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

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

On Friday, July 18, 2003, at 10:14  PM, mark / negativland wrote:

> Great discussion going on here...
>
> Chris- great! You are one big Mr. Smarty Pants kinda guy.! oxoxoxox
>
> Cathy - we seem to be decided that attribution and the no-add  clauses  
> are either an opt in or opt out, yes? Which would work best and be  
> easiiest to understand and implement? Anyone??

I'm always going to push for the simplest arrangement possible, meaning  
the fewest number of options within reason. (More options, the more  
confusing the user interface, and the technological side of things.)  
You all seem to want attribution as an option. I'm fine with that  
(though I think having it be standard would hurt much, as you know),  
but if we make attribution optional, let's not make the advertising  
clause optional. That way, if Madison Avenue really wants to loop your  
riff on their big super bowl ad, they'll have to come make a deal with  
you and pay you. Is that okay?

> Glenn/Cathy - How close are we to putting this whole CC enchilada up  
> so we can read it hrough??

Very close, I think. Cathy and should talk early this week and then  
we'll get the whole enchilada up for review.

>  Please include teh shandard CC stuff as well, so we can se how it al  
> works togethr.

Yes, I agree -- good idea. And we'll explain the relevant parts of the  
standard CC stuff.

> Can we  see how  this all will actually  look and work on your web  
> site, to make sure it is user friendly??

Yes! A great idea, and very important. (I think you'll see how few  
options will help make this more user-friendly, too.)

We should also think about:

(1) What the name of this thing will be?  Sampling, Collage, Remix?
(2) What its icon will look like? Matt Haughey, our graphics guru, will  
brainstorm on this and send out examples. But please float ideas.
(3) What will the metadata version of the license look like? Aaron  
Swartz, our metadata star, will think about this and come up with  
something.

Thanks all,

Glenn




> Chris raised some more good points which I hope get addressed.
>
> mark
>
>
>
>
>
>
> On Tue, 15 Jul 2003 23:23:01 -0700
>  Chris Grigg <chris AT grigg.org> wrote:
> > Thanks a lot, Cathy.  This really clears up many of my questions; see  
> > a couple comments/follow-ups below.
> >
> > I guess my top-level points are:
> >
> > 1. Seems like folding the SL into the CC license will produce a  
> > pretty hard-to-parse document, given  the many differences in some of  
> > the 'common' language (warranty, attribution, etc.)  Are you sure  
> > merging the two is the best course?
> >
> > 2. It looks like while NL could exercise a SL offered by someone else  
> > (to make use of the offered work in a new collage work), NL would not  
> > be able to offer a SL on any collage work it created if the collage  
> > incorporates any unauthorized elements.  (Or at least for sections of  
> > the work when the unauthorized elemets are present.)  Would you >> agree?
> >
> >         -- Chris
> >
> > > 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.
> >
> > [CG} Ah so.  Will do.
> >
> >
> > > 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.]
> >
> > [CG} I don't see any need to dummy-up a full version; I'm sure we can  
> > all just pull it together mentally.
> >
> >
> > > 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.
> >
> > [CG] Is there any CC staff input on this?  Is anyone even looking at  
> > the question?
> >
> >
> > > > 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).]
> >
> > [CG] Yes, quite agree about how difficult it would be to define the  
> > terms precisely, but I think that's independent of my original point,  
> > i.e. that the vaguer the terms, the greater the likelihood that  
> > someone exercising the license will interpret what they're doing as  
> > within the scope of allowable uses, while the person offering the  
> > license will find the use to be unacceptable.  Problematic, since the  
> > more that happens, the worse it is for the Sampling License.
> >
> >
> > > 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.
> >
> > [CG} Don, I appreciate the flexibility that the vagueness buys you.  
> > Do you appreciate the problems that it introduces?
> >
> >
> > > > 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.
> >
> > [CG] Yes, all of that's fine philosophically, but it also apparantly  
> > makes for a pretty bad fit with a legal license drafting exercise,  
> > kind of a mismatch of excellent motivation and inappropriate  
> > instrument.  I.e., with all this uncertainty, don't you think that at  
> > some point you could be creating more murk than shedding light? Might  
> > some other vehicle be better suited to the task?
> >
> >
> > > > 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.]
> >
> > [CG} Great, thanks.  Before I didn't understand the SL was to be part  
> > of the existing CC license.  So does this mean in the end that rather  
> > than redundantly enumerating the exclusive rights again in this  
> > section, you'll be relying on that other language?
> >
> >
> > > > 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.]
> >
> > [CG]  I see.  Hm, do you think you might need, or it might be better  
> > to have, separate licenses instead of alternate versions of this  
> > language?  It could get really confusing to conditionalize the same  
> > language to handle both kinds of attribution requirements, especially  
> > if there are various options for the SL.
> >
> >
> > > > 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.
> >
> > [CG] Well, certainly it affects the warranty, but it seems as though  
> > it also relates deeply to the scope of the license (cases where it  
> > can and can't be used, how it's promoted, framing language, etc.). In  
> > other words, people will have to be told that although the Sampling  
> > Licence is useful for people who want to allow others, e.g.  
> > Negativland to make collages incorporating their work, it is most  
> > definitely .not. useful for e.g. Negativland to authorize others to  
> > make collages incorporating Negativand's collages (if they contain  
> > unauthorized copyright-protected elements).
> >
> >
> > > > 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.
> >
> > [CG} OK, so you see the same issue I do there.  Good to know.
> >
> >
> > > > 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.
> >
> > [CG] OK.  How would that work exactly?  Some sort of list of  
> > descriptions of the unauthorized elements?  That could be useful in  
> > some cases, I suppose.  Though, thinking about audio specifically,  
> > it'd be harder to do for music elements than verbal things.
> >
> >
> > > > 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.  ]
> >
> > [CG] Yes, as you point out, the warranty language will be key to the  
> > viability of the SL.  This seems like another area where making the  
> > same language work for both the regular CC license and the SL could  
> > make it monstrous to read... are you -sure- you want the SL not to be  
> > separate?
> >
> > ..end..
> > _______________________________________________
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> > http://lists.ibiblio.org/mailman/listinfo/cc-sampling
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Glenn Otis Brown                                       
glenn AT creativecommons.org
Executive Director                                                       
   t +1.650.723.7572
(cc) creativecommons 		                                  f  
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