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

[Don Joyce <dj AT webbnet.com>]

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

I can agree with all this, Glenn, really I see every point. I mentioned you had good reasons for not using this term. That said, call me crazy, but I would still associate our license language with the term fair use throughout. I still see equating our limited rights with unlimited fair use as a good thing, regardless of these concerns. This is my artistic intuition about creating mental gateways that are actually big enough to let a lot of people through. What are the dangers vs the benefits from doing this thing? All your reservations are well considered, but probably very ineffective in actually spreading an awareness and acceptance of the fair use concept of cultural re-use, which is so crucial to encouraging the adoption of this re-use license and all that follow.

You're right, fair use is unexpandable, bless it's heart, yet it is in effect practically nowhere, so a lot of good that does us. In that since, to being into greater play any increased degree of fair use, which this license does, is to "expand" the legal concept at least into partial reality, Fair use being now immanently known for characterizing practically nothing in reality.

DJ  

> one problem is that "fair use"
> is fundamentally not the same as
> voluntarily granted use. fair use applies whether the c-holder likes
> it
> or not. there is no way to voluntarily expand fair use. 
>
> yes, by making clear there's a big chunk of society that thinks
> the
> current fair use guidelines are too narrow, we are leading by
> example,
> with the hope that one day
> but it's important to make clear that what we're doing is above
> and
> beyond fair use, and therefore is it of limited usefulness to equate
> what
> we're doing with fair use at all.
>
> it's also dangerous. fair use's uncertainty is a weakness, but also
> a
> strength. even if we could "codify" fair use, as you
> suggest, i don't
> think it would be a good idea, because opponents of fair use would try
> to
> turn that "codification" into an ossification, petrifying
> fair use in its
> place the moment we draw a line.
>
> On Sat, 27 Sep 2003 01:42:58 -0700, "Don Joyce"
> <dj AT webbnet.com> said:
> > 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
> >_______________________________________________
> >cc-sampling mailing list
> >cc-sampling AT lists.ibiblio.org
> >http://lists.ibiblio.org/mailman/listinfo/cc-sampling
---------------------
Glenn Otis Brown
Executive Director
Creative Commons
glenn AT creativecommons.org
+1.650.723.7572 (telephone)
+1.415.336.1433 (mobile)