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

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

Again, I've added input below 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: Tuesday, July 01, 2003 3:48 AM
To: creative commons license list
Subject: Re: [cc-sampling] First Post / Five Points







I'm jumping in again down there.
DJ




>>
>
>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.

[CK:  The precedential value of reported decisions on contract language is 
meaningful in other cases involving interpretation of similar contract 
language.  If the Sampling License were litigated, its interpretation would 
certainly have a strong effect on subsequent interpretations of the license.  
In general, if there is litigation over contract language, it does have a 
ripple effect on how people write licenses.  For example, there has been 
litigation over rights clauses covering future media, which has led draftsmen 
to focus on appropriate language to address what has been ambiguous (and 
litigated) in other contracts.]

DJ - I understand, Chris. I do believe you are right. I am pushing 
for cake I can actually eat. But even more seriously, this confangled 
shotgun marriage of art and copyright law is swimming in 
circumstances where specific definitions, finite prescriptions, and 
such, inhibit plenty of perfectly wonderful innovation and new works 
as they seek to prevent whatever they're after.
So in my mind, it is a peculiar kind of balance this requires which 
has to involve aspects of flexible interpretation at all times. 
Judicial discretion - no 3 strike rule without exception, even if you 
have a 3 strike rule.

  I know the" let it happen, then sue if you want to" would be an 
unusual acknowledgement in legal think, it's all squirmy as to its 
morality, but so is art, and so I don't know exactly why it's an 
inadvisable legal strategy to accommodate this peculiar kind of of 
art/ law balance that sampling from culture entails. Not too sure 
whether vagueness would be a barrier to adoption by most who would 
ever adopt this license in the first place. Would you actually object 
to, let's say intelligent vagueness in a free sampling license - one 
whose whole purpose is to encourage doing the unknown with your stuff 
without your permission? It's not a license that's even promoting 
"protection," is it? This license is saying there is nothing to 
protect yourself from (except advertising).  I would almost say the 
aim of this license is to release the artist from any burden of 
defending this work against unauthorized partial re-uses. Like, we 
have a "backwards" intent to begin with...


>>
>>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.

DJ- Do you really think having to opt out of advertising re-uses is 
preferable to having to opt into them? Why? I bet reversing the 
normal default for advertising - a free pass - is not just a Neg 
policy anymore. Could be wrong, but this license is not directed at 
General Motors or Microsoft.

>
>
>>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?

DJ - I think there are probably a great many kinds of licenses which 
actually protect the holders (and users) from things they are not 
specifically aware of in wanting or re-using the license. I ain't 
sayin' people are stupid, just busy. We need some empowering and we 
need some sheltering.

>
>
>>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?
>
[CK:  the existing CC license attribution language calls for attribution of 
the licensed work only, so it does not require attribution for any other 
non-CC samples that may be used.

Here is the standard CC language for the attribution option. Once we 
determine where we are with the sampling provisions, we will integrate it 
with the main CC license with appropriate conforming changes, as discussed in 
my prior email.   

 "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." 

Depending on whether attribution is made a suggestion or a requirement, we 
can draft language to that effect.]

>
>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?

DJ - The latter. Everything in our power must be done to wake up the 
nightmare.

>
>
>>>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.
>>
>>
>>
>>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?

DJ - Now there, ya got me. Do this, I guess, and I guess I'm thinking 
since this license/contract will have little effect if it ever comes 
up against copyright constraints it may contain or conflict with, we 
might as well be open to writing this license with a few suggested 
ideals or new agendas in mind, just as much as its actual 
practicality (which is ultimately questionable anyway). I'm not yet 
saying this is an educational publicity stunt, but it DOES have 
definite value as that regardless of its eventual practicality in 
legal terms.
So maybe I'd say, "we'll see what happens." Yeah, that sounds good.
Now, back to that wording...

>
>       -- Chris
>
>
>
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