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Re: Draft summary of Creative Commons 2.0 licenses (version 3)

I apologize to be jumping in this at such a late stage. :)

<quote who="Evan Prodromou" date="2005-03-18 14:28:24 -0500">
> Hi, everyone. At long last, I've made some final revisions to the draft
> summary of the Creative Commons 2.0 licenses. The main changes have
> been:
>       * Additional phrasing changes due to MJ Ray 
>       * Additional phrasing changes due to Francesco Poli 
>       * Clear textual recommendations for Creative Commons 
>       * Recommendations for trademark restrictions

Evan thanks so much for the summary. The additions in the last round
are all steps in the right direction IMHO and I think that the work
done here is fantastic.

Who is organizing discussions with the CC folks? I've actually gone
over an earlier draft of this text with a representative of CC and
have been having conversations on and off about potential fixes to the
licenses. I'd love to have some part in the discussions.

That said, having spent a lot of time on this in the GFDL negotiations,
I think I can offer some some advice for the recommendations part of
this that will help in discussion this with Creative Commons folks. To
prefix things, I think that in most places, this license does all of
these things -- better than any other one I've seen from legal yet. I
also think there is a little room for improvement.

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;

Also, we should distinguish between the types of solutions we want to

   - Fixes that can be made by clarifying their position;

   - Fixes that can be made by changing or removing text;

There are two areas where I think the write-up is a little more
harsh/extreme than it should be (this is a critique that has been
passed to me through SPI's lawyer and others who have looked at an
earlier draft). In this situation and in general, I think legal needs
to give a little more credit to reasonable expectations and expressed
intent of licensors and license authors. Both are important concepts
in private ordering and contract law and that this write-up seems to
ignore or dismiss these at certain points in a way that I think might
make conversations and negotiations more difficult.

In particular:

> Section 4a says, in part,
>       You may not distribute, publicly display, publicly perform,
> 	or publicly digitally perform the Work with any
> 	technological measures that control access or use of the
> 	Work in a manner inconsistent with the terms of this License
> 	Agreement.
> 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. It's
clear (and explicit through many other channels and context and
through public statements made by the licenses authors) what this is
trying to do (block DRM) and what it is not trying to do (block
private distribution). There is clear intent and reasonable
expectations that we're ignoring here. As such, I'm not convinced this
needs to be a freedom issue.

I still think this can and should be fixed but claiming that they are
clearly blocking private distribution is not necessary the right way
to pitch this.

In terms of suggesting a textual fix, how about:

 You may not distribute, publicly display, publicly perform, or
 publicly digitally perform the Work with any technological measures
 that control access or use of the Work by those to whom they are
 distributed, displayed, or performed in a manner inconsistent with
 the terms of this License Agreement.

Would this clarify things?

I'm also a little worried about the critique of the trademark

> Note that the HTML source code for the Web page includes a comment
> that the trademark restrictions are "NOT A PART OF THE LICENSE". In
> a graphical Web browser, the text for the trademark restrictions are
> visually distinct from the license text. Creative Commons
> representatives have stated that the trademark restrictions are not
> part of the license. Finally, the same block of text states,
> "Creative Commons is not a party to this License, [...]".
> However, debian-legal feels that the visual distinctions are not
> sufficiently clear to indicate that the trademark restrictions are
> not part of the license, and some instances of the license found in
> the wild include the trademark restrictions. The relation of the
> trademark restrictions to the license proper is sufficiently
> ambiguous to make it difficult for licensees to comply.

Is ALLCAPS "NOT A PART OF THE LICENSE", 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
this is something they can do better but I don't think this is a
serious infringement on freedom. It is, of course, something that
could be done better.


Benjamin Mako Hill

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