Development of Creative Commons licenses

[Arne Babenhauserheide <arne_bab AT web.de>]

Hi Andrew,

Am Dienstag, 24. Februar 2015, 19:14:51 schrieb Andrew Rens:
> On 24 February 2015 at 14:02, Arne Babenhauserheide <arne_bab AT web.de> wrote:
> > 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.

That’s the case for any other GPL compatible license, too. It would
only be a problem if the one with the patent could do the relicensing.

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

I’d guess in the compatible licenses part - as clarification. My
interpretation of the legal issues is that you don’t even need to
write anything to make this the rule, as it’s the logical
interpretation, and it is also what happens if you have licensing
across patent legislations. (but I am not a lawyer)

> > 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.

The part with the subsidiary is strategic behavior with the intention
to harm freedom. Without that, it’s even less of a problem.

> > 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.

That’s again the case for any GPL-compatible license and even when you
create the work all on your own. We cannot fix the patent system.

Sure, when you take a CC by-sa work you do not get the guarantees
you’d get with a GPL by the person who put it under CC by-sa in the
first place. It’s the same when you use works from the public domain.

But the GPL only prohibits you from distributing the work, when you
hold a patent yourself which you don’t want to allow recipients of the
work to be able to use.

You are not obliged to check the patents other people might hold, only
the patents you hold yourself.

So I think the patent-grant won’t be a problem for compatibility.

Best wishes,
Arne
--
singing a part of the history of free software: 

- http://infinite-hands.draketo.de

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