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Re: Aggregation and Stronger SA

drew Roberts — 2012-05-21T01:06:40

On Sat, 19 May 2012 13:01:01 +0200, Francesco Poli
<invernomuto-XtQPfPCVGG7srOwW+9ziJQ< at >public.gmane.org> wrote:

Correct. I think it may have been a case of poor drafting on their part
though. I think they would want it to. Although perhaps it does not need
to in such cases and so it was left out on purpose and so it is really
not a case of poor drafting. In any case, it would not work the way I
want the new BY-SA to work for art.

As I say, perhaps it is not need at all in those cases for what the
GPLv3 intends to hold.

Because you can use your own copyrighted works in a copyrighted
compilation to restrict me from dealing in that work just as much as you
can use your copyright in the compilation to do so.

In the case of some odd assortment of works that do not get some
"super" copyright, I will take my lumps. Sell your copyrighted works and
my Free works on the same bit of plastic rather than two bits of
plastic, at least the environment may get a benefit out of that.


No, but the copyrights on the parts can be used to do harm. So why do I
case which copyrights you use to harm me?


Well then, let's get rid of the aggregate exception and go whole hog
viral if possible. Would that make you happy?

Look, when it comes to ***code*** the FSF takes the position that
non-Free code is immoral. As such, I am sure they would prefer there be
no non-Free code on any medium ever. I take it then that this clause in
the GPLv3 is based on some pragmatic calculus. It could also possibly be
another reason. Any suggestions for some possibilities?

One of my aims with making my works copyleft and Free is to give as
much advantage as possible to those "playing the Free game" whise not
giving those same advantages to those "playing the non-Free game" - If
you can make the case in those terms to me it might be more convincing.

all the best,

drew

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Re: NC Proposal No. 12: clarifying noncommercial

drew Roberts — 2012-05-19T11:51:31

On Fri, 18 May 2012 18:37:40 +0000, jonathon <jonathon.blake-Re5JQEeQqe8AvxtiuMwx3w< at >public.gmane.org>
wrote:

I don't get that last question jonathon.

Isn't it the same answer as:

Can the organization that sells content to libraries, include NC
licensed 
material in their offerings?

But isn't the pertinent question whether those libraries that
customarily rent books get NC licensed books and loan them out?

Are those libraries somehow restrained into only lending our rented
books? Cant' they rent one set of books and get the NC books in another
fashion?

all the best,

drew
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Re: Aggregation and Stronger SA

Francesco Poli — 2012-05-19T11:01:01

[...]

Do you really think that the GPLv3 aggregate exception can *never* apply
to non-copyrighted compilations?

I think we should interpret the language of the license taking its
spirit into account: it seems obvious that an exception that applies to
compilations when their resulting copyright is not used in a harming
manner (and other criteria are met), should be interpreted as applying,
all the more so, to compilations without any resulting copyright (when
the other criteria are equally met)...

[...]

I cannot see why you consider non-copyrighted compilations and
copyrighted "aggregates" (as defined in the GNU GPL v3) as two
completely different beasts.
As long as the compilation qualifies as an "aggregate", its resulting
copyright (if any) cannot be used to do harm.
Hence, I would say there's not much *effective* difference between the
cases where this copyright exists (but is not used to do harm) and the
cases where this copyright does not exist at all (and thus cannot in
any way be used to do harm)...

Re: NC Proposal No. 12: clarifying noncommercial

Anthony — 2012-05-18T20:59:23

That'll only really affect library users who don't have decent e-book
reading devices, or who have some sort of aversion to them.
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Re: NC Proposal No. 12: clarifying noncommercial

Anthony — 2012-05-18T19:26:23

What do you mean yes?  A public performance is not a sale, barter, or
letting.  It may be a use in a paid for advertisement, but there are a
lot of other commercial uses.

On the other hand, you obviously don't want to ban all public performances.


I don't understand.  What is the definition going to be, such that it
allows noncommercial public performances, but disallows commercial
public performances?


