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

Benj. Mako Hill mako at atdot.cc
Tue Dec 4 08:24:10 UTC 2007

<quote who="SJ Klein" date="Sun, Dec 02, 2007 at 02:22:41PM -0500">
> > 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.
> That is most interesting.
> However, to the point above, one could still make a license for 
> photographers which expressly states that one can reuse a photograph
> only if the surrounding text and other media (defined separately from 
> 'derivative work') are available under a similar license.
> The license [call it SA-X] under which the photograph itself is licensed 
> would change. the copyleft clause would be passed on through derivatives 
> and bundling (or however you name combining text with an image), and could 
> specify a set of licenses that could be used for surrounding media.
> This need not pass on the 'bundling' clause to the surrounding works. 
> could be compatible with both by-sa and gfdl, whose notion of further 
> compatibility is related to derivatives.

Until I've thought about this more and talked to some lawyers, I won't
speculate on how this might work or what legal barriers to making this
work might exist. That said, I'm excited by the possibility.

I was not trying to imply that such a strong copyleft license was
impossible, only that in the current situation the GFDL and CC BY-SA
are effectively identical in their (in)effectiveness in this regard.


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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