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

[Chris Grigg <chris AT grigg.org>]

Christopher M. Kelty wrote:
> ...*But* if you put it in the license you hurt people who are trying fair
> use cases that you don't even know about.  When they plea with the
> judge that their use is fair use, and the judge says "But there is a
> CC license that lets you assert your use fair use! Why didn't you use
> that?  You must not have _really_ meant it at the time..." then you
> have helped along the elimination of fair use as a federal right and
> made it into a contractual agreement.

I like your spirit, but I don't understand this section.  The 
sampling license is something a person puts on a work when it's 
released, telling others what the rights owner thinks is OK for 
people like samplers to do with it. It's not something a person like 
a sampler would claim entitles them to re-use a work that wasn't 
released under the sampling license in the first place.  So it 
doesn't overlap with a typical copyright infringement lawsuit / fair 
use defense situation at all, does it?

        -- C


At 8.27a -0500 2003.09.20, Christopher M. Kelty wrote:
> IANAL _and_ this makes me nervous.  I support mentioning fair use
> everywhere BUT in the text of the license, and I support getting as
> many people as possible to make use fair use as much as possible.
> Because, as I learned from Professor Boyle, if you don't use it it
> falls off.
>
> *But* if you put it in the license you hurt people who are trying fair
> use cases that you don't even know about.  When they plea with the
> judge that their use is fair use, and the judge says "But there is a
> CC license that lets you assert your use fair use! Why didn't you use
> that?  You must not have _really_ meant it at the time..." then you
> have helped along the elimination of fair use as a federal right and
> made it into a contractual agreement.  I'm sure the "lawyers first
> prioity' _is_ courtroom convenience, but nothing else matters in this
> case.  If you want people to make use of fair use, hit the streets
> (and the airwaves and wherever else discriminating people gather), and
> not the courtroom.
>
> ck
>
>
> On Sat, Sep 20, 2003 at 04:39:36AM -0700, Don Joyce wrote:
> >  I brought this up earlier - that the license might acknowledge it's
> >  close relation to the fair use concept in general - but the lawyers
> >  are terribly afraid of associating this with "fair use."
> >  Their reasons will sound good, (restrained by logic again!) but they
> >  are not, because we should, because this is not a license for lawyers.
> >  Making this association is simply an excellent reference point for
> >  creators, and spreads the general concept of fair use in the arts,
> >  and that will serve us all much better in the end than fears of
> >  possible legal confusion in this license will.
> >  There's no getting around the fact that the lawyers' first priority
> >  in writing law is courtroom convenience, not necessarily relating to
> >  the less than convenient way things actually work outside the
> >  courtroom.
> >  DJ
>  >
>  >
>  > >How is what the sampling/c&p license would allow any different from
>  > >what 17 USC section 107, Limitations on Exclusive Rights: Fair Use,
>  > >allows?  Just the attribution requirement, and the implied promise
> >  >not to sue?  Maybe the name should be something like 'Fair Use
> >  >Encouraged'.
> >  >
>  > >      -- C