Jimmy Wales jwales at wikia.com wrote:
On Jul 14, 2007, at 2:05 PM, Delphine Ménard wrote:
I believe you are completely mistaken. The way *i* understand it, the CC 3.0 licence simply states clearly in the text of the licence rights that exist and can't be waived in those countries where they exist anyway.
In clear, the licence does not *add* any restriction that is not there in the first place.
This is correct, but I have great sympathy for those who find it confusing. I am pushing to have some kind of clarification as quickly as possible.
But everyone important assures me that there is NO intention to include moral rights as a part of CC 3.0 attribution.
Then surely you can, as a board member of the Creative Commons, get an official statement on this matter.
I am fairly sure I was told otherwise by Lessig some time ago: that the CC-3.0 licenses are designed to increase the ability for authors to enforce their moral rights by making the free license grant contingent on moral rights being honored.
Perhaps I am misunderstanding, but I've seen CC criticized by those who believe that free licenses are bad because they allow a creator's work to be used in a manner which is against the creator's wishes. I believed that the words "nothing in this license impairs or restricts the author's moral rights" were added to '"human readable text" for all of them (including the US form, which lacks the objectionable clause in the license proper) along with the new clause (for non-US) with the explicit intent of ending that criticism.
There is a fundamental conflict between the notion of protecting all "moral rights" and distributing under a free content licenses. While the moral right of attribution has no serious interaction with Free Content, all other forms of moral rights do... and in the locations where moral rights are functional they are part of copyright law, and addressed in copyright related contracts.
It shouldn't be a shock to find Creative Commons in the center of a dispute between "freedom from the perspective of the public" and "freedom from the perspective of a content creator", since their alignment on that front has brought them under fire many times over again.
When we say "free license" we are specifically talking about a work which has been so freed by an author that he can't stop your use even if he finds it distasteful. To accept any less would be leaving a great liability in the hands of reusers: they can only use the "free" work until the author demands otherwise, and then they must either stop or spend a lot of time and money in court.
Frankly, that sounds a lot like the situation around the use of most unlicensed works today (free to use until you're told NO) ... and it doesn't sound like free content at all.
At a minimum, I think Creative Commons needs to make an official statement clarifying its intentions. However, this isn't sufficient. The intent of the license author is going to have minimal sway in court; what will be material is the *exact text*, the understanding of the licensee, and the understanding of the licensor.
A really good free content license would clearly state that it is the intention of the licensor to release the work under conditions which allow recipients to reuse it without fear of a legal attack from the licensor just because he has found the reuse personally or politically distasteful. In other words, to the greatest extent possible the license should express a general intention to release "moral rights"-related restrictions which conflict with the explicit goals of free content.
I don't think that we need to demand that our accepted licenses all be ideal ones. A license which failed to mention this sort of intent explicitly would be neutral from this perspective.
But cc-by-sa-3.0's language is worse than neutral. It explicitly brings up these "moral rights" restrictions. The full purpose of bringing them up is unclear, but it is clearly not intended to release anyone from anything. At best this term has no effect, but at worst it compromises the free status of the license.
Our ability to be confident in the freedom of a work is actually more important than the freedom itself. People who can't be found, who have nothing to lose, who employ many attorneys, or for whom a copyright battle would be good PR are already fully ignoring copyright law today. They don't need free licenses, much less good ones.
But the rest of the world does.
We are one of the largest repositories of liberally-licensed content in the world. We are almost certainly the largest repository of content which is Free Content in the strong sense (enabling derivatives, no discrimination against natures of use), and we are a budding content creation powerhouse.
As such, we have a *social responsibility* to make sure that our mission is effective, that freedom is provided, and that the licenses are done right. The -3.0 licenses clearly have problems. Even if I am incorrect about the extent to which a court would conclude that they impose moral rights, they do inarguably have a significant confidence-damaging problem with their clarity.
