[Foundation-l] Clarification to existing resolutions

[Gregory Maxwell]

On 5/16/07, Erik Moeller <erik at wikimedia.org> wrote:
> I'm not convinced that the current CC licenses establish any new
> restrictions, and those who claim that they do should take that
> discussion directly to Creative Commons. There is no malicious intent
> here on the part of CC, and so I don't see why people don't try to
> work out any issues that there may be directly with the people who
> _wrote_ the license.

I took the complaint to the Creative Commons in December when I saw a
private draft of the text. My message went unanswered, however the
moral rights text was omitted from all the public drafts so I
considered the matter resolved.

Apparently it was not. Generally CC's approach to such matters appears
to be to advocate whatever they believe will maximize adoption of
their licenses and brand recognition. As such, refusing to accept
licenses with problems is a way to address such issues which is likely
to be effective when pointing out the problem is ineffective as it was
in this case.

Surely I can raise issues without an assumption of bad faith, or even
the presumption of incompetence.  I am not concerned with the motives
behind the decision to include this text, only the results.

There are two possible interpretations of the text:
1) The it has no impact on your obligations under the license.
2) That it imposes restrictions on derivatives where they otherwise
wouldn't exist.

(1) doesn't make sense. Why would anyone intentionally add a
null-effect term to a license? It only creates the potential for
confusion and disappointment.

I can't see how we can possibly say that the freedom to make
derivatives the original author might dislike is an *essential*
property of free content licenses and yet not encourage free content
licenses to explicitly provide this essential right to the greatest
extent allowed by law.

That some free content licenses ignore matters outside of copyright is
one matter: at least in a dispute I could refer to the language of the
licenses the show that the licensor intended to permit derivative to
the greatest extent possible. However, any text which actively implies
that the right to make and distribute derivatives is dependant on the
preference of an upstream author eliminates my ability to argue that
the intention of the license was to maximally release me from such
restrictions.

Since the behavior of copyright everywhere is that no derivative is
permitted without the explicit permission of a license, I do not see
how (1) could be considered a reasonable reading of "Except as
otherwise agreed in writing by the Licensor or as may be otherwise
permitted by applicable law ... You must not distort, mutilate, modify
or take other derogatory action in relation to the Work which would be
prejudicial to the Original Author's honor or reputation" in any case.

The only way I can read that test as not creating a limitation is if I
adopt a highly styled usage of English which allows me to assign
whatever meaning I wish to whatever word I miss. No US court would
endorse such a (ab)use of language.