<quote who="evan@debian.org" date="2005-03-27 13:37:20 -0500">
> On Sat, Mar 26, 2005 at 05:27:57PM -0500, Benj. Mako Hill wrote:
>
> > In general we should distinguish the types of problems we have with
> > the license and separate them into a few categories:
> >
> > - Real limitations on freedom that seem to by by design;
> > - Wording that says something other than what they mean and creates
> > a serious limitation on freedom;
> > - Wording that is less than ideal and potentially confusing;
>
> I'm not sure that's necessary. I think we only bother with the first
> two types of problems.
>
> Problems that are built in to the purpose of the license we pretty
> much dismiss out of hand (i.e., the NonCommercial and NoDerivatives
> license elements). I don't think there's a reason to consider these
> very closely or to make recommendations ("Please change your
> NonCommercial license element to allow commercial use").
In the CC licenses, this is basically correct but CC is a collection
of licenses with different levels of freedom and its AFAIK unique in
this way.
In the GFDL discussion, this was/is an important type of distinction
that wasn't really part of the way the position statement was
structured. In that case, we did want to convince the authors to
change and I think that making a case for a free license even when it
is designed to be non-free can make sense in many other cases as well.
> That all said, if you'd like to label the problems in the summary with
> some kind of ranking (1, 2, 3) or something, I can add text that
> passes along these distinctions.
I'm not sure about the format format but I think we can do something
like this.
> As a start, I think all of the problems with the Attribution license
> are of the second sort, and the problems with the NonCommercial and
> NoDerivatives licenses are of the first sort.
I agree.
> > Also, we should distinguish between the types of solutions we want to
> > suggest:
> >
> > - Fixes that can be made by clarifying their position;
> > - Fixes that can be made by changing or removing text;
>
> Again, given that CC is not a party to the license, I'm not sure what
> clarifying their position will accomplish. If _we_ can be confused
> about parts of the license, licensors and licensees will be, too.
In fairness, folks on -legal are going out of their way to find ways
to be confused. That's part of the process here. In many senses, this
is a useful excercise but in other cases we can cross the line of what
a judge would think is a reasonable interpretation.
> The absolutely best way to clarify a position is to clarify the
> text. I think any out-of-band clarification is a veeeerry distant
> second.
Of course. But it's sometimes a reality we need to deal
with. Approaching license authors with the possibility of
extra-textual clarification can raise the possibility of successful
license fixing and be more effective than many folks give credit for.
> > > It's not clear which if any "technological measures" would be
> > > consistent with the terms of the license. Because of this
> > > vagueness, we have to take a worst-case view and consider that
> > > there are *no* such measures that are allowed.
> >
> > I believe that CC will dismissive of this critique -- at least as
> > long as it's leveled in this fashion. The wording is clumsy but if
> > CC wanted to block private distribution, they would have said
> > that.
>
> I really have a hard time with this one. I think assuming that DRM
> is inconsistent, but encryption, firewalls, and VPNs are not, is
> incredibly sloppy thinking.
Why is it so inconsistent when that is the obvious and expressed
intent of the passage? Do you really think that a licensor could
sanely and *convincingly* argue that the text meant that they could
block private distribution? Has anyone other than people -legal
suggested that this is how they are interpreting the license?
Again, I think this clumsy, not maybe not non-free.
> I agree 100% with Lewis Jardine on this one. Well said, Lewis!
I'm still formulating my thoughts on this. :)
Would a more desirable fix be my suggestion with an "or must include a
transparent/editable/redistributable/unencumbered copy?"
> > Is ALLCAPS "NOT A PART OF THE LICENSE",
>
> ...in an HTML comment...
Only because it's graphically separated, by color and inside a box,
when the HTML is rendered. The HTML comment is trying to make explicit
in the source what is already explicit in the rendered document.
> > plus statements from the authors, plus a graphical distinction and
> > a explicit statement that CC is not party to the license in the
> > same block of text *really* "sufficiently ambiguous" enough to
> > make this a freedom issue?
>
> I think the overreaching language is the main freedom issue. The
> response from CC when it's been pointed out has been, "But that
> section is not a part of the license. The license users aren't bound
> by it."
They think it's obvious visually, in the HTML source, and from
comments that they've made to clarify it and doesn't need to be
fixed. I agree that's it's more ambiguous than it should be but I also
thank that they've things clear enough that it's not a freedom issue.
I mean, they've said this in so many words (including in the text of
the page) and quite honestly, their argument is really the only one
that matters as licensors are not able to speak for Creative Commons
about their trademark.
> Now, agreed, stuff that's not part of the license shouldn't matter.
> But it's really, really difficult to tell that the overreaching
> language in the trademark restrictions is ignorable. I mean, it's
> RIGHT THERE, on the same page as the license text. Please, take a
> moment to look at it in a graphical Web browser:
>
> http://creativecommons.org/licenses/by/2.0/legalcode
I've seen it. I looked at it before I wrote my first message. It's in
a separated, bounded, and different colored box and its in a different
tone and outside of the organizational structure of license.
I agree with all of your critique. It would certainly be better and we
should certainly ask CC for this -- especially since it's clarifies
something that is already their expressed opinion. It would be nice if
that comment was visualized but I don't think it's a more a wishlist
item than a freedom issue.
> w/r/t the text of the summary: I think in my effort to preempt the
> canned response, I put too much emphasis on the niggling details. I'll
> try to correct that.
I'm willing to help you hack on this.
I haven't talked to Greg Pomerantz (SPI's lawyer) yet (he's on
vacation) but I'd like to bring him in and probably onto the group
that talks to Lessig. He's read and posted to -legal in the past and
knows how things work but due to time and rules about dispensing legal
advice and such, I think asking him to participate in this forum may
too much.
I'm not sure what sort of role he could/can plan in this license
critique and in others in the future but when he returns from vacation
in a week or so, I think we could gain a lot but asking him to
injecting a little bit of proper legal opinion into some of these
official statements. :)
Regards,
Mako
--
Benjamin Mako Hill
mako@debian.org
http://mako.yukidoke.org/
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