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

["Kirkman, Catherine" <CKirkman AT wsgr.com>]

Title: Re: [cc-sampling] First Post / Five Points

I've added below input on the legal issues. Please let me know if I missed something that I should be addressing.

Thanks,

Cathy

As before, our standard disclaimer is:

This is not intended as individual legal advice and does not create any attorney-client relationship. These comments reflect our preliminary judgment that is expressed in a short-hand manner, is subject to revision and is not for reliance by any party.

-----Original Message-----
From: Don Joyce [mailto:dj AT webbnet.com]
Sent: Saturday, June 28, 2003 5:01 PM
To: creative commons license list
Subject: Re: [cc-sampling] First Post / Five Points

Some additions below

DJ

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.

[CK:  My understanding is that we are defining the sampling-specific terms to be implemented in the existing CC license, so once we determine where we are going with the sampling part of the license, we will integrate it with the CC license (with conforming changes as appropriate).  You can view the full text of the standard CC license at the CC website.  If it would be helpful for us to generate a draft of the full conformed license, let me know and we will be happy to do that, but I think we need some consensus on where we stand on the sampling language, as well as the attribution and advertising issues.]

 

DJ - Me too!

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?)

DJ - As President Bush must be saying, "How we gonna fix the whole world...?

Being pretty much as technically stupid as ever, I hope I understand what you're saying here, but basically that it will be difficult to actually attach licenses of any kind to these particular kinds of works or re-uses?

Well, dammit, get to work on that, that's your department.

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

[ CK:  There is a tension here between defining this precisely (e.g., you can use samples of X duration or less, etc., and allowing for new and unanticipated uses in multiple media.  These terms are intended to implement the desired policy goal of allowing more flexibility in use of this license.  In drafting contracts, it is a judgment call when to create a definition and when not to.  At some point you end up relying on a reasonable interpretation of the words that you use.  In this case, I believe we would go down a legal rat-hole trying to define these terms, unless we want to go the precision route (in which case we don't need these terms but instead specific rules identifying permissible sampling).]    
 

 

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.      

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?
 

[CK:  As mentioned above, the sampling specific language will be folded into the rest of the CC license (with appropriate conforming changes), which contains all of the enumerated rights under title 17.] 

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? After some discussion around this ad issue in which that was presumed better, it seems most everyone interested in this license does actually agree they want a no ad re-use ban anyway. 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. But actually, virtually everyone we've heard from already suspects advertising and already wants no part of it.   

(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.)

DJ - I'm new to writing licenses, but the attribution aspect I always considered best was as a strong suggestion, an encouragement extended by the license holder to attribute sources as a policy, but not stated as required either. It's obviously not going to be a factor of enforcement, no one is going to court over someone skipping attribution, people wont list samples when they are obvious, etc. But in general, it's just better etiquette in practicing appropriation to say who you're messing with. I am told licenses are not about suggesting etiquette but, being new to this, I don't see why not, as long as we agree that attributing samples to sources is, indeed, generally preferable in art, and that once it's not illegal free sampling that's going on because of this license, this preferable etiquette of sampling transparency becomes much easier to spread. If you don't like transparency, don't attribute, of course. It's only a suggestion. I don't know how the wording on this now stands, but that's what I would go for.

How could an attribution "cut against' an artistic effect if it is an attribution to something with this license on it? Huge Bush thugs could still break your legs in the middle of the night if you became an unauthorized sampler of one of his speeches and give it to a video of Osama to read , but if you're using something with this license on it (which is all we are concerned with) you would be attributing samples to this thing with this license on it, where they understand what you may do with it (even if you want to oppose it!) and still encourage you to do it. No control over partial re-use means no control over partial re-use, we hope this is clear. 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. 

[CK: Here is the standard CC language for the attribution option. Once we determine where we are going with the sampling language, we will integrate it with the main CC license with conforming changes, as discussed above.   

 "If you distribute, publicly display, publicly perform, or publicly digitally perform the Work or any Derivative Works or Collective Works, You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., "French translation of the Work by Original Author," or "Screenplay based on original Work by Original Author"). Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit."

If we decide to make attribution a suggestion, but not a requirement, we can draft language to reflect that.   So we should decide which way we are going on this, and then work on the language.]

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.
 

[CK:  We have been discussing this issue for a while now, i.e., what happens if the licensor does not own or otherwise have the right to grant a license to all parts of the work released under the license.  We have concluded that this is an issue that relates to the warranty clause.  My understanding from Glenn is that the CC board is currently reviewing the warranty issue so we are on hold for now on this.  Obviously if a licensor can release anything under the license without warranty, then you can't rely on the license.  We had suggested they might have the right to include a disclaimer regarding third-party stuff that they don't own or have the right to re-license. 

 

Fyi below is the warranty clause in the standard CC license. 

1. By offering the Work for public release under this License, Licensor represents and warrants that, to the best of Licensor's knowledge after reasonable inquiry:
2. Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder without You having any obligation to pay any royalties, compulsory license fees, residuals or any other payments;
3. The Work does not infringe the copyright, trademark, publicity rights, common law rights or any other right of any third party or constitute defamation, invasion of privacy or other tortious injury to any third party.  ] 

 

 

 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...

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.

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  

 

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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