Development of Creative Commons licenses

[Andrew Rens <andrewrens AT gmail.com>]

Hi Arne

On 24 February 2015 at 14:02, Arne Babenhauserheide <arne_bab AT web.de> wrote:

Hi,

Am Montag, 23. Februar 2015, 16:38:04 schrieb Andrew Rens:
> > I think the easiest step would be to explicitly forbid using a CC
> > by-sa file under GPL, if that would require patent rights which the
> > reuser cannot grant. You can only use a CC by-sa work under GPL if you > > are able to comply with the GPL.
>
> But how would this be implemented?

By just writing it: If you hold a patent which would prevent others
from utilizing their rights under the GPL, you are not allowed to
distribute CC by-sa content under GPL.

The problem is not that the person doing the distributing under the GPL  has a patent, the problem is that person who originally licensed a work under CC By SA might theoretically have a patent.

If CC By SA is one way compatible with GPL then someone else - not the original CC By SA licensor - may re-licence the work under the GPL. That re-licensor will not have a patent license because CC By SA does not require a patent licence. The re-licensor probably does not even know whether the CC By SA licensor has a patent and could not easily find out.

Where would you have this writing? Changing CC By SA or the GPL are not under discussion.

> > This might still create some walled gardens, but better a walled
> > garden (which can be opened by granting the patent rights to the
> > community) than legal uncertainty.
> >
>
> But legal uncertainty remains.

This is the same when you let a subsidiary create some software in a
jurisdiction which does not have software patents and then restrict
people in a country with software patents from utilizing their rights.

It is not at all clear why claim it is the same. In one case there is control i.e. a subsidiary in the  other case there is no control, the CC By SA licensor does not control the GPL licensor - the CC By SA licensor is a stranger to the re-licensing.

> In jurisdictions that grant software patents any number of people could
> obtain patents that would prevent the use of the GPLed work, and they would
> remain able to use those patents to prevent the use of the GPLed work
> regardless of the GPL patent grant. If the licensor of the CC By SA work
> holds  a patent prohibiting then she would be able to use it to prevent the
> use of the GPL work if the CC By SA work is not included in the GPLed work.

But she would not be allowed at all to distribute the GPL’ed work
(because she would not be allowed to distribute the whole under the
GPL if parts of the other code could be covered by the patent, and
would not be allowed to restrict the CC by-sa to a specific
version).

It is not clear what scenario you are envisaging here.  The CC By SA licensor created a work e.g. an image and licensed under CC By SA. Then another person who wants to combined the image into software and licence the whole under the GPL. The CC By SA licensor does not personally want to distribute the new work under the GPL.

The GPL licensor does want to distribute the new work under the GPL - the question being asked is whether she should be able to do so if - even if she does not know if theoretically there may be a patent held by the CC By SA licensor.

regards

Andrew