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Comments on the second public CC draft



Hi all!

In a recent message[1] to the cc-licenses list, a new draft of CC-v3.0
licenses was announced.  The message included some documents as
attachments:
 * BY-NC-SA v 3 (102506) (US).pdf
 * BY-NC-SA v3 (102506) (unported).pdf

[1] http://lists.ibiblio.org/pipermail/cc-licenses/2006-October/004459.html

In the following I comment on the draft whose filename is
`BY-NC-SA v3 (102506) (unported).pdf'.
Please note that the anti-TPM clause has already been discussed a lot,
hence I won't comment any further on it.

Please also note that I cannot cross-post this message to cc-licenses,
since that mailing list is not open to non-subscribers and handling a
cross-post between open and closed lists would result in a real mess...
:-(


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

I am analyzing CC by-nc-sa v3draft license: why isn't there any
highlighting for the clauses that vanish in the other v3draft licenses? 
I am especially interested in by-sa and by, since they are the only two
that have some hope to meet the DFSG...
I think that clarity in this respect would be very important.


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 concerns me...
I have previously discussed the issue on debian-legal, but I'm not yet
convinced that this clause meets the DFSG.
The most in-depth (and long) discussion on this topic that I recall
starts more or less with
http://lists.debian.org/debian-legal/2006/03/msg00092.html

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
significantly restrict my ability of modifying the work (see DFSG#3).

Hypothetical example: Walter Writer writes the novel _Good Title_, under
CC-by-v3 and Nazi Ned creates an annotated version, titled _Good Title,
from a neo-nazi Perspective_.
Assume that Nazi Ned states

  by Nazi Ned and Walter Writer

Walter requests to be removed from authorship credits.  Fairly enough. 
Ned removes his name.
I don't think that the above credit would be accurate, so no problem
here.

What if Ned stated the following?

  by Nazi Ned,
  based on Walter Writer's _Good Title_

Is that acceptable?
Or can Walter request (under clause 4(a)) that his name be removed from
the "based on ..." statement?


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 (either this or a
|       later license version) that contains the same License Elements
|       as this License (e.g., Attribution-NonCommercial-ShareAlike 3.0
|       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 forbids selling the Work (fails DFSG#1) and discriminates
against a field of endeavor (fails DFSG#6).
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.

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 think that this restriction is excessive and fails to meet the DFSG.

I mean: Walter Writer incorporates a short poem by Paul Poet into a
novel that includes 21 chapters written by Cindy Coauthor and 25
chapters written by Walter himself.  Walter wants to put a "credit for
all contributing authors" and lists his name (that is, Walter Writer)
and Cindy Coauthor in 12 pt fonts, followed by credit for Paul Poet in
11 pt fonts.
It seems reasonable to me, but, nonetheless, credit for Paul would not
be "at least as prominent as the credits for the other authors": that is
to say, the license wouldn't allow Walter to do so.

If it said "at least as prominent as the credits for the authors of
other comparable contributions", it would be OK, but the actual clause
doesn't say this, unfortunately.


Clause 4(e) states, in part:

|  (ii) In those jurisdictions in which the right to collect royalties
|       through any statutory or compulsory licensing scheme can be
|       waived, the Licensor reserves the exclusive right to collect
|       such royalties for any exercise by You of the rights granted
|       under this License if Your exercise of such rights is for a
|       purpose or use which is otherwise than noncommercial as
|       permitted under clause 4(c); and,
|
| (iii) In the event that the Licensor is a member of a collecting
|       society that administers voluntary licensing schemes, the
|       Licensor reserves the right to collect royalties from any
|       exercise by You of the rights granted under this License is
|       for a purpose or use which is otherwise than noncommercial as
|       permitted under clause 4(c).

This shares with clause 4(c) the same DFSG incompatibilities.
I hope that clause 4(e)(ii) and 4(e)(iii) are 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 the foreword (before clause 1) there's an occurrence of
     "LIICENSE", which should instead be "LICENSE"

|       TO THE EXTENT THIS LIICENSE MAY BE CONSIDERED TO BE A
|       CONTRACT,         ^^^^^^^^^^

---> in clause 4(b) there seems to be an extraneous "of" (legacy of
     previous phrasings)

|       You may not offer or impose any terms on the Adaptation that
|       restrict the terms of this License or the ability of the
|       recipient of the Adaptation to exercise of the rights granted
|       under the License.                     ^^^^

     s/to exercise of the rights/to exercise the rights/

---> in clause 4(b) there's some over-copy-and-paste from clause 4(a),
     I think

|       When You Distribute or Publicly Perform the Work, You may not
                                                   ^^^^^^
|       impose any effective technological measures on the Adaptation
|       that restrict the ability of a recipient of the Adaptation
|       from You to exercise their rights granted under the License.

     s/Perform the Work/Perform the Adaptation/

---> in clause 4(d) there's a little typo

|       in the case of a Adaptation or Collection,
                      ^^^

     s/a Adaptation/an Adaptation/

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

|    OR THE PRESENCE OF ABSENCE OF ERRORS
                    ^^^^

---> 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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