Development of Creative Commons licenses

[John Hendrik Weitzmann <jhweitzmann AT mx.uni-saarland.de>]

Am 10.11.2013 11:25, schrieb Gisle Hannemyr:
> 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.

Well, I don't know Norwegian law of course, but in Germany and several
other jurisdictions you couldn't always do that, because the _making_ of
adaptations does often not require consent of the original author (if
it's actual adaptations carrying the adaptor's own copyright, not mere
copies). That is only required for publishing and otherwise exploiting
those adaptations.

There are exceptions to this rule, f.e.: Architectural works, database
works (not simple databases) and computer programs.

You could of course also argue that an adaptation used within a company
w/o being published would already cross the line of exploitation, but
that's not consensus AFAIK.

> 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.

I think that would be an ok thing to live with. The same applies to
several other provisions in many public licenses. If you're honestly
concerned about political groups doing something specific that you
cannot sanction under free licenses, then keep all rights reserved or
draft a license and be an island.

Regarding tranformative internal use by political groups you dislike,
not even the no endorsement clause will help you, I guess. But usually
they don't adapt but simply copy and then at least you can demand your
name be deleted.

> 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.)

But this wouldn't be due to the license, right? If some unidentified
individual *produced* the adaptation, you would have the same problem.
And even if production of the adaptation was not allowed - which it is
by law in many countries - you still wouldn't have any recourse except
stopping the internal use by that group, but not the sharing widely,
because that is done by someone unidentified.

> 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).

Then they have a wrong impression of what the law is in many corners of
the world.

> 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.

CCPL4 is meant as a universal tool, without the need for ports, and in
some jurisdictions the processed data actually might qualify as an
adaptation. We cannot simply define in our FAQs everybody's state of the
law the way we'd like it to be.

Here's is the problem I have with this amendment:

For a number of jurisdictions it "regulates" something that is state of
the law anyways, thus giving a false impression about the things you
need permission for. Then again, that is maybe lesser damage compared to
saying nothing about it in jurisdictions where you actually need permission.

> 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."

That might be a good compromise - only caveat: I guess, data mining is
not the only thing meant to be possible ...

Best
John