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Re: Creative Commons 3.0 Public draft -- news and questions

On Sat, 12 Aug 2006 23:05:56 +0200 Francesco Poli wrote:

> On Thu, 10 Aug 2006 11:26:13 -0400 Evan Prodromou wrote:
> > So, I have big news and a big question.
> > 
> > Big news
> > --------
> > 
> > Creative Commons has announced the public draft of the next version
> > of their license suite:
> > 
> > http://creativecommons.org/weblog/entry/6017
> [...]
> > http://evan.prodromou.name/Debian_Creative_Commons_Workgroup_report
> Thanks for the URLs.
> I will look at the license as soon as I can...

OK, here we go!
I managed to find the time to analyze a license draft.

The weblog entry cited above refers to a mailing list announcement that
include some documents as attachments:
 * BY-NC-SA v 3 (080806) (US).pdf
 * BY-NC-SA v3 (0808060) (generic).pdf
 * 2ndmarkupDRMclause#2.pdf

They are described as

] drafts of the US v 3.0 license, the new "generic" v 3.0  
] license and the parallel distribution language.

In the following I comment on the draft whose filename is
`BY-NC-SA v3 (0808060) (generic).pdf'.
The usual disclaimers: IANAL, IANADD.
Please note that the anti-DRM clause is (will be?) discussed elsewhere
in this thread, hence I won't comment any further on it.

The title of this draft is
|                           Creative Commons
|             Attribution-NonCommercial-ShareAlike 3.0

Clause 1(l) states:

|    l. "License Elements" means the following high-level license
|       attributes as selected by Licensor and indicated in the title
|       of this License: Attribution, Noncommercial, ShareAlike.

If I understand correctly, CC decided to drop the Noderivs license
This is good news, if confirmed: one blatantly non-free option is gone!
Unfortunately, the Noncommercial license element is still there...

What is unclear to me is: which license am I analyzing?  It seems to be
by-nc-sa (v3draft).  Why isn't there any highlighting for the clauses
that vanish in by-sa, by, and by-nc?
I think that clarity in this respect would be very important, since
there's no way that works under CC-by-nc-sa can comply with the DFSG!

Clause 4(a) states, in part:

|       If You create a Collection, upon notice from any Licensor You
|       must, to the extent practicable, remove from the Collection
|       any credit as required by clause 4(d), as requested. If You
|       create an Adaptation, upon notice from any Licensor You must,
|       to the extent practicable, remove from the Adaptation any
|       credit as required by clause 4(d), as requested.

This still concerns me...
I have previously discussed the issue on debian-legal, but I'm not yet
convinced that this clause passes the DFSG.
The last discussion on this topic that I recall starts more or less with

What I do not understand basically boils down to:

  How can a license (allow a licensor to) forbid an accurate credit
  and meet the DFSG at the same time?

I think that stating "This Adaptation is based on the Work _foo_ by
James O. Hacker" is an accurate credit, as long as it's true.
Allowing James O. Hacker to force me to purge such a credit seems to
fail DFSG#3.

A more concrete example could be the one found in
with some slight adaptations: an author who made a novel available under
an Attribution 3.0 license could give notice to disallow an annotated
version that accurately credits him/her as the author of the original
novel.  That is to say: I can publish an annotated version of the novel,
but I could be forbidden to acknowledge the (true and correct)
authorship of the novel itself!
I cannot understand how this could be seen as DFSG-free...

Clause 4(b) states, in part:

|    b. You may Distribute or Publicly Perform an Adaptation only under
|       the terms of this License, a later version of this License with
|       the same License Elements as this License, or a Creative
|       Commons license for another jurisdiction that contains the
|       same License Elements as this License (e.g.,
|       Attribution-NonCommercial-ShareAlike 2.1 Japan).

It's worth noting that CC licenses have a mandatory version-upgrade
mechanism and also a mandatory jurisdiction-change mechanism.
This can weaken the copyleft of ShareAlike licenses, and possibly
trigger weird clauses such as "sue me in Scotland" (found in
CC-by-2.5/scotland, for instance).  Authors, you have been warned!

Clause 4(c) states, in part:

|    c. You may not exercise any of the rights granted to You in
|       Section 3 above in any manner that is primarily intended
|       for or directed toward commercial advantage or private
|       monetary compensation.

This clause fails DFSG#1 and DFSG#6, as it does in CC-v2.0 licenses (see
I hope that clause 4(c) is entirely absent from CC-by and CC-by-sa, but
unfortunately there's no clear indication in this draft.

Clause 4(d) states, in part:

|       in the case of a Adaptation or Collection, at a minimum such
|       credit will appear, if a credit for all contributing authors
|       of the Adaptation or Collection appears, then as part of these
|       credits and in a manner at least as prominent as the credits
|       for the other contributing authors.

Wait, wait.
Credit must be "at least as prominent as the credits for the other
contributing authors".  Even if the licensor's contribution is not
comparable to others?
I mean: I incorporate a short poem by Jack F. Poet into a novel that
includes 21 chapters written by Alice E. Writer and 25 chapters written
by me: the credit for Jack F. Poet must be at least as prominent as the
credits for the other authors?!?

If this is the case, it seems that one of the known issues with the
CC-v2.0 "any other comparable authorship credit" language (see
http://people.debian.org/~evan/ccsummary.html) is still present in this
CC-v3 draft!

To quote Evan again:

)  Requiring inaccurate or excessive authorship credits is an
)  unreasonable restriction on distribution (DFSG 1) and making
)  modified versions (DFSG 3).

Clause 4(e) states:

|    e. For the avoidance of doubt, if You exercise the rights granted
|       under this License for a purpose or use which is otherwise
|       than noncommercial as permitted under clause 4(c), the
|       Licensor reserves the exclusive right to collect whether
|       individually or through a collecting society or other
|       authorized person, whether under a voluntary or statutory
|       licensing scheme, royalties in respect of such exercise.

This shares with clause 4(c) the same DFSG incompatibilities.
I hope that clause 4(e) as well is entirely absent from CC-by and
CC-by-sa, but, again, there's no clear indication in this draft.

The following are typos, or at least they seem to be:

---> in clause 4(d) there seems to be no closing parenthesis after
     "Attribution Parties"

|       for attribution ("Attribution Parties" in Licensor's copyright
|       notice, terms of service or by other reasonable means, the
|       name of such party or parties;

---> in clause 5 there seems to be some confusion (shouldn't it be
     "OR ABSENCE"?)


---> in Creative Commons Notice there seems to be a repeated sentence

|  For the avoidance of doubt, this trademark restriction does not
|  form part of this License. For the avoidance of doubt, this
|  trademark restriction does not form part of the License.

But it is also tradition that times *must* and always
do change, my friend.   -- from _Coming to America_
..................................................... Francesco Poli .
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