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

[Chris Grigg <chris AT grigg.org>]

Some responses to Don, inserted below; looking forward to Glenn's 
comments.  Again, while I may write pretty direct sentences, that's 
just for clarity -- all this is meant as grist for improvement, not 
as challenge.

        -- Chris

> > 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
>
> DJ - These words and more to come I'm sure are intentionally vague 
> (see Davids recent post with the NPR wording banning "commercially 
> inappropriate" re-uses. It is because within these  vague, 
> unstipulating definitions lives both the bad and the beautiful, 
> inseparable by category, but some examples desired or gladly 
> tolerated, and some not desired or easily tolerated. So we leave 
> them all with defining terminology that is vague enough to avoid 
> prescription, especially in creative areas. But not too vague to 
> apply against offenders without prescribing what is or is not going 
> to be acceptable in the future. That's my take on why we do this. I 
> think it's healthy for law to do this too, even though it usually 
> lets the damage be done before legal recourse is taken. I don't see 
> this vague terminology as intended to prevent, but providing legal 
> recourse and be open for all possible positive aspects of re-use in 
> our culture at the same time.
>
> > 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.
>
> DJ - Yes, judgement calls. Art is a judgement call in its entirety. 
> And in law, they don't call them judges for nothing. So when we are 
> mixing the two, law and art as this license will, you want to leave 
> a lot of room for judgement calls to accomodate the art part of this 
> conflict. Let us not fear judgement, unless we have sinned. The 
> subjective judgement call of copyright's effect on art's progress is 
> what has always been missing in the whole history of re-use in art. 
> I wish someone in law would make it, but it's entirely subjective 
> since we have no idea what modern art would be like if there were no 
> re-use copyrights constraints.
>
> But interestingly for you, Im sure, in the specific instance of 
> cultural re-use conflicts, I am actually in favor of letting the 
> crime happen and then being able to get 'em for it, rather than 
> displaying overly restrictive details in license wording that is 
> just inevitably not going to cover all present or future 
> possibilities anyway, and will probably inhibit as many acceptable 
> re-uses as it does the unacceptable ones. Yes, I am saying if we 
> care enough, we, as the source used by advertising, must sue them if 
> we want them to pull it. (And I say an equal retraction ad should be 
> run, but that's probably up to the judge.)
> I don't actually think most of us know exactly what we may want to 
> permit vs forbid in commercial re-uses until it happens. It's just 
> that any more possibly preventative terminology in the license 
> becomes very quickly up to more harm than good when it comes to the 
> whole idea of free and open re-use as something we're encouraging 
> here. The vagueness reeks of flexibility and encourages that, but 
> hopefully will provide enough direction for the law to clamp down on 
> selected instances of unwanted exploitation by advertising 
> specifically. Yup, legal action after the fact for the most part may 
> be counter-productive in terms of most artist's inability to fund a 
> suit, I understand the problem perfectly, but it's the more healthy 
> approach to the actual problems of re-use in culture, so how do we 
> reconcile this?
>
> Establish a Re-used Artist's Prosecution fund! We'll get donations, 
> we could put on a show...  This just gets weirder and weirder.

FWIW, all my comments were directed more towards CC staff as to 
practicalities, not so much towards NL as to direction issues; as you 
know, I'm very sympathetic to the point of view you're expressing 
about the way things should work.  But I don't think you address my 
point, quite.  It would be good to keep it clear that the Sampling 
License would not be a new copyright law statute, it (like the GPL 
and its variants) would just be a civil contract -- so if litigated, 
cases will usually settle with no reported decision, and hence zero 
precedential value in those cases. (CC staff: presuming there 
actually were eventual reported decisions on the Sampling License, 
what is the precedential value of a reported decision on contract 
language?).  So the interpretive decisions you're talking about could 
take a good long while to materialize -- years of murk right when the 
Sampling License is trying to get off the ground.  Having your good 
goal of flexible interpretation doesn't address the adoption barriers 
that having enough vagueness to preserves the licensor's wiggle room 
to sue after the fact discourages re-use -- the opposite of the aim 
of the license in the first place.  Seems rather like you want to 
have the cake (of free reuse of other's material) and eat it (the 
cake of controlling reuse of your own material) too.


> > 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.
>
> DJ -Are you saying that the "no advertising" ban should be an option 
> specifically?

I'm just saying that not everyone is necessarily going to agree with 
the NL position about advertising in particular, and that that's only 
one of many possible example reasons why offering only a 
one-size-fits-all version of a Sampling License might make the 
project less of a public service than it could be.  I mean, the 
larger point is: There is an old and broad artistic/technical legal 
problem out there in the world, i.e. that there is currently no 
unambiguous way at all of making it clear when the creative re-use of 
a thing is encouraged by the creator.  If the Sampling License could 
solve that problem, that would be a significant and worthwhile 
achievement.  Whether it's equally important for the same Sampling 
License to go further and also be an instrument of NL's particular 
preferred policy views is, I think, debatable, and to the extent that 
doing that detracts from the primary goal, well, that would be a 
shame.

Maybe there could be two outcomes from this project: a Sampling 
License with a set of independently selectable options (all 
well-annotated), and the Negativland Option Package that expresses 
the group's policy vision.


