Development of Creative Commons licenses

[Kat Walsh <kat AT creativecommons.org>]

Breaking the inline commenting here, as this will be the last reply
from CC on this thread.

I wish we could agree with you that the situation being addressed is a
non-problem. Unfortunately, we did see some issues as problems, and
drafted this change to avoid them. But several of the points you raise
are true concerns. The appearance of regulating activities which
should be already permitted without need for a license, for example,
is an issue for this and several other things the license already
addresses; we hope to make our messaging clear on these points.

You are correct that the situation you describe--licensors litigating
over supposed misuse of their ND works--is not what happens in the
vast majority of cases we see. Instead, potential reusers who care
about text and data mining avoid ND content even though it would
almost certainly be permitted, for fear about uncertainties existing in
 law, because there is no way for them to remove the "almost" from
"almost certainly permitted". In many cases, "almost" is not good
enough. Some have begun to draft custom licenses that are in many ways
less desirable than the CC licenses, but do specifically permit this
kind of use--or, at least, make very specific exceptions for content
mining. We think this should already clearly be permitted under all of
our licenses, and this problem is avoidable if we remove the
uncertainty and make it explicit.

We did consider making the effect specific to text and data mining,
but discarded the idea. One reason is that defining what is and is
not text and data mining activity, without unintentionally being
underinclusive or overinclusive, is a very difficult task. But
primarily, we do think that most private uses should already be
permitted under this license, and do not think making the distinction
here would be beneficial. If we name text and data mining as
specifically permitted, it might give the mistaken impression we
believe other activity that does not result in Shared adaptations
should not be considered a private use. A general permission has the
added benefit of making the effect of the license the same across
jurisdictions, regardless of the strength of their private use
exceptions. We think it is better simply to make the permission
broad and simple.

However, it is still true that the NoDerivatives licenses do not
permit sharing of derivatives created. In most cases--perhaps almost
all cases--this is the only way the use of the work would be
regulated. The effect is essentially the same as in previous
iterations, and we are not aware of communities for whom the effect of
the change is a concern.

Because of this, we will not be backing out the introduced change, or
changing the name of the license.

-Kat

On Wed, Nov 13, 2013 at 8:34 AM, Gisle Hannemyr <gisle AT ifi.uio.no> wrote:
> On 2013-11-11 00:09, John Hendrik Weitzmann wrote:
>> 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
>
> I am well aware of that.
>
> In Norway too, creating an adaptation and sharing it with family and
> close friends is permitted under the "private use exception".  If
> somebody were to create an adaptation under the "private use
> exception", I would have no legal recourse.
>
> However, I think it is a big difference between recognising that the
> "private use exception" *permits* adaptations to be created for private
> use - and to *license* the right to create adaptations.
>
> The first is something that follows from the law, the latter is an
> act of will from the licensor.  I think it will be much more difficult
> to pursue a borderline adaptation that may or may not have been legal
> under the private use exception if the other party can point out that
> you've actually licensed him the right to create adaptations.
>
>>> With the strange provision that they may "produce but not Share
>>> Adapted Material", I need to prove that the adapted material
>>> 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.
>
> Well, I am not concerned about "something specific that you cannot
> sanction".  I am concerned about *derivatives*.  I think that when I
> use a license with "no-derivatives" in its name, it is a reasonable
> expectation that I do *not* license the right to make derivatives
> (while fully understanding that private derivatives may still be
> created, but when this happens it is due to the private use exception,
> and not because I've granted that right by means of a public license).
>
>>> 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.
>
> We do that already:
>
>    "Note that all CC licenses allow the user to exercise the rights
>     permitted under the license in any format or media. Those changes
>     are not considered adaptations *even if applicable law might suggest
>     otherwise*." (my emphasis)
>
> (From:
> http://wiki.creativecommons.org/Frequently_Asked_Questions#Does_my_use_constitute_an_adaptation.3F)
>
>> 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.
>
> That, too, is a concern.
>
>  > Then again, that is maybe lesser damage compared to
>> saying nothing about it in jurisdictions where you actually
>  > need permission.
>
> The CC ND has been in use for about ten years now.  Has there been
> a *single instance* were somebody has said:
>
>    "Stop all text and data mining activity on my ND-licensed work now!"
>
> I don't think so.  CC is trying to "fix" a non-problem here.
>
> On the other hand, the "fix" is 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.
>
>>> 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 ...
>
> Well, enabling "text and data mining activity" was the only "benefit"
> that would follow from this change in the original post about it from
> Sarah Pearson (2013-10-18 22:38).  If there are other "benfits" that
> were also on the table, I would like to hear about them.
> --
> - gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
> ========================================================================
>      "Don't follow leaders // Watch the parkin' meters" - Bob Dylan
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-- 
Kat Walsh, Counsel, Creative Commons
IM/IRC/@/etc: mindspillage * phone: please email first
Help us support the commons: https://creativecommons.net/donate/
California Registered In-House Counsel #801759
CC does not and cannot give legal advice. If you need legal advice,
please consult your attorney.