[Foundation-l] What's wrong with CC-BY-SA?

Benj. Mako Hill mako at atdot.cc
Sun Dec 2 16:38:37 UTC 2007

<quote who="Robert Rohde" date="Sat, Dec 01, 2007 at 03:43:14PM -0800">
> On Dec 1, 2007 3:32 PM, Erik Moeller <erik at wikimedia.org> wrote:
> > On 12/2/07, David Gerard <dgerard at gmail.com> wrote:
> > > Greg will of course correct me if I'm wrong - but I suspect the
> > > problem is that lots of people want CC-by-sa because it's easier
> > > to reuse stuff ... but that GFDL makes it hard to reuse stuff is
> > > considered a *feature* by many, e.g. photographers who license
> > > work as GFDL but also sell it privately. That is: the thing that
> > > makes GFDL a pain in the backside for a wiki is precisely why they
> > > like it, and they want it to stay a pain in the backside for that
> > > reason.
> >
> > Worst possible reason to like a license, ever. :-)
> >
> > Let's make a strong copyleft license that appeals to photographers.
> In my opinion, that is only possible if the copyleft provisions
> unambiguously transfer to text written to accompany the image.
> Anything less, is little better than CC-BY.  Most people that use
> photographs do so for the purposes of illustration rather than for the
> purposes of making derivative images.  Hence copyleft provisions that
> apply only derivative images, and not to the text being illustrated,
> are intrinsically weak and of little impact.

My understanding, having talked to several lawyers about this issue, is
that this "difference" hangs on interpretation of case law about what
constitutes a derivative work. The answer to the question is incredibly
ambiguous and jurisdiction specific. 

It is, in fact, a matter of extra-license legal definitions and not of
license or what CC/FSF/SFLC thinks. The FSF and CC each have positions
on this that, in various jurisdictions, are each contradicted by
existing case-law. Neither license says anything in the text of the
license and neither plans to.

If the author of a work under BY-SA subscribes to the more expansive
definition of derivative work and litigates in a jurisdiction that is
friendly to it, they'll probably have luck. If they use the GFDL and are
in a jurisdiction that has precedent saying otherwise, they won't.

There is, as I have come to understand, no difference between the
licenses in this regard that would prevent compatibility.


Benjamin Mako Hill
mako at atdot.cc

Creativity can be a social contribution, but only in so far
as society is free to use the results. --GNU Manifesto
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