[Foundation-l] [Commons-l] Requirements for a strong copyleft license

Fred Benenson fred.benenson at gmail.com
Mon Dec 3 02:24:15 UTC 2007

Question for the lawyers here -- even if we *wanted* to add stronger
copyleft to a CC license, say creating CC-BY-SA+, could we?

Isn't the whole problem here that the licenses rely on the various
definitions of "derivative works" for different mediums?

 That is, the GPL can have strong copyleft because including source from
other GPL works into a new work necessarily creates a derivative work, and
same with music getting synched to video (or vice versa) with respect to
CC-BY-SA -- in all of these cases a derivative work is created and the
license stipulates that derivative works must be licensed under the same

The reason this has good legal force is because "derivative work" has a
strict and specific definition in law that was formed completely
independently of the GPL and CC.

As I'm sure everyone who's been following this thread to this point knows,
there isn't much precedent for determining whether embedded images in text
creates a derivative work.  In the US there are some cases that establish
that doing so *does* create a derivative work, and some cases that say that
doing so *does not* create a derivative work. So that isn't much help.

 So would we be creating our own definition of a derivative work so that we
could apply stricter copy left?

This is troubling because whatever definition we might come up with, it
surely wouldn't have the legal precedent and force that the definition of
"derivative work" does in actual US copyright law.


PS: I just had the WSJ use one of my BY-SA photos in an article giving me
only attribution, so I'm acutely interested in this topic.

On Dec 2, 2007 8:36 PM, Gregory Maxwell <gmaxwell at gmail.com> wrote:

> On Dec 2, 2007 9:42 AM, Anthony <wikimail at inbox.org> wrote:
> > On Dec 2, 2007 8:57 AM, Brianna Laugher <brianna.laugher at gmail.com>
> wrote:
> > > Is "weak copyleft" not comparable to the LGPL? LGPL appears to have a
> > > place; why not "weak copyleft"?
> > >
> > I think the argument is specific to images, which tend not to have as
> > significant of copyrightable changes made to them as software
> > libraries.  Sure, maybe a newspaper cleans up an image, lowers the
> > resolution, and converts it to black and white before including the
> > image in the newspaper, but this is not a significant creative change,
> > so the benefit of having those changes released under a free license
> > is negligible.
> >
> > For software libraries, weak copyleft serves a purpose.  For text,
> > weak copyleft serves a purpose.  For images, much less so.
> *Exactly*.
> Copyleft makes works somewhat *less free* but in return if it's well
> applied it keeps the covered and works built from the covered work
> free, thus expanding the pool of freely available works.   It's a
> trade-off.
> When people build new copyrightable works out of images they tend to
> use them as near-verbatim components.  There are many stock photo
> companies which bring in, collectively, over a billion dollars per
> year licensing images for this kind of use (for example Getty Images
> alone has an income of around 800 million/yr,
> http://edgar.sec.gov/Archives/edgar/data/1047202/000119312507240536/d10q.htm
> ).
> Like software, most documents are written for purposes other than sale
> (personal, private, special purpose limited circulation uses, etc).
> This means that when we copyleft our illustrations we're creating a
> substantial incentive for people to freely license works: If we had a
> copylefted collection of comparable size, character, and quality to
> Getty's collection we'd have a billion dollar a year incentive to
> freely license works... works which wouldn't otherwise be freely
> licensed because the default is non-free, or because people think
> "just maybe this will make us $$$$ in the future".
> Sure, the groups who make copyrighted works for the sole purpose of
> selling those works for a profit aren't going to be especially
> interested in such an offer. Microsoft isn't especially enamored with
> the GPL.  Perhaps people will call me a zealot for not being too sad
> about a failure to maximally assist groups which are locking up
> content (probably forever) behind restrictive licenses. :)  Besides,
> there is still a huge amount of PD and non-copyleft freely licensed
> works for them to take.
> Now back to weak copyleft for images.   Virtually all of that billion
> dollar use is for verbatim or nearly-verbatim inclusion of images into
> larger documents and articles. Usually the modifications made are so
> trivial that it's easier to perform them yourself, especially since
> content licenses don't have an easy way to ask for a machine-readable
> corresponding source.
> As a result a 'weak copyleft' wouldn't have the billion dollar/yr
> incentive to freely license new works. Since it wouldn't have most of
> the positive effect, I think it's a bad trade-off.   We should be
> encouraging authors to use more liberal licenses (cc-by, and 'PD', for
> example) if they are not interested in real copyleft, or if
> copylefting that particular work will not be beneficial.
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