Jimmy, I have a lot of trust in your judgment, but I think I need to specifically ask you to sit back and consider this subject carefully under each of the several hats you wear. You are visionary about the importance of content which isn't merely no-cost but which provides freedom. You are a board member for the Wikimedia Foundation, responsible for its long term well-being. You are an internet entrepreneur whose companies profit from content creation communities. You are a board member for Creative Commons with the expected responsibilities. And you are the father to a child who will inherit the social and informational legacy we are all creating.
It's my view that the only benefit from anything less than a slow and careful handling of these license matters is a minor increase the short-term popularity of the Creative Commons brand. I don't think that haste on the subject of licensing is beneficial in any of the hats you wear.
Cheers. Greg.
On 7/17/07, Gregory Maxwell gmaxwell@gmail.com wrote:
At a minimum, I think Creative Commons needs to make an official statement clarifying its intentions. However, this isn't sufficient. The intent of the license author is going to have minimal sway in court; what will be material is the *exact text*, the understanding of the licensee, and the understanding of the licensor.
I agree we need more clarity on this issue. Moral rights may seem like a harmless protection, but in practice, authors & copyright holders have frequently sued exactly under moral rights provisions to prevent what many would consider entirely legitimate parody / "fair use". Surely we should strive to ensure that the licenses grant as much freedom to re-users as possible.
On the other hand, I'm not happy with the CC 3.0 licenses being "banned" from Wikimedia Commons. That seems like a drastic step where simply more discussion and possibly some rewording of the license text is required. If CC takes the official stance "We wish to protect author's moral rights in our licenses", that's a different story. But none of the public statements regarding the licenses seem to be going in this direction.
Given the legal answers provided in this thread, I support CC 3.0 being fully permitted on Wikimedia Commons, independently from a separate discussion about the wording of the moral rights clause in a newer version of the license. Regardless, I've asked Mike Godwin to weigh in if he wants to.
On 7/20/07, Erik Moeller erik@wikimedia.org wrote:
On 7/17/07, Gregory Maxwell gmaxwell@gmail.com wrote:
At a minimum, I think Creative Commons needs to make an official statement clarifying its intentions. However, this isn't sufficient. The intent of the license author is going to have minimal sway in court; what will be material is the *exact text*, the understanding of the licensee, and the understanding of the licensor.
I agree we need more clarity on this issue. Moral rights may seem like a harmless protection, but in practice, authors & copyright holders have frequently sued exactly under moral rights provisions to prevent what many would consider entirely legitimate parody / "fair use". Surely we should strive to ensure that the licenses grant as much freedom to re-users as possible.
On the other hand, I'm not happy with the CC 3.0 licenses being "banned" from Wikimedia Commons. That seems like a drastic step where simply more discussion and possibly some rewording of the license text is required. If CC takes the official stance "We wish to protect author's moral rights in our licenses", that's a different story. But none of the public statements regarding the licenses seem to be going in this direction.
Given the legal answers provided in this thread, I support CC 3.0 being fully permitted on Wikimedia Commons, independently from a separate discussion about the wording of the moral rights clause in a newer version of the license. Regardless, I've asked Mike Godwin to weigh in if he wants to.
How about this: * CC 3.0 is permitted on Commons... * ... but until we have clarification, it will not be put into the select box of licenses on the upload page. So, anyone using CC 3.0 has to put it in the text manually, which should mean they know what they're doing. * Also, the CC 3.0 template should contain a "warning" towards the moral rights issue, so reusers can't say they didn't know about this.
Once there is an official statement by CC that clears CC 3.0 for "full" use on Commons, we can treat it as any other valid license.
Cheers, Magnus
On Fri, 20 Jul 2007 11:15:05 +0300, Magnus Manske magnusmanske@googlemail.com wrote:
- Also, the CC 3.0 template should contain a "warning" towards the
moral rights issue, so reusers can't say they didn't know about this.
All our CC license tags should probably include a summary like CC has on their pages. For cc-by-sa-2.0-de the summary is like this: URL:http://creativecommons.org/licenses/by-sa/2.0/de/. BTW, pay attention to the last line of the summary (on the white background).
On 7/20/07, Magnus Manske magnusmanske@googlemail.com wrote:
Once there is an official statement by CC that clears CC 3.0 for "full" use on Commons, we can treat it as any other valid license.
