Development of Creative Commons licenses

[Gisle Hannemyr <gisle AT ifi.uio.no>]

On 2013-10-18 22:38, Sarah Pearson wrote:

> Before we lock the legal code and publish the license suite, we have
> one final change to propose for the two ND licenses only.
>
> * We propose changing the ND licenses to make it clear that licensees
> may create adaptations so long as those adaptations are not shared
> publicly.*

> One benefit of this change is clarifying that text and data mining are
> permitted under all 6 CC licenses. Text and data mining activity
> should fall outside of the scope of copyright and the other licensed
> rights, but because such analysis often involves creating adapted
> material in the process, there is some uncertainty with regard to
> the licenses that do not permit adaptations.

I know this is very late, but this particular language in CC BY-ND has
been bothering me since I first saw it, and I need to get this off my
my chest:

In the current draft this change to the ND licenses is expressed
as follows:

> License grant.
>
> Subject to the terms and conditions of this Public License, the
> Licensor hereby grants You a worldwide, royalty-free,
> non-sublicensable, non-exclusive, irrevocable license to exercise the
> Licensed Rights in the Licensed Material to:
[...]
> produce but not Share Adapted Material.

First.  This sounds really weird.  If I, as a prospective user of
a Creative Commons BY-ND license sit down a read the fine print of
the legal  code of a the *non-derivatives* license, I would be really
surprised to find that if I pick that particular license, I am
actually going to *license* everyone the right to produce Adapted
Material.

If this change really goes out, the BY-ND license *must* be renamed
BY-PBNSD, for:

   Attribution-ProduceButNotShareDerivs

I am not joking.

Also, I think this license grant creates an unfortunate legal
precedence if I were to use this license and had to enforce my
rights in court.

Without this license grant, if I found out that someone had produced
an adapted version of my work against my wishes, I could simply take
them to court for violating the license.

With the strange provision that they may "produce but not Share
Adapted Material", I need to prove that the adapted mayerial
had been "shared" (i.e. provided "to the public by any means or
process that requires permission under the Licensed Rights,
such as reproduction, public display, public performance,
distribution, dissemination, communication, or importation").

As a not too far fetched example, if I found out that some political
group I really disapprove off took my work under CC BY-ND 4.0 and
started to produce adaptions for their nefarious cause, but only used 
the Adapted Material *internally* (i.e. within their community), I would
(if this clause is part of the license) have no recourse,
because they would argue that by using CC BY-ND, I've *licensed*
them the right to produce Adapted Material, (only with the provison
that the *licensee* so no provie the public with access to
the Adapted Material.

Now, if someone unidentified individual (but not the licensee)
distributed these adaptions widely on the Internet, I would still
have no recourse because the adaption is actually *produced* legally,
under the BY-ND license. The sharing, while illegal, is not the done
by the licensee, and therefore not a license violation. (I know some
of you will argue that I should  pursue the anonymous file sharers,
but we all know that this is not really an option.)

One of the reason many people use CC BY-ND is to be confident that
adaptions of their work that they may disapprove of is never produced
(at least not legally).  However, if this change is implemented in
the 4.0 license, I don't think CC BY-ND 4.0 can be used for this
purpose.  My recommendation to people with this particular concern,
if the proposed change to the ND licenses makes it into 4.0, is to
use "All rights reserved" if they want to be protected against
people producing adaptions against their will.

Further, as an affiliate, I think I am going to have a hard time
explaining this particular quirk in the ND-licenses 4.0 to the general
public.  For instance, I can imagine a hostile journalist asking:

  Why have you made the name of the *non-derivatives* license
  deliberately misleading?

And I feeling stupid when I offer the "official" answer:

  Because of text and data mining.

While I symphatise with the sentiment that text and data mining
shall be possible with all six licenses, I strongly believe that
adding the proposed license grant to the ND-licenses to a lot of
harm and tries to fix something that IMHO don't need fixing.

There is really nothing I know about that indicates that text and data
mining *is* an adaption and therefore *need* to be licensed.

However, *if* somebody thinks that this is a problem, I think the right
place to sort this out is the in a FAQ  - just the way we do with the
question about whether the license implies the right to use the work
in a different format or medium.

So my preferred solution would be to drop the proposed change to
the ND licenses, and instead use the FAQ to make it clear to users
(licensors and licensees) that text and data mining is *not*
considered an adaption.

Or, if you *must* have something to address this in the license,
add the following sentence to the definition of "Adapted Material":

  "For purposes of this Public License, Adapted Material is not
   produced when the Licensed Material is used for text and data
   mining."

To conclude:

The proposed change to the ND licenses are confusing to the public
because the fine print in the legal code grants the licensee rights
that is not mentioned in the name or in the deed. This discrepancy
between name/deed and legal code is harmful to the reputation of
CC and difficult to explain to the public.  And if this discrepancy
is pointed out by parties hostile to CC, it may lessen the public's
confidence in the integrity of the CC licenses.

The proposed change to the ND licenses may also, in certain situations,
make it impossible for a licensor to enforce the ND clause by legal
means.  If this happens, such as an outcome will also lessen the
public's confidence in the integrity of the CC licenses.
--
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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