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Re: CC Sampling Plus 1.0

Ben Finney wrote:
>>  1.the Derivative Work(s) constitute a good-faith partial or
>>recombined usage employing "sampling," "collage," "mash-up," or
>>other comparable artistic technique, whether now known or hereafter
>>devised, that is highly transformative of the original, as
>>appropriate to the medium, genre, and market niche; and
> Trivially non-free. The DFSG freedom to create a derived work is the
> freedom to create *any* derived work, not some limited subset as
> defined in this license.

I agree.

However, I do have a question about this ...

If I myself have sampled from a CC sampling plus work in producing a new
work, I am under the impression that I'm pretty free to re-license as I
please. (In other words, we move forward one generation of derivation).

So, assuming that I pick a license that is otherwise an approved "DFSG
free" license (not wanting to open that can of worms right now), would
the fact that I had used CC Sampling+ work in my project be a problem?

In particular, with respect to the "source" of my work, I would clearly
have actually worked from the original work, being somewhat constrained
in what I could do, but would my collection of pre-processed samples
(say, sound effects), be a sufficient "source" provision? (I could
certainly argue that the pre-processed samples are a "preferred form for
modification", since it's much less work to relocate samples than to
extract them from an original work -- the latter process is generally an
interactive creative one that doesn't ordinarily leave an electronic
record anyway -- or perhaps, the preprocessed samples *are* the
electronic record). AFAIK, such a collection of samples itself (as well
as my final product) meets the requirements to escape the CC Sampling+
license restrictions (sufficiently transformative).

I believe that in such a case I have not only evaded the legal
restrictions of the CC Sampling license, but also that (in most cases) I
am outside of what the original artist was trying to control (IOW, I'm
within both the "letter" and "spirit" of the license; the artist is
unlikely to consider this practice "unethical". So this is not merely
"exploiting a legal loophole", but is rather a "legitimate use of the
license, following the author's intent").

For comparison, this would be like using samples permitted under "fair
use" from an "all rights reserved" work in a free-licensed project. What
the CC Sampling+ does is to make this "fair use" exemption larger and
more clearcut than it is with "all rights reserved" (in which case, it
might be much more legally ambiguous, and therefore riskier to use --
also, it's much less clear that the author intended to allow such uses).

ISTM that none of this is different for CC "Sampling" than for "Sampling
Plus". "Noncommercial Sampling Plus" is a whole different matter,
though, since it attempts to control the uses of the samples (meaning
we're back to only "fair use" exemptions).

BTW, "sampling" in the sense of the CC sampling licenses seems to be
pretty broadly interpreted (much more so than allowed by "fair use").

So, in some ways, it may be that the Sampling licenses are actually
"more friendly" to the free commons than is the NC or NC-SA license --
in that you can actually extract something usable in free works from them.

Am I right?


Terry Hancock (hancock@AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com

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