If there is one.  There aren't statutory licenses for all types of
public performances.

I would think Commercial Rights Reserved means, to the full extent
allowed by law, commercial rights are, reserved.  If you want to make
a public performance for commercial purposes, and there is not
statutory license available, then you have to negotiate with the
copyright owner directly.

Are you suggesting that all public performances of NC works, except
for use in a paid for advertisement, should be allowed?  Might as well
drop the NC if you're going to do that.
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Re: NC Proposal No. 12: clarifying noncommercial

jonathon — 2012-05-18T18:37:40

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On 16/05/12 20:26, Heather Morrison wrote:


That depends upon the specific jurisdiction. In general, "letting"
 equates to "compensation for the use or possession of property, for a
period of time". However, "lend" also comes into play here, and it
usually equates to "parting with a thing of value for either a fixed, or
indefinite period. Such item, or something equivalent must be returned
when originally established, or lawfully requested".


Is a library fine "lending without monetary compensation"?
How about a library that charges a membership fee?
How about a library that requires a deposit to check out material?

For the edge case that probably nobody has heard about, but will affect
all library users in the US:
* For budgetary reasons, it is cheaper, in the short term, for libraries
to rent out books, rather than buy them outright. As such, budget
policies are tilted against purchasing content to lend. Can the
organization that rents content to libraries, include NC licensed
material in their offerings?

jonathon

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Re: NC Proposal No. 12: clarifying noncommercial

Andrew Rens — 2012-05-18T16:44:11


As it stands right now yes.

But the since public performance is defined in most copyright legislation
around the world it would be easy to include. The definition would remain
clear and certain.

The only question is whether this is desirable and that leads to the debate
about how CC licences relate to collecting societies which collect
royalties for public performances.

If the Commercial Rights Reserved did not permit public performance then
public performance would have to take place in terms of a collecting
society license or the equivalent take and pay rule under legislation.

What is important IMO is that that is a right the limits of which can be
easily ascertained.

Re: NC Proposal No. 12: clarifying noncommercial

Anthony — 2012-05-18T16:27:42

What about public performances?  Movie theater performances, concert
performances, use as background music in a restaurant?  Are commercial
public performances allowed under this definition of commercial?
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Re: NC Proposal No. 12: clarifying noncommercial

Heather Morrison — 2012-05-16T20:26:59

Would the same purposes be achieved by defining commercial as sale, barter, letting and use in a paid for advertisement? Would any of the educational uses that you want to permit be prevented by defining non commercial in this legally certain way?

Comments / questions:

1.Readers note that Andrew is referring to my proposed definition of noncommercial (#12 on the wiki here http://wiki.creativecommons.org/4.0/NonCommercial)

2.Does letting mean letting for monetary compensation from a legal perspective? Lending without monetary compensation should not be prohibited, IMHO.

3."Use in a paid for advertisement" does not cover some uses that should be prohibited, e.g. mirroring a blog for the purpose of deriving ad revenue.

4.In view of recent discussions on this list, I am wondering whether agreement that the current definition of noncommercial works just fine. The purpose of my proposed new definition of noncommercial is to remedy what others have brought up as a problem with the current license (overly broad definition of noncommercial). It seems that at least some people are now thinking that the existing definition of NC isn't so bad after all. Maybe we should just keep it?

The full message follows. Apologies for omitting responses to particulars, I find it difficult to follow this discussion in this format, i.e. I am not sure which are the latest comments and whether they are reactions to what I have said or what others have said.

best,

Heather Morrison

On 2012-05-16, at 12:53 PM, Andrew Rens wrote:

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Re: NC Proposal No. 12: clarifying noncommercial

Andrew Rens — 2012-05-16T19:53:51

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Re: NC Proposal No. 12: clarifying noncommercial

headphonica free music netlabel — 2012-05-15T13:28:37

to be precise, MITE sees "institutional uses" as commercial uses, NOT
"educational uses" in general.
they specify institutional use as being commercial:
"Institutional use is deemed to be commercial use when the materials are
downloaded en masse, stored on institutional servers, or otherwise
incorporated into institutional resources (including learning-management
or student-information systems) or distributed directly via institutional
channels."

