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

["Glenn Otis Brown" <glenn AT creativecommons.org>]

Hi Chris,

These are all great questions. I'm on the road right now and will take a
crack at them when I get back home, so that I can do it right. (I don't
know if others have chimed in yet . . . ) Thanks.

Glenn


On Fri, 27 Jun 2003 17:51:35 -0700, "Chris Grigg" <chris AT grigg.org> said:
> 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
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---------------------
Glenn Otis Brown
Executive Director
Creative Commons
glenn AT creativecommons.org
+1.650.723.7572 (telephone)
+1.415.336.1433 (mobile)