[Foundation-l] Creative Commons CC-BY-SA Draft Statement of Intent

[Robert Rohde]

On Fri, Apr 4, 2008 at 11:21 PM, Delirium <delirium at hackish.org> wrote:

> Erik Moeller wrote:
> > We are continuing our conversations about that particular aspect, and
> > my personal hope is that we will figure out a way to clearly state
> > through the license that adaptations such as a picture embedded into a
> > newspaper article trigger the share-alike clause, i.e. the newspaper
> > article would be CC-BY-SA licensed. (Or, as I would argue, in those
> > particular cases, any other DFCW compliant license.)
> >
>
> I think your parenthetical permission would be extremely necessary for
> us, because otherwise the hundreds of cc-by-sa images we have in our own
> GFDL Wikipedia articles would have licensing problems. IIRC, "our"
> position, mostly as expressed by Jimmy a few years ago, has been the
> opposite---that putting an image in a Wikipedia article is mere
> aggregation, and doesn't trigger the license of either the image or the
> text. Of course what we say we think the license is doesn't magically
> make it so, but we should probably not take an official position that
> would make our own usage not compliant...
>

This is a tricky issue that has never been tested in any court.  As you may
be aware FSF has stated that their intention was that aggregation be
narrowly drawn, and that aggregation was NOT intented to broadly allow
combining text and images in a single work the way we do.  The plain text:
"A compilation of the Document or its derivatives with other separate and
independent documents or works, in or on a volume of a storage or
distribution medium, is called an 'aggregate' ...", clearly covers things
like documents on a hard drive.  However, it would be an unusual reading to
consider an article as a "volume of a storage and distribution medium" or
that the image and text in such an article were "seperate and independent".

In fact, it is not hard to read that section and argue against existing
practice and say that added images to text creates "Modified Versions"
rather than "Aggregations".  If you take that reading then virtually all
images used on Wikipedia must be licensed under the GFDL, or very
unrestrictive terms (like PD) that directly allow GFDL licensing.  Adopting
that reading of the GFDL would imply that CC-BY-SA images simply shouldn't
be used.  (One could also argue the same point to conclude that all fair use
images are incompatible with the GFDL).  In other words, GFDL Wikipedia
articles already have licensing concerns that turn on a specific (and
perhaps unintended) interpretation of the GFDL.

It is an issue that the WMF projects have mostly been ignoring, which we can
get away with until it really makes it into court to decide the meaning of
that language, but it is very important in my mind that future licenses
(both GFDL and CC) address the merger and cross-compatibility issues.  The
flip side of this is that if the FSF wrote GFDL-2.0 simply to clarify what
was their apparent original intention, then GFDL-2.0 could be expressly
incompatible with fair use and CC-SA.  Presumably these discussions will aim
to prevent such a disruptive future version.

-Robert Rohde