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

[Don Joyce <dj AT webbnet.com>]

Title: Re: [cc-sampling] Yet more name

ck,

I wonder if this is truly the best way to promote fair use, leaving it entirely up to one's imagination and never defining it as legal code. It seems to me a lot more would be accomplished towards actually expanding fair use, especially in the arts where it is so sorely lacking, by codifying a whole lot of the most necessary instances as fair use, without limiting the concept to that code. In other words, I would expect that fair use, like "freedom," will constantly be trying to expand from what it is at any given "now." Aren't we doing it now? There's no reason to ignore the useful, if temporary, guidence that codifying whole new areas of fair use can bring, as this license will. First you expand the concept, then you can expand the practice. Then you can expand the edges of that concept, which again expands the practice, etc. etc. Then we die. This is discounting all comets or other unexpected cosmic crashes of human civilization in which we are thrown back to being scuttling hominid mutants with no written laws at all, but even then, the above process will go to work on our mutant hominid unwritten laws.

DJ

you're right, it doesn't overlap in a direct sense.  The scenario I'm
fantasizing about is more cultural, a time when courts, judges,
corporations, your lawyers decide that the proper way to assert fair
use is to use a license-- it moves the issue from a federal law (USC
17 blah blah) to contract law, or even commercial law.  It codifies
fair use in a particular kind of practice (because the CC license
says: your use of this is fair use, go ahead-- it gives permission to
use fair use when we already have permission).  we want to avoid that
because we want the maximum number of things to qualify as fair use
without needing a licence to do so.  any clearer?

ck




On Tue, Sep 23, 2003 at 12:04:26AM -0700, Chris Grigg wrote:
> 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
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