And further on they say:

"In keeping with this interpretation, MITE encourages all individual
(e.g., students, teachers, general public) use of the materials on
HippoCampus, subject to the terms of this Creative Commons deed. MITE
offers licenses for use of its materials (such as those seen on
HippoCampus) by institutions."

Which does in fact not mean preventing schools from using the material,
but encouraging them to download the materials from their site
(HippoCampus) while offering other licenses for other uses.


Martin
c/o headphonica



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Re: Will CC 4.0 Make NC Clause Problems Worse?

Patrick Peiffer — 2012-05-15T07:30:58

Hi Jonathon,

As a CC Lead from Luxembourg I have a similar perspective as Paul on this.

If an entity wants to use CC licences but reserve exclusive commercial
rights, this is exactly what NC offers and it works as expected. This
effect is not to be given up lightly, although it may represent the "dark
side" of open licensing to some. Whatever one thinks it is, the yardstick
to go by is its effectiveness, simplicity and clarity in reserving
exclusive commercial rights. The current NC provision achieves just that.
Any extra permissions grafted onto NC must be measured against this initial
goal.

The fact that it is NC licences who might end up in court is by no means an
argument against NC, it merely shows that NC is solid enough to be used for
going to court and AFAIK, has been upheld.

Best regards,
Patrick Peiffer
CC Luxembourg




On Tue, May 15, 2012 at 2:24 AM, jonathon <jonathon.blake-Re5JQEeQqe8AvxtiuMwx3w< at >public.gmane.org> wrote:

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Re: Will CC 4.0 Make NC Clause Problems Worse?

Paul Keller — 2012-05-15T07:05:16

On 15 May 2012, at 02:24, jonathon wrote:

and that is the core of my argument: it is a good thing that the NC provision is so flexible. Otherwise we would need 2 NC license for each of the fields of endeavor that we can identify.

i do not think that there have been a dozen of cases and the one that i am aware of were indeed about the NC provision where the licensors claimed that the provision had been violated and the courts sided with their claim. (this refers to the curry case linked to in my initial mail)

that is how the licenses are supposed to work. a user looks at the condition and makes a decision if she want's to comply with those conditions or not. this is not a conflict between licensor and licensee

the key word here is 'specific concerns'. we now have something that works for millions of users. If we start addressing specific concerns in what is supposed to be a generic tool we ill break that generic tool.

again, the beauty of the current definition is that it accommodates these three use cases and many more without requiring a specific license for each of them. in the end people are free to create forks if they require something special. it is something that we should not encourage, but also not something we should encourage. /paul

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Re: Will CC 4.0 Make NC Clause Problems Worse?

jonathon — 2012-05-15T00:24:59

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On 13/05/12 08:45, Paul Keller wrote:


Is it acceptable to those users because of the rights it protects, or
because of the rights they think it protects?

In some fields of endeavour, the gap between those two groups of rights
is so wide, one would be forgiven for thinking that people were
referring to two different licenses.


AFAIK, all of the dozen odd court cases relating specifically to
infringement issues, have involved an NC license. (I don't have a list
of those cases, the sticking point that led to going to court, and the
outcome.)

licensed material but that is simply not the case.

a) The survey done by Creative Commons would suggest that the absence of
such conflict is due to potential users deciding that their usage would
be a license violation.

b i) Of the twenty or so forks of the various CC licenses I have seen,
only one of them has not been a fork of the NC license. To me, this
implies that potential NC license users are engaging in license
proliferation, precisely because the NC license does not address their
specific concerns.

b ii) That NC license proliferation basically boils down to three use cases:
* Distribution must be gratis to the recipient;
* Individuals, and non-profits may use the content. It is off limits for
everybody else;
* Content can be used for educational purposes. All other usage is off
limits;

Each of the NC forks I've read has created two or three issues,in an
attempt to nail down the NC part of the license.

jonathon


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Re: questions about attribution

Andrew Rens — 2012-05-14T21:05:47

Comments in text

On 11 May 2012 18:32, Sarah Pearson <sarah-DXT9u3ndKiT7y3wIJjeDKkB+6BGkLq7r< at >public.gmane.org> wrote:

Both would benefit from the availability of standard ways of attributing.

