Development of Creative Commons licenses

[Sarah Pearson <sarah AT creativecommons.org>]

On Mon, Sep 16, 2013 at 10:03 PM, Gregory Maxwell <gmaxwell AT gmail.com> wrote:

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.

These changes are, in large part, a result of community reactions to the last draft, including input we received at the CC Global Summit last month. The formal public discussion on these issues is happening now. Thanks for weighing in. Some thoughts and responses inline below.

 

> 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 d3, we limited the URI requirement to situations where the licensed material was modified, and the reaction was largely negative. We heard from a wide variety of adopters that the URI requirement was important in all cases, not just where the material is modified. The reversion back to the 3.0 requirement in this draft is a response to that reaction.

Use of the requirement for advertising purposes is certainly not the intent, but it is a danger with this approach.  To my knowledge, we have not heard of a lot of real-life abuse of the URI requirement in connection with version 3.0, but that does not mean it does not occur. We will be interested to hear if others are leery of maintaining this requirement from 3.0.

Is there a reason you think indicating a URI via terms of service is particularly problematic? Why is it worse than indicating a URI in a license notice, for example?

 

> 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.

This is partially correct. If you create a BY-SA 4.0 work, someone can adapt your work and apply BY-SA 5.0. Someone downstream can use the terms of 5.0 to attribute you and the adapter when they are using the adaptation. If they extract only your work from the adaptation (where that is possible)[FN], then the terms of the original license (BY-SA 4.0) apply. This concept is a difficult one to convey in plain language, so we recognize the clause in d4 may not be the right way of expressing it. We will continue to think about ways of making it more clear and are all ears if you or others have suggestions. 

[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.

This is an interesting point. Perhaps one way of fixing this hole is to add something to the definition of Adapter’s License that makes it clear something only qualifies if it is applied in accordance with the terms of the license? (e.g., “Adapter's License means the license You apply to Your Copyright and Similar Rights in Your contributions to Adapted Material in accordance with the terms and conditions of this Public 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.

I’m not sure I follow this. Can you explain further?

 

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.]

Duly noted. We will fix the phrasing/grammar here to make it clear.

 

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.

Again, I’m not sure I follow your reasoning here. Under ShareAlike 4.0 as drafted, it is not the case that there are boundless possibilities for licensing adaptations. The only licenses that an adapter may apply are later versions or ports of BY-SA. [Eventually, it may be the case that adapters can apply a license deemed a BY-SA Compatible License, but there are no such licenses to date. This designation would only occur after a thorough vetting and public discussion. One of the major considerations in such a compatibility process will be whether SA licensors would feel that their expectations are being upheld by the other license.]  

 

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.

We know of no case law specifically upholding an upgrade clause, but certainly many established open source licenses include variations of them. (e.g., GPL v3) It was not our intent to bury this provision. We included it in Section 2(a)(5) because it seemed to fit most logically with the other provisions relating to downstream use. The goal is to make it as clear as possible, and we certainly welcome any and all ideas about how to do so.

I should note that one of the most important goals of this public discussion (on this list and our affiliate list) is to get more feedback from legal experts about whether this provision as written is likely to be legally enforceable. A second important goal is to get feedback on whether it is the right decision as a policy matter, even assuming it is legally sound. More feedback welcome and encouraged.

Thanks,
Sarah

[FN] Sometimes it is possible to separate the original work from an adaptation. For example, where the adaptation results from synching a song to a moving image.