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

[Don Joyce <dj AT webbnet.com>]

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

We may be dealing with the indefinables of psychology here, but I disagree that using the term fair use in this license, (and I mean all over this license) will hurt others either unaware of this license or fighting for fair use elsewhere. Fair Use is hardly a "federal right" anyone knows about. At this stage, it is an obscure legal suggestion for losing most "infringement" cases if you rely on it. At this stage in its total submergence beneath commercial law, fair use barely exists at all. We have NOTHING to lose by trying to further publicize the general concept of fair use, especially in the arts, wherever possible, and especially in a new license that simulates so many of the concept's general qualities and, more importantly, its purposes.

In the instance you give, I bet the judge is not going to say what you said she will say. But what she does say may well be moderated by whatever level of fair use practice is extant and commonly understood to be desirable in society. THAT is an arts publicity campaign, not a hard to find law or license we need, and this awareness of the creative and cultural advisability of fair use must emerge from the arts and artists who understand the creative need, because the corporate culture business which now owns most of our culture doesn't give a freakin bleep about fair use, fears it like an income apocalypse (with absolutely no proof or experience to prove this) and will keep the concept in chains, accusing it of theft, for as long as they possibly can.  A free re-use license that touts itself as fair use friendly is excellent publicity, as well as a little tool to actually practice fair use. At this late date in our societal condition of condoning virtually no fair use in almost all cases, I would say the former quality is much more important than the latter to brand this license with.

DJ

  

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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