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

Robert Rohde rarohde at gmail.com
Mon Dec 3 02:52:03 UTC 2007

On Dec 2, 2007 6:24 PM, Fred Benenson <fred.benenson at gmail.com> wrote:

> 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
> license.
> 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.
> F
> 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.

I am not a lawyer, but in my opinion, it is certainly possible to tie future
licensing to use.  Rather than tying it to the technical meaning of a
"derivative work", you tie it to the more fundemental right to distribute.
In other words, one could say something like: "You may not use or distribute
this image unless any accompanying text is licensed under X, Y, or Z".

Obviously a formal license needs a lot more detail to address the variety of
embeddable media, the limits of defining acompanying text versus independent
collections, and other issues.  However, the basic effect of a license is to
tell others when and other what conditions material can be used.  There
would appear to be no fundemental reason that one of those conditions
couldn't be applying a free license to linked materials.

-Robert A. Rohde

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