CC representatives have already responded here on this list with a clear legal position that the moral rights clause does not add any new restrictions, and indicated that they would be willing to improve the wording in future licenses. What more can they do?
Erik Moeller wrote:
On 7/20/07, Magnus Manske wrote:
Once there is an official statement by CC that clears CC 3.0 for "full" use on Commons, we can treat it as any other valid license.
CC representatives have already responded here on this list with a clear legal position that the moral rights clause does not add any new restrictions, and indicated that they would be willing to improve the wording in future licenses. What more can they do?
Add a footnote on the license page explaining that these clause doesn't add restrictions. It is not only what the license says, but also what the licensor understood when he chose the license.
We're working on various ideas based on the conversation on this list including things like footnotes, updating the FAQ and updating the license.
One of the issues on our side is that our license is the product of a public comment period, long discussions with the community involving lots of people and lots of time. We can't just change licenses top down. On the other hand, the intent, as we have said, is not to add additional restrictions with the moral rights clause. I think we can figure out a way to make this more clear. IANAL and I'll have to leave it up to the legal team to determine how to clarify the language in the license, but as one of the "CC representatives" I would like to make it clear that I don't think there is disagreement about what we should say and that we could state it in a way that could be more clear. I think we're now trying to work out the process to make this happen. I'll keep you posted.
- Joi
On Jul 20, 2007, at 11:25 JST, Platonides wrote:
Erik Moeller wrote:
On 7/20/07, Magnus Manske wrote:
Once there is an official statement by CC that clears CC 3.0 for "full" use on Commons, we can treat it as any other valid license.
CC representatives have already responded here on this list with a clear legal position that the moral rights clause does not add any new restrictions, and indicated that they would be willing to improve the wording in future licenses. What more can they do?
Add a footnote on the license page explaining that these clause doesn't add restrictions. It is not only what the license says, but also what the licensor understood when he chose the license.
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Happy to hear it is being worked on.
I proposed a footnote because it would make things clearer for those reading the license (they don't need to see the FAQ for it, although the footnote could simply point to the FAQ ;) ) and also is a lot easier than creating a new license.
Luckily, as the license doesn't really mean that moral rights are supported, the comments and discussions aren't lost, as what they agreed is the same (unless they misunderstood it too, or enjoyed confusing wording).
On 7/20/07, Erik Moeller erik@wikimedia.org wrote:
CC representatives have already responded here on this list with a clear legal position that the moral rights clause does not add any new restrictions, and indicated that they would be willing to improve the wording in future licenses. What more can they do?
Their statements on the subject are certainly welcome, but they are not courts, and their "clear legal position" is at best a legal opinion. That they wrote the licences is not important, it is the courts who interpret and apply the words used.
The problem with the "except" clause is that the jurisdictions in which moral rights protection is weak do not really "permit" uses incompatible with moral rights, they just do not make unlawful those uses. Their laws are silent on the matter. Any law student can tell you that "lawful" is not the same as "not unlawful".
we (or a court, or anyone applying the licence)
I don't want to sound defensive, but we had this wording out there for public comment and we have involved a large number of people from many countries. While it is "at best a legal opinion" it is more than the legal opinion of a single lawyer. It is the consensus of a community of lawyers, judges and legal experts. It is true that the courts will determine the interpretation, but I would just caution making it sound like our opinion is the opinion of some single person with less than an "any law student" worth of experience.
Having said that, we are thankful for the feedback and we are working to clarify our wording based on your feedback. Also, while IANAL, many of the points you people have made make a lot of sense. I hope we can find a better way to try to get people from this community involved during the discussion phase of the license drafting. ;-)
One more thing to remember is that the current wording is the wording on the generic license. We really hope that most people won't use the generic license, but will use their local licenses. We are working hard to make the licenses more precise in the local versions and I believe that these will be less ambiguous about the moral rights issue. Maybe those of you who disagree with the generic license can take a look at some of these local ones and see if they meet your criteria.