> So without trying to force anything (I was for it as option too, 
> just so it's in there) I will say the trouble with options is they 
> are confronting people who have probably not formed any opinion on 
> the option, and so they often go unread, misunderstood, or unused by 
> those coming to this just wanting everyone to be able to freely 
> sample their work. I think it would be actually more protective and 
> cause less problems for the innocent (as a license and as a policy) 
> to make no ads mandatory (protecting license holders from any 
> possible unwanted exploitation by advertising, but then with the 
> option to allow it if that suits their considered desires). No one 
> is going to miss the uncompensated use of their work by advertising 
> if no ads is mandatory, and if they do like that possibility, say 
> for that kind of publicity, they can opt for it.
> And yes, the mandatory "no free re-use in advertising" is also a 
> great way to plunge the very concept (new to many) that there might 
> be something suspect in advertising's influence on this culture 
> right into their brain pan for the first time where it can begin to 
> simmer in their paranoid imagination.  This I like.

You can certainly take that position, but I have to say it seems like 
a rather paternalistic/chauvanistic attitude.  You could just as 
easily argue that presenting options forces a potential user of the 
license to think through the important issues they represent, i.e. 
see positive educational value there, rather than in terms of 
protecting innocents.  Empowering creators is better than sheltering 
them, eh?


> We are not suggesting the attribution of all samples one might use 
> and still get in trouble for, but that when this particular licensed 
> work is re-used, attribution is dangerless, appreciated, and 
> encouraged as good art policy.

OK, good -- that sounds much more moderate to me, and much better 
than what I've seen so far (I confess I haven't read every word; some 
posts haven't been very concise).  It would be good to see some draft 
language expressing that idea.  Anyone?


> > 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.
>
> DJ - It reads like something in a novel by Kafka or - who's that 
> modern guy who makes his novel characters insane?
>
> > 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.
>
>
> DJ - Oh God, no...

Yes, it's a nightmare, but that doesn't mean we can get away with 
ignoring it.  So are you saying a) the analysis is wrong (like I 
said, I hope it is!), or b) that you just don't like the fact that 
things are they way they are?


> > 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.
>
> DJ - Precisely. This is something so absurd, so time consuming, so 
> brain burning, so technically obsessed, that it really does have the 
> effect of inhibiting the creative process itself.
> There is only ONE way around this eventual mass of potentially 
> conflicting interests and motives being trapped together in the same 
> work forever, causing hands off forever, if not painfully pointless 
> court cloggings forever. We can not go on sending mixed messages - 
> use/don't use - in the same work that happens to now be a collage of 
> rights holders. Do we want us to go insane? The nature of collage is 
> to LINK things. It must do this or die. Linking disparate, possibly 
> unrelated existing elements in a new place is the definition of the 
> game everyone is playing now.
> You are right, the copyright laws as a whole (we are attempting only 
> to be a little part of it) must be changed to automatically withdraw 
> copyright control in the very first instance of re-use in a partial 
> or collage context, and forever after in any chain of that work's 
> re-use by others. In other words (ha Ha) our license idea becoming a 
> LAW that applies to all copyright holders of any kind upon the first 
> partial re-use of that work to create a new work. The owner's 
> copyright controls of any kind over their works would extend only to 
> authorized reproductions of the entire works or whatever partial 
> reuses the author chooses to do. ANY partial re-use becomes FAIR USE 
> in copyright law. Sorry fellas, that's the law now, you didn't want 
> your stuff to ever go to public domain either, but we have certain 
> rules... We have to win them over to a Congressional reconsideration 
> and amendment of current copyright law to give art a break, and this 
> would be a definite break away from the control over culture by 
> commerce which has defined it as a business for us all. So fat 
> chance. But otherwise, artistic and informational re-use will 
> forever be roadblocked by deeper and deeper conflicting claims, most 
> becoming submerged from view entirely until they strike, within 
> single works of the sampling persuasion. Just the opposite effect we 
> want this sampling license to have, maybe even causing shunning of 
> this licensed work for re-use possibilities.
>
> But either way, with or without this license in play, re-use artists 
> remain subject to, under copyright threat, trying to get some rights 
> holder's identity, address, and permission to use a piece of this 
> thing they like in order to make something new, and then the next 
> rights holder, and then the next rights holder... and then, often 
> either giving up and just using stuff anyway, or casting it off and 
> start looking for something else from scratch.
> There is no harm in such cultural re-use activity of course, this is 
> not an economically competitive challenge in the vast majority of 
> re-use incidents. Copyright income from partial re-use is unplanned 
> and unearned income as these things go, and does not effect the 
> planned and intended income for original works in their original 
> form. Re-use is not "stealing" or removing anything that anyone else 
> has created by their own hand, but it is referencing that hand 
> directly, as artists/creators should be able to do in new work if we 
> value free expression so much.
> Put me in front of Congress and I'll tell them all this. That's 
> another fund, and I'll have to join the DC lobbiest association, and 
> all my dreams of becoming an artist will just have to go on hold for 
> several years...
>
> Free expression in the sampling arts is doomed by a presently 
> lucrative lack of sympathy at the top.
>
> DJ

Your comments all say essentially the same thing I said, i.e. that 
the current statutes are deeply wrongheaded in this area.  I don't 
like the situation any more than you do, but if my analysis and your 
analysis are both right, i.e. the only real fix would be to change 
the copyright statute, but we -can't- change the statute in the 
Sampling License project... then what do you suggest?

        -- Chris