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

[Don Joyce <dj AT webbnet.com>]

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

Catherine,

I understand this apprehension, but I still can't agree that, in reality, there is any danger to legal fair use by making some degree of it more available in a whole new variety of creative works and labeling it as a usable form of fair use. What would you call it? (I guess that's our debate here, isn't it) Our license is allowing all sorts of practices which have previously only been known as "fair uses." There is no other association with such restriction-free re-use practices. Codifying some degree of fair use (no payment and no permission, the foundation of fair use, is still in effect here) is not codifying or limiting the entire concept in any actual way. Section 107 is now unremovable, and will always remain there as "pure" fair use available to practically no one under any actual circumstances. In the meantime, it's fine to have some slightly lesser degree of fair use promoted and in actual use and called fair use in general, because the motivating principles are all exactly the same in any degree of fair use - to facilitate a free (or more free at least) and uncensorable re-use of cultural material in the creation of new cultural material. It is this concept, summed up in the term fair use, which I would want to closely associate with this license.

Your last sentence is especially true, however, and I'm thinking creating this license (including naming it) is an important opportunity to get this mentally evolving "common law" doctrine moving a little faster in the direction we're going.

 

Perhaps a title like "Modified Fair Use" would get this across?

DJ 

> I agree -- in today's environment the
> copyright act is a highly lobbied document and any more explicit
> codification of fair use would likely limit this doctrine.  Just
> look at what happened with the DMCA exemptions.  Remember that
> Section 107 was written to codify the judge-made fair use doctrine,
> not to bound it.  Especially with new media and new artistic
> techniques, I think fair use is necessarily an evolving common
> law-style doctrine.
>
> -----Original Message-----
> From: cc-sampling-bounces AT lists.ibiblio.org
> [mailto:cc-sampling-bounces AT lists.ibiblio.org]On Behalf Of Glenn
> Otis
> Brown
> Sent: Saturday, September 27, 2003 1:41 PM
> To: dj AT webbnet.com; cc-sampling AT lists.ibiblio.org
> Subject: Re: [cc-sampling] Yet more name
>
>
> 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)
_______________________________________________
cc-sampling mailing list
cc-sampling AT lists.ibiblio.org
http://lists.ibiblio.org/mailman/listinfo/cc-sampling



This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. Any review, copying, or distribution of this email (or any attachments thereto) by others is strictly prohibited. If you are not the intended recipient, please contact the sender immediately and permanently delete the original and any copies of this email and any attachments thereto.