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

Cesare Marilungo cesare at poeticstudios.com
Thu Feb 21 09:27:02 EST 2008

Rob wrote:
> 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
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For the record. I asked for help on the creative commons mailing list. 
It seems that I should not worry and that I can keep the by-nc-nd for 
these tracks.

Moreover, I think that to be valid, the license should be specified at 
least in the id3 tags, and/or it should come with the download. When you 
download my albums from Jamendo, for instance, the license is specified 
both in the id3 tags and in a text file included in the zip archive. At 
Opsound the downloads pointed to the tracks hosted on my own server, 
which had no licensing information.




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