[Commons-l] CC-3.0 and Jimmy's comment on CC-3.0.

[Gregory Maxwell]

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.