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

Ken Restivo ken at restivo.org
Sat Feb 23 18:02:33 EST 2008

On Thu, Feb 21, 2008 at 03:27:02PM +0100, Cesare Marilungo wrote:
> 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
> >
> >   
> 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.

The big money people (advertising agencies, movie studios, TV networks, ringtone sellers, etc.) do not want to Share Alike. They're not about that; quite the opposite. They usually demand tight control over anything they use in their work, and are willing to pay for that.

In other words, if someone sells an SA work of mine, they're not going to make a LOT of money off of it, at least not enough for it to have been worthwhile for me to have prevented them doing so with NC. Have at it, spread the love!  But the big corporations who make huge money are going to be stopped short by the SA just as much as they would by an NC.

So I look at SA as a filter that lets the small, community-oriented players in freely, and keeps the big players out-- unless they want to negotiate a price with me which of course I remain willing to do.


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