On Mon, 5 Mar 2007 22:58:15 +0100 Francesco Poli wrote: [...] > I hope I can followup with my comments soon, assuming I manage to find > the necessary time... :-( OK, I found the time to review the license (at last!). My comments follow. > Creative Commons Legal Code > > Attribution-ShareAlike 3.0 Unported This is the unported version of CC-by-sa v3.0 license, one of the two CC-v3.0 licenses that have some hope to meet the DFSG, the other one being CC-by. [...] > c. "Creative Commons Compatible License" means a license that is > listed at http://creativecommons.org/compatiblelicenses that has > been approved by Creative Commons as being essentially equivalent > to this License, including, at a minimum, because that license: > (i) contains terms that have the same purpose, meaning and effect > as the License Elements of this License; and, (ii) explicitly > permits the relicensing of adaptations of works made available > under that license under this License or a Creative Commons > jurisdiction license with the same License Elements as this > License. It's worth noting that this list of "Compatible Licenses" can change in time, even after an author has licensed his/her work under the CC-by-sa license. This mechanism may effectively modify the permissions granted by that author *after* he/she licensed his/her work, independently of his/her will: Creative Commons can decide that some other license L is "equivalent" to CC-by-sa and thus allow the distribution[1] of Adaptations of CC-by-sa licensed works under the terms of L, even if the author of the original CC-by-sa licensed work does not like license L. Maybe the original author does not agree with Creative Commons that license L is "equivalent" to CC-by-sa, but there's nothing he/she can do to stop the relicensing of Adaptations of his/her CC-by-sa licensed works. This mechanism greatly weakens the copyleft of the CC-by-sa (assuming that CC-by-sa is intended to be a copyleft license...). Personally, I consider this flaw alone as enough to make me avoid licensing my works under this license: when I decide that I want a copyleft license, I don't want that adaptations can be relicensed under yet unknown terms. [1] see the relevant clause later on [...] > e. For the avoidance of doubt: > > i. Non-waivable Compulsory License Schemes. In those > jurisdictions in which the right to collect royalties through > any statutory or compulsory licensing scheme cannot be > waived, the Licensor reserves the exclusive right to collect > such royalties for any exercise by You of the rights granted > under this License; Mmmmmh, this is worrying, IMHO. DFSG#1 states, in part: "The license may not require a royalty or other fee". Hence I would say that a license where the Licensor reserves the exclusive right to collect royalties does *not* meet DFSG#1. On the other hand, in a jurisdiction in which royalty collection rights cannot be waived, this issue seems to be *unavoidable*... How can that be worked around? Is this clause a legal no-op? But is this a freeness issue anyway? How do we deal with jurisdictions where granting some of the permissions required by the DFSG is *impossible*? [...] > When You Distribute or Publicly Perform the Work, You > may not impose any effective technological measures on the Work > that restrict the ability of a recipient of the Work from You to > exercise the rights granted to that recipient under the terms of > the License. This is the infamous anti-DRM (or anti-TPM, if you prefer) clause, probably the most controversial part of CC-v3.0 licenses (it is also repeated for Adaptations later on). It has been discussed to death on both debian-legal and cc-licenses. The big question is: does the clause allow a licensee to distribute a DRM-encumbered form of the work, as long as he/she also make a clean (unencumbered) form available in parallel? If this parallel distribution scenario is indeed allowed, then I've seen no one objecting to the freeness of the anti-DRM clause: everyone says that the clause meets the DFSG. If instead the clause forbids parallel distribution, many people (including me) think it fails to meet the DFSG. OK, "which is the answer to the big question, then?", you might wonder. Granted, the clause does not *explicitly* allow parallel distribution: the Debian Creative Commons Workgroup has been pushing for such an explicit permission in the anti-DRM clause, but the additional provision was rejected by Creative Commons[2]. Nonetheless, some people have hypothesized that the anti-DRM clause, as it stands, can be interpreted as *implicitly* allowing parallel distribution. This is indeed the big question mentioned above. So, once again, which is the answer? We do *not* know, unfortunately. Even official Creative Commons representatives refused to disclose the intended meaning of this clause[3]. It seems that we have to wait for a court case where someone tries to punish parallel distribution of CC-licensed works, to see some light shed on this issue... :-(( [2] see http://lists.debian.org/debian-legal/2006/08/msg00051.html (and the thread that followed) for further details [3] see http://lists.debian.org/debian-legal/2006/09/msg00155.html and, more recently, http://lists.debian.org/debian-legal/2007/03/msg00041.html [...] > 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 Section 4(c), 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 Section 4(c), as requested. I'm not convinced that this clause meets the DFSG. See my previous comments[4] if you need to read a more detailed analysis. [4] http://lists.ibiblio.org/pipermail/cc-licenses/2006-November/004472.html In summary, I don't think that a license can (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). Why? Because it forbids me to state a true fact in a modified version of the work, namely that the modified version is based on the original work by the original author. Many licenses require that *accurate* credits be kept. This seems to be fine and acceptable (that is to say it's DFSG-free). On the other hand, if a license required *inaccurate* credit, I think it would be considered non-free. If this is the case, how can forbidding *accurate* credit be considered acceptable? Please note that I'm *not* advocating misattribution: stating the true origin of a work (and explicitly clarifying that the original author wrote the original work, while someone else based the adaptation on it) is *not* misattribution. Moreover, I'm *not* advocating the permission to hurt the reputation of the original author: I believe that no reputation is being hurt, as long as it's clear that the original author just created the original work, and that the modified version was created by someone else by modifying the original work. > b. You may Distribute or Publicly Perform an Adaptation only under > the terms of: (i) this License; (ii) a later version of this > License with the same License Elements as this License; (iii) a > Creative Commons jurisdiction license (either this or a later > license version) that contains the same License Elements as this > License (e.g., Attribution-ShareAlike 3.0 US)); (iv) a Creative > Commons Compatible License. It's worth noting that CC licenses have a mandatory version-upgrade mechanism and also a mandatory jurisdiction-change mechanism. Now a mandatory relicensing-to-other-yet-unspecified-licenses mechanism has been added, thus making the situation even worse, as I explained above. When I say "mandatory", I mean mandatory for the licensor, in the sense that a licensor cannot choose to *not* grant this option to licensees. Is the licensor able to add a statement where he/she says the licensees may not choose other licenses or license versions/variants? I do not think this is possible: the license text itself says (just a few lines below): | You may not offer or impose any terms on | the Adaptation that restrict the terms of the Applicable License | or the ability of the recipient of the Adaptation to exercise the | rights granted to that recipient under the terms of the | Applicable License; In other words, I cannot release a work under the terms of CC-by-sa-v3.0 only: if I license the work under the terms of CC-by-sa-v3.0, I *automatically* also license it under any later version of CC-by-sa and any jurisdiction-specific variant of CC-by-sa-v3.0 and any later version of that jurisdiction-specific variant. And now even under any yet unknown license that Creative Commons will insert into the "list of Compatible Licenses". That's a lot of different licenses, indeed. I will *never* have enough time to review all the jurisdiction-specific CC-by-sa-v3.0 licenses (even without taking into account that I should learn a huge number of different languages and their legalese jargons!). Moreover, I *cannot* review all the future versions, since they have not yet been written! And I cannot review all the random licenses that will end up being declared "Compatible", since I do not yet know which they are! All this means that I, as an author, would be licensing my work under *totally unknown* terms, should I decide to license it under CC-by-sa-v3.0! I should trust *every and each* local Creative Commons committee, for the present *and* the future, to always correctly preserve the copyleft mechanism... Some CC-by-sa (or "Compatible") licenses could be too restrictive for my tastes: my copyleft would be destroyed, without any possibility for me of knowing it. Some other CC-by-sa licenses could be too permissive for my tastes: my copyleft could again be destroyed (with one further licensing step), without any possibility for me of knowing it. This is, IMO, a serious flaw for a license that is (or seems to be) intended to be a copyleft. [...] > 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. If "a credit for all contributing authors [...] appears", credit for the licensor 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 still think that this restriction is excessive and fails to meet the DFSG. See my previous comments[5] if you need to read a more detailed analysis. [5] http://lists.ibiblio.org/pipermail/cc-licenses/2006-November/004472.html In summary, suppose a novel is written by three co-authors who respectively write, say, 21 chapters, 25 chapters, and N chapters, where N is enough to grant the third co-author the author status, but still non-negligibly smaller than 21 (maybe N is 1, or 2, or something like that...). In this scenario, if a credit for all contributing authors appears, the third co-author must be credited as prominently as the other two, which does not seem to be reasonable. If the clause 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 so, unfortunately. I think that requiring excessive credit is a non-free restriction and that crediting in proportion to the contribution (rather than necessarily in a manner equal to every other credit) should be possible. [...] > d. Except as otherwise agreed in writing by the Licensor or as may > be otherwise permitted by applicable law, if You Reproduce, > Distribute or Publicly Perform the Work either by itself or as > part of any Adaptations or Collections, You must not distort, > mutilate, modify or take other derogatory action in relation to > the Work which would be prejudicial to the Original Author's > honor or reputation. Licensor agrees that in those jurisdictions > (e.g. Japan), in which any exercise of the right granted in > Section 3(b) of this License (the right to make Adaptations) > would be deemed to be a distortion, mutilation, modification or > other derogatory action prejudicial to the Original Author's > honor and reputation, the Licensor will waive or not assert, as > appropriate, this Section, to the fullest extent permitted by the > applicable national law, to enable You to reasonably exercise > Your right under Section 3(b) of this License (right to make > Adaptations) but not otherwise. I cannot understand the effect of this section: it seems to enforce moral rights through economic rights (because it restates moral rights in a copyright license), which sounds awkward anyway. But it seems to carefully avoid extending or strengthening moral rights in jurisdictions where they are weak or almost absent, since it says "Except [...] as may be otherwise permitted by applicable law [...] You must not distort [...]". Consequently: if it's a no-op, why has it been included in the license? If it has some effect, I cannot see which (apart from a chilling effect on people willing to create adaptations in order to criticize the original work or author, which is not good at all...). Why did Creative Commons open this can of worms? -- http://frx.netsons.org/doc/nanodocs/etch_workstation_install.html Need to read a Debian etch installation walk-through? ..................................................... Francesco Poli . 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