One way to do that and to enable efficient attribution would be to allow a
licensor to specify that the attribution should follow a publicly available
attribution standard, either in addition to the listed details or in place
of the listed details. This would enable communities to create attribution
standards. These standards could require either fewer or more details
depending on the requirements of the community, and provided that those are
attribution requirements. No licensor would be bound to adopt such a
standard but could do so.

Example; Andrew photographs a bear and requires attribution according to
the Free Wildlife Artists rules that require only a link to Free Wildlife
Artists listing for the photograph and the licensing URI. The listing on
the Free Wildlife Artists website contains the other information and other
information of interest to wildlife artists such as the location of the
bear.

Encouraging the creation of community attribution standards, enabling their
use by licensors would go a long way to easing the stacking problem.

It would make more sense to experiment with these in community attribution
standards.

Where this is non standard it increases transaction costs for licensees but
if there were community attribution standards those transaction costs could
be reduced by automation, widgets that enable a licensee to attribution
easily.

In the above example a community standard such as the Free Wildlife Artists
could require some more information be passed on e.g. the scientific name
of the species photographed.

This would not be suffecient for many of the licensors whom I have advised,
including a number of OER projects.

If experimentation with various standards is desirable then enabling
licensors to require a publicly available community attribution standard
with a default will enable the greatest range of experimentation. The
licensor can then decide what is most appropriate but in a way that enables
efficiencies, different communities would figure out what works best for
different media. That would be a true punt to culture.

Re: Aggregation and Stronger SA

drew Roberts — 2012-05-14T17:57:58

I know what you say but I don't think the language of the license supports 
that view.

See my thought elsewhere that perhaps the distinction that should be used is 
whether the order of the works could be changed without making it a different 
work?

It does not matter if the order of files changes on a CD. It may very well 
matter a whole lot if the order of photographs changes in a book.

And I do.

I don't want to go there for true mere aggregation. I would not mind going 
there (unless someone can point out actual real world issues) for copyrighted 
aggregates. Let the copyright aggregate makers lobby lawmakers for a change 
in the law to make such aggregates not subject to copyright. Perhaps there 
will finally be some big boy pressure to reduce the scope of copyright for 
once. As it is now, the ratchet is working all the time.

Well then let them do it. One Free book and one Non-Free book. (Make sure you 
can buy one at a time though?)

all the best,

drew
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Re: Aggregation and Stronger SA

drew Roberts — 2012-05-14T18:03:39

We have to get a lawyer to answer that one for us don't we.


Lawyers?

Is this a good test? Would this be a suitable compromise for this problem?

And here we have a big difference between a CD as a distribution medium where 
the included parts can be used separately and a bound book.

One does not generally use the programs on the CD but loads them from there to 
a hard disk. (I do know about live CDs.)


all the best,

drew
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Re: Aggregation and Stronger SA

Francesco Poli — 2012-05-13T22:12:41

[...]

As I said, I think the GPLv3 text implicitly assumes that, when no
copyright results from the compilation, then the compilation
automatically satisfies the part of the "aggregate" definition that
talks about the resulting copyright.

[...]
[...]

Do you also consider unacceptable putting the Linux kernel on the same
CD as some non-free drivers (think about nVidia proprietary video
drivers, for instance)?
This is done by some (many?) GNU/Linux distributions.

I don't see a significant difference between this case and your coffee
table book example.

If you consider aggregating non-free works with copylefted free works
as unacceptable, well, let's stop running in circles, and let's agree
to disagree on this topic...

[...] 
[...]

