[LAU] [OT] Another problem with creative commons licenses [UPDATE]

[Rob]

On Wednesday 20 February 2008 16:52, Cesare Marilungo wrote:
> Those who already got the tracks from Opsound can probably use them
> commercially, and they can give away the track but the license is
> not transmitted with the tracks. So those who get the tracks from
> these people cannot use them for commercial purposes. Otherwise one
> wouldn't been able to license things with many different licenses.
> Am I wrong?

I'm no lawyer, but even in version 1.0 of the CC by-sa license, it 
says in section 4a, "You may distribute, publicly display, publicly 
perform, or publicly digitally perform the Work only under the terms 
of this License [...]".  These terms apply to the people you gave it 
to, which I guess would be Opsound.

So Opsound distributed it under the terms of cc-by-sa, because that 
was the only way they could have done so, and then the people who 
downloaded it from them were covered by the terms of cc-by-sa, due to 
section 4a, when they distributed it further.  They were granted the 
right "to reproduce the Work" (section 3a) but only "under the terms 
of this License" (4a).  So when they in turn distribute the song to 
someone else, it's still licensed under cc-by-sa, and so on.

It's hard to take back a work distributed using a copyleft license... 
just ask SCO.

> http://danheller.blogspot.com/2008/01/gaming-creative-commons-for-p
>rofit.html
> Maybe the author is wrong, but my understanding is similar.

I think that he is wrong, and again, just ask SCO.  Or the author of 
any formerly free software project who changed the license to 
something less free, only to discover they couldn't do a thing about 
the people continuing to distribute (and modify) the last free 
version of their work, usually eclipsing the "improved" proprietary 
fork.

However, this particular theory -- that you can win damages despite 
previously having distributed the work under a free license with free 
sublicensing, by forcing the defendant to demonstrate that he 
obtained it under that license -- has never gotten as far as a 
courtroom as far as I know.  With source code it's easier because you 
usually have a copyright notice at the top of every file referencing 
the GPL or whatever.  With photos you might have a watermark 
mentioning which CC license applies to it.  But with music, what do 
you have, an ID3v2 tag?  Usually not even that.

In the end, at least in the US, anyone can cost you a lot of money 
just by bringing suit against you, whether they have grounds or not.  
What makes the system work most of the time is that the expense cuts 
both ways. 

Back when I was younger and too broke to afford a lawyer, in the early 
days of the web, I received a legal threat from someone who claimed 
something on my web site infringed a copyright, one he himself didn't 
even own.  He was pretty explicit about his strategy being to cause 
me expenses I couldn't afford, regardless of whether he had standing, 
and I had to capitulate.  Eventually I called his bluff, put the 
material back online and told him to shove off, and he went away.  It 
costs money to pull that kind of crap as well, and I pity the 
copyright owner who tries this strategy the first time he uses it 
against someone with more money and time than he has.

Oh, wait.  No I don't, because that would once again be SCO.

Rob