setting up a pretextual host
with a TOS that overrides the url to wash the content through?

What happens when a hosting provider with terms of service URI
assignment mistreats its community of contributors and the vast
majority of the active ones find a new home, as we saw with
wikitravel? Must they continue to promote some old host who continues
to exploit the content that they wrote?

In the area of free software, licenses with advertising clauses are
not tolerated and are considered unfree (e.g. BSD with advertising
clause).

I urge creative commons to not facilitate exploitative land grabs by
powerful hosting providers where authors have little to no negotiating
power by at least revising this clause to say that it may not be set
by terms of service.

> In the ShareAlike licenses, there is now an express permission for
> downstream users to comply with all obligations to all upstream licensors
> with reference to the terms and conditions of the Adapter's License.

I don't think this could have been any more opaque if you'd encrypted
it before sending it. I know worrying about this NSA thing is now
fashionable, but for license discussion we should strive for clarity.

The actual text of the license is this:

> Every recipient of the Licensed Material from You from you automatically 
> receives an offer from the Licensor to exercise the Licensed Rights in the 
> Adapted Material subject to the terms and conditions of Your Adapter's 
> License.

Which utilizes the definitions:

"Adapter's License" means the license You apply to Your Copyright and
Similar Rights in Your contributions to Adapted Material.

and

"You" means the individual or entity exercising the Licensed Rights
under this Public License. Your has a corresponding meaning.

What I think(?) this text is saying if I create a CC-BY-SA-4 work and
I distribute it, and someone later makes an adaptation under a license
which I've never seen before, which may not even exist until moments
before the adaptation is distributed, and I might even consider
unconscionable, that I am granting the downstream user a license under
that license, no matter what.

Is this a misread? It's very unclear.  As written this sounds more
like a trapdoor BY license and not a copyleft.

[Beyond the generally problematic /apparently intended/ behavior, the
specific drafting used is so boundless that that the adapter's license
of unspecified terms would apply even in the case of an adaptation
created under an unlawfully-applied adapter's license. For example,
person A licenses under BY-SA, person B makes an adaptation under the
Exploitative Jerk License (unlawfully), and sells their work to party
C. You now wish to stop party C, but party C argues he enjoys the
rights you granted him under the Exploitative Jerk License.

The often tortured line between aggregation and adaptation further
complicates this, as it is already a norm for "clear adaptions" to be
made, like synced audio and video, where the adapting party offers
"[Their] Copyright and Similar Rights in [Their] contributions to
Adapted Material" under BY-SA incompatible terms for the purpose of
disaggregation.

This is important because it would often be non-freedom preserving
downstream commercial exploitation of an adaptation that a licensor
would seek to stop, not another author, though this is not my primary
complaint.]

[Also another drafting nit, b.1's use of the serial comma around
"must be a Creative Commons license, this version or later, with the
same License Elements, or a BY-SA Compatible License" allows a
misreading "must be (any) Creative commons license, or this version
license, or later-version with the same license elements, or a by-sa
compatible license" the misreading is intensified by the redundancy in
the correct reading.]

Having a licensor grant boundless and unspecified terms does not seem
to be in accord with Creative Commons' published intent for share
alike licenses to only permit use with terms which use tailored
restrictions to protect the freedoms enabled in the license. This is
especially significant in light of the fact that the apparent
functional difference in this text and the prior text is that it would
permit a later adaptation to permit activities over this work which
were expressly forbidden by the license the author consented to.

Beyond the basic risk of potentially undermining copyleft here, this
path would potentially open the door to future adaptations being lost
completely to the public when courts agree with copyright holders that
it would be unconscionable to uphold a blind license. (E.g. citing
from contract law: "One party cannot unilaterally modify a contract
without the consent of the other party" Union Pac v. Chi., Milwaukee,
St. Paul & Pacific R.R. 549 F.2d 114 (1976)), and due to an
irreconcilable difference between the adapting party and the original
licensors the adaption is deemed an unlawful copyright infringement.
(Keep in mind: Copyleft can not force you to free a work, it can just
make you guilty of copyright infringement and liable for damages if
you fail to.)

Is anyone aware of a single piece of US (or international) case law
supporting an argument that unspecified terms, with unspecified
boundaries, written at potentially a later date, by an unspecified
third party with no relationship to the licensor, with no evidence of
actual intent by the licensor (it's buried in cryptic text down in the
middle of the license unlike an intentional upgrade statement applied
deliberately by some authors in software), which contradict the terms
of the licensor's original agreement (required for this change to do
anything at all), and used without any clear consideration to the
licensor, were held to be a valid license?

I will gladly take a very large bet on no such case law existing or
ever existing, because this defies the senses.

In Creative Commons' capacity as legal experts acting in the best
interests of licensors (and other parties), I would hope that you
would advise me—if I were your client in a one time negotiation—not to
agree to such a open ended license. I think asking this kind of
question from the hypothetical perspective of each of the interested
parties (licensors, the public, service providers, etc.) should
generally be one of the most important tests for license terms.