I don't see this as a whole different thing.
If the two books are actually two volumes of the same book (say, part I
and part II) they could be considered as one book, but also as two
books.

Re: Aggregation and Stronger SA

Francesco Poli — 2012-05-13T22:14:17

[...]
[...]

Is the order of photos in a coffee table book really always so
significant?
Would it become a different work, if the order were rearranged?

Also, does talking about the "order" of files in a CD-ROM make sense?
The order of bits does not matter much, from the user's point of view,
since it is masked by the file-system, which is however visible to the
user as a tree-like data structure, which, in its turn, does not have a
unique visiting order...

Re: Disclaimers for works of opinion as an incentiveto free licensing

Ben Finney — 2012-05-12T22:53:34


[…]


That's my point, though: the clause doesn't seem to make those actions a
violation of the clause. It merely says “the author shall have the right
to object”.

Is there no distinction there? This seems quite meaningfully different
from saying “the recipient may not make modifications which would be
prejudicial” or the like? It's that latter phrasing that would make
those actions a violation of copyright, as I read it.

So it seems to my reading that the clause you quote does not enjoin the
recipient of a work in any way. But I speak from a position of ignorance
about these “moral rights” in copyright law.

Re: Will CC 4.0 Make NC Clause Problems Worse?

Paul Keller — 2012-05-13T08:45:46

hi all, 
i would like to contribute another perspective to this (and the other NC related) discussion(s) which i have been following on this list but also as being Public Lead for CC Netherlands since 2005 where the question of how to define NC uses is one of the most frequently encountered ones. Over the years these questions and the discussions on this and other list have actually brought me to the conclusion that the current definition of NC use in the licenses it the best possible definition that we can have and as a result it should not be changed or modified at all (never fix a running system as they say).

I am saying this from the perspective of someone reprseneting CC (Netherlands) and not from the perspective of a user. This is an important distinction because almost all the arguments on this list and elsewhere involve users who argue to make their specific interpretation the default one. What does seem to make sense from a number of specific perspectives would be a very dangerous and foolish move from the perspective of the overall system. It will make some specific groups of users more comfortable but it will certainly alienate others. The one thing that we know for sure (from the NC study from a couple of years back) is that there is no agreement among users of the CC licenses as to what constitutes commercial use of a licensed work.

The beauty of the current definition of non-commercial is that it is acceptable for a very large number of users. It is sufficiently vague to accommodate users with diverging views on what constitutes non-commercial use (as illustrated by David and many others on the lists) while functioning reasonably well. Yes, it creates a lot of questions by first time users (which in my experience is a good thing since that gets them into discussions about what they want to achieve and quite frequently lets them arrive at the conclusion that they should not use NC) and yes, it creates a lot of discussion on this list (which let's face it is not a good representation of the users base). 

On the other hand the current NC provision has not created any major problems in the wild. Given the intensity of the discussions here one would expect that there are frequent conflicts between licensors and licensees of NC licensed material but that is simply not the case. Yes, there may be some who decide against licensing something under NC because they do not like the definition, and there are some who refrain from using NC material because they believe that the definition insufficiently covers the intended use, but this will always be the case. Changing the NC definition carries the risk that we will alienate substantial existing user groups which is something that we should absolutely avoid. It is also worth noting that where there have been actual conflicts (like in the Adam Curry c
 ase the NC provision has worked as intended (see: http://creativecommons.org/weblog/entry/5823)

Given this i have come to the conclusion that the definition of commercial use as it exists today is remarkably robust and probably very close to the best possible definition (and as such the original drafters of the licenses must be complimented with their wise choice of language). Given this i think that the best thing that we can do is to leave the current wording intact. Given that it has been around for 10 years and has not created any real world problems we should conclude that the definition is not broken and that there is no need to fix it (or even tinker with it). 

Or to answer Davids question. we can be pretty sure that 4.0 will not make NC clause problems worse as long as we do not change the definition (and yes we should also keep language similar in function to the current Section 8 Subsection e) /paul 
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