- Joi
On Jul 21, 2007, at 11:51 JST, Stephen Bain wrote:
On 7/20/07, Erik Moeller erik@wikimedia.org wrote:
CC representatives have already responded here on this list with a clear legal position that the moral rights clause does not add any new restrictions, and indicated that they would be willing to improve the wording in future licenses. What more can they do?
Their statements on the subject are certainly welcome, but they are not courts, and their "clear legal position" is at best a legal opinion. That they wrote the licences is not important, it is the courts who interpret and apply the words used.
The problem with the "except" clause is that the jurisdictions in which moral rights protection is weak do not really "permit" uses incompatible with moral rights, they just do not make unlawful those uses. Their laws are silent on the matter. Any law student can tell you that "lawful" is not the same as "not unlawful".
we (or a court, or anyone applying the licence)
-- Stephen Bain stephen.bain@gmail.com
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On 21/07/07, Joichi Ito jito@neoteny.com wrote:
One more thing to remember is that the current wording is the wording on the generic license. We really hope that most people won't use the generic license, but will use their local licenses.
I didn't realise that. Why is that? There doesn't seem to be anything on the CC website that pushes people to choose a 'local' version of the licenses. I would have thought country-specific licenses for material on the internet just makes everything more messy and complicated. (And instead of a site having to support, say, 4 licenses, they may have to support 4x100s of licenses.)
regards, Brianna
The licenses are all compatible. If someone releases something under a US license, then someone may use that work in Germany under the German license.
That's what all the porting is all about.
On Jul 22, 2007, at 5:10 PM, Brianna Laugher wrote:
On 21/07/07, Joichi Ito jito@neoteny.com wrote:
One more thing to remember is that the current wording is the wording on the generic license. We really hope that most people won't use the generic license, but will use their local licenses.
I didn't realise that. Why is that? There doesn't seem to be anything on the CC website that pushes people to choose a 'local' version of the licenses. I would have thought country-specific licenses for material on the internet just makes everything more messy and complicated. (And instead of a site having to support, say, 4 licenses, they may have to support 4x100s of licenses.)
regards, Brianna
Commons-l mailing list Commons-l@lists.wikimedia.org http://lists.wikimedia.org/mailman/listinfo/commons-l
On Jul 23, 2007, at 9:10 JST, Brianna Laugher wrote:
On 21/07/07, Joichi Ito jito@neoteny.com wrote:
One more thing to remember is that the current wording is the wording on the generic license. We really hope that most people won't use the generic license, but will use their local licenses.
I didn't realise that. Why is that? There doesn't seem to be anything on the CC website that pushes people to choose a 'local' version of the licenses.
We haven't done that on our site yet, but we have been doing it verbally and should do it more on the website. As Jimmy says, they are "compatible" and people should really choose the local license that makes sense for them. The generic license, in a way, is just a reference for the jurisdictions to make their local versions.
- Joi
On Jul 17, 2007, at 1:16 PM, Gregory Maxwell wrote:
I am fairly sure I was told otherwise by Lessig some time ago: that the CC-3.0 licenses are designed to increase the ability for authors to enforce their moral rights by making the free license grant contingent on moral rights being honored.
Egads, no!
At a minimum, I think Creative Commons needs to make an official statement clarifying its intentions. However, this isn't sufficient. The intent of the license author is going to have minimal sway in court; what will be material is the *exact text*, the understanding of the licensee, and the understanding of the licensor.
But the exact text is not problematic at all. You are misunderstanding it.
Jimmy, I have a lot of trust in your judgment, but I think I need to specifically ask you to sit back and consider this subject carefully under each of the several hats you wear. You are visionary about the importance of content which isn't merely no-cost but which provides freedom. You are a board member for the Wikimedia Foundation, responsible for its long term well-being. You are an internet entrepreneur whose companies profit from content creation communities. You are a board member for Creative Commons with the expected responsibilities. And you are the father to a child who will inherit the social and informational legacy we are all creating.
Of course I agree with all of that, and I am telling you, you are misunderstanding the situation here.
--Jimbo