Sarah Pearson | 25 Mar 02:38 2015

input requested: GPL compatibility

This final discussion prompt is essentially a catch-all, intended to encourage you all to raise any final concerns about one-way compatibility from BY-SA 4.0 to GPLv3 before we close the public discussion period. 


We also wanted to highlight two other areas of difference between the two licenses, though as you will see below, we do not view either issue as particularly problematic for compatibility purposes.


The first is license termination. Both licenses terminate automatically upon breach. BY-SA is reinstated automatically if the breach is cured within 30 days of discovery. GPLv3 is reinstated for first-time violators who cure within 30 days of getting notice of the violation from the copyright holder, and may be reinstated after other violations if it has been corrected for 60 days without the licensor's objection. These differences make it so one could technically have rights under the GPLv3 reinstated but not under BY-SA in situations where both licenses apply (i.e. when BY-SA content is adapted and integrated into a GPL-licensed project).[1] As a practical matter, licensors and licensees in both communities typically deal with license violations outside the strict letter of the license, so we feel this is unlikely to be a real world obstacle to compatibility.


The other difference we wanted to highlight was the option to comply with later versions. GPLv3 gives licensees the option to comply with a later version of the GPL if the licensor has so specified, or to use *any* version of the GPL if no version number was specified, regardless of whether the work has been adapted. BY-SA allows licensees to comply with the conditions of future versions of BY-SA, but only if that version was applied to an adaptation of the work. Because only version 3 of the GPL is under consideration for compatibility at this time, reusers that adapt BY-SA content into GPL-licensed projects would only be able to use GPLv3 unless and until other GPL versions are made compatible. With solid education for both communities and encouragement of clear marking by licensors, we do not feel this should not be an obstacle to compatibility.  


Does anyone disagree with the analysis of these two points and/or have other issues to raise before a final compatibility determination is made? Please raise any questions or comments on or off-list as soon as possible. We plan to close the public comment period on March 31. 


best,

Sarah


[1] Theoretically, one could have their rights reinstated under BY-SA but not GPL, but this does not create the same risk of potential infringement. Because we are only considering one-way compatibility from BY-SA to GPL, the adapter’s license (i.e. the last-applied license) will always be the GPL. If someone looks only at the GPL when using a GPL project that incorporates a BY-SA work, at worst they will they will not realize they still have rights to the BY-SA work.
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Sarah Pearson | 10 Mar 19:59 2015

input requested: BY-SA/GPL compatibility - attribution

This discussion prompt about one-way compatibility from BY-SA 4.0 to GPLv3 deals with attribution.


The specific attribution and marking requirements in the two licenses vary slightly.


BY-SA requires:

  1. creator and attribution parties (if supplied)

  2. copyright notice (if supplied)

  3. license notice (if supplied)

  4. disