Development of the Creative Commons Sampling license (or license option)

[Chris Grigg <chris AT grigg.org>]

Hi all --

Former Neg-Member Chris here.  Been lurking a while, and in addition 
to saying hi to some old friends (hi, old friends!) would like to 
offer up a few general comments and clarifying questions; sorry this 
long, that seems to be the only way I can write anything nontrivial 
these days.  And I hope nobody's put off by my organizing the post 
into numbered points, it just makes things so much easier for email 
discussion.

I'm participating here because I support CC in general -- in spirit I 
fancy myself the mutant public-minded love-child of Larry L. and 
Jessica L. -- and so would very much like to see a good, solid, 
practical outcome from the Sampling License initiative.  For those 
who don't know me, outside of the group I have always done music 
technology and writing; since the U2 event have become quite the 
amateur copyright law hound; and these days I'm chairman of the MIDI 
(MMA) Technical Standards Board, also participate in 3GPP and 
interactive audio standardization, talk at conferences like Project 
BBQ & the Game Developers Conference, and now, it seems, regularly 
rant on the pho list about technology, copyright, P2P, and 
compulsories/actuarials.  In other words, I enjoy doing a lot of 
practical, detailed group process around technical and copyright 
issues.

So, five points:

1. Context.

In the launch emails for this list, the proposed license language is 
presented as 'key language'.  Key language in what, exactly?  I would 
like to get a characterization of that context, and see the rest of 
the license language if it exists.


2. Technology Link?

Released CC licenses to date generally include XML representations 
(DTDs?) to allow for automated processing (in players, tools, etc.) 
Is this side expected for the Sampling License as well?  If so, have 
the practicalities of this been considered w/r/t recorded music, 
movies, etc.?  Because there would seem to be many tech issues there 
that, although not insurmountable in the fullness of time, would 
present significant implementation problems in the near-term future. 
(Cheap example: Anna rips track B from her CD-Digital Audio, however 
since the CD contains no metadata area per se, there's no place to 
staple the XML expression of that track's Sampling License to, and no 
obvious way for her to find it over the net.  How does Anna find the 
XML?)


3. Vague Fundamental Terminology.

The essential language in the 'FIRST DRAFT' 
(https://lists.ibiblio.org/sympa/arc/cc-sampling/2003-May/000001.html) 
depends for its essential meaning wholly on a few inherently vague 
words, for which I have not yet seen clear definitions provided. 
Mainly:

        - highly transformative
        - as appropriate
        - partial use
        - insubstantial portion
        - substantially different

Point being, without clear definition these are -all- judgement 
calls.  If the aim of the license is to encourage sampling-style 
re-use and avoid litigation or the threat thereof, then any vagueness 
that could lead to a misunderstanding on the part of the licensee as 
to what is permitted vs. forbidden increases the likelihood of the 
licensor being forced to sue to enforce the Sampling License. 
Counterproductive in the extreme.

So my question is, what is the project plan for defining these, and 
shouldn't they come sooner rather than later to make sure the 
participants actually have the same goal in mind?  (We see this 
problem in standards all the time, where halfway through a project 
everyone has to re-assess their participation and support just 
because vague language allowed the project to proceed despite the 
lack of an actual common underlying understanding; it would be a 
shame to see this worthy project derailed by such a thing.)

Also, "the rights" troubles me a little... is CC staff confident that 
all the relevant enumerated 17 USC exclusive rights for all the 
possible relevant art forms are listed in subclause b?


4. Scope, or: General License vs. Negativland's License.

The discussion w/r/t attribution and advertising to me indicates that 
there is a more or less basic tension between two distinct 
motivations in the Sampling License project.  On the one hand, CC and 
others wish to produce a generally useful license for partial 
creative reuse; on the other hand, Negativland wishes the help of 
knowledgeable people to work out a license that captures they way 
they think things ought to work.  Whereas not all licensors will 
necessarily agree with some of NL's morality-based views, again for 
example w/r/t attribution and advertising.  I offer this observation 
-only- in case it helps the project to contextualize that discussion, 
and from a practical perspective have no strong opinion... other than 
that to the degree that my preference is for a more generally usable, 
hence more practical, license, it might be better to treat  any 
license features that are viewed as more idiosyncratically-driven 
(quite irrespective of any morality concerns) as license options that 
can be picked and chosen on a per-case basis.  Presuming doing so 
wouldn't derail this project, schedule/labor-wise, of course.

(Personally: As an artist I think there are plenty of cases where 
observing the attribution requirement would be silly, either because 
of de minumus uses or because of glaring obviosity, and other cases 
where for political reasons the tribute effect that attribution tends 
gives the original could cut against the artistic effect of a work 
that is intended to be essentially oppositional to the original, 
and/or its stakeholders.)


5. Sampling License vs. Copyright Chain.

Reading the discussion about the chain of rights and what it is and 
is not possible to achieve in a license vs. what would require a 
change to statute, it occurred to me that there are at least three 
separate classes of use that this project is trying to address, and 
that it might be helpful to disambiguate them.  In the process of 
doing so, I think I may have found a bit of a problem with the whole 
project... but I sincerely hope I'm missing something, and that the 
CC staff will be able to set me straight about that.

All three following classes of use involve a creator, Anna, making a 
recording B of song C and releasing it under the Samplng License, and 
then another creator, Dave, using the recording in a new work E:

        Anna --> Recording B of Song C--> Dave --> New work E

This is a recorded music example, but I think the same entity 
relationships hold irrespective of media type.

Class 1: Wholly original works.  -- This is the simple case.  Anna 
creates recording B embodying song C, not incorporating anything in 
which any other party holds copyright, and releases the recording 
under the Sampling License.  Dave exercises the Sampling License, and 
creates a newer work E incorporating some (perhaps all) of recording 
B (and therefore also of song C), then distributes copies of E. 
Dave's legal status w/r/t B and C is clear because of the Sampling 
License.  All is well, the Sampling License works, and there is much 
rejoicing.

Class 2: Works incorporating both other works (with authorization, 
perhaps under license, perhaps with payment), and original material. 
-- Anna creates recording B embodying song C, incorporating with 
authorization (one or more) elements F in which one or more other 
parties G hold copyright, and releases the recording under the 
Sampling License.  Dave exercises the Sampling License, and creates a 
newer work E incorporating some (perhaps all) of recording B (and 
therefore also of song C and 3rd party elements F), then distributes 
copies of E.  Dave's legal status w/r/t B and C is clear because of 
the Sampling License, but what is Dave's legal status w/r/t F?  It 
depends, right?  Anna may or may not be able to pull F into the 
Sampling License depending on the agreement(s) with parties G under 
which material F was used in recording B.  If so, all is again well, 
and more rejoicing (though how likely it is that parties G would 
allow such a subcontract is open for discussion).  But if not, then 
both Anna and Dave may have potential infringement liability to 
parties G, and Anna may have contract breach with parties G as well, 
and maybe liability to Dave for contract breach or failure to 
disclose etc.

So using the Sampling License in this case could create new liability 
for the artist who uses it, right?  Could seriously discourage use of 
the Sampling License for class 2 works (not to mention making it look 
bad).  At least Dave might have recourse to Anna -- but maybe that's 
a bug, not a feature.

Class 3: Works incorporating both other works (without 
authorization), and original material. -- Anna creates recording B 
embodying song C, incorporating without authorization (one or more) 
elements F in which one or more other parties G hold copyright, and 
releases the recording under the Sampling License.  (Anna's opinion 
as to whether the use of F is or is not a fair use is not relevant to 
this analysis.)  Dave exercises the Sampling License, and creates a 
newer work E incorporating some (perhaps all) of recording B (and 
therefore also of song C and 3rd party elements F), then distributes 
copies of E.  Dave's legal status w/r/t B and C is clear because of 
the Sampling License, but what is Dave's legal status w/r/t F? 
Again, both Anna and Dave may have potential infringement liability 
to parties G, and Anna may have contract breach with Dave if the 
unauthorized nature of the use of F is not disclosed.

I guess there's also a class 4 where there are both authorized and 
unauthorized 3rd party elements, but it doesn't much further the 
analysis to go there.

To summarize, classes 2 & 3 seem to me to have serious problems:

- Use of the unauthorized third-party material leaves both Anna and 
Dave open to an infringement suit by parties G.  Yes, fair use may 
perhaps be raised as a defense by either of them, depending on the 
art, but that doesn't prevent the suit from being filed in the first 
place, which is where most of the damage occurs.

- If Dave is sued, does he have a cause of action against Anna?  Is 
it worse if Anna didn't mention that recording B contains 
unauthorized material F?

So while class 1 is very doable, and while I'm very reluctant to rain 
on a parade, I have real doubts that the Sampling License would be 
able to achieve its desired purpose when applied to uses of classes 2 
& 3... and of course, the type of sampling work that NL tends to do 
is class 3 work...

It seems clear to me that under the existing statutes it is not 
possible for any license, and hence not possible for the Sampling 
License, to terminate any of the 17 USC exclusive rights, or to 
grant/sublicense them to a licensee, in cases where the licensor has 
not obtained any license to the relevant elements (indeed an 
appropriate,  transferrable/extensible/ license).  For the Sampling 
License to be able to terminate parties G's exclusive rights in F, or 
to allow Anna to convey a sublicense to F upon Dave, without the 
active involvement of parties G would seem to require an actual 
rewrite in 17 USC.  Ain't gonna happen in time for the Sampling 
License.


Think I'll leave it at that for now.  Hope this is seen in the 
helpful spirit in which it's offered... again, CC staff, please 
educate me about what I'm missing!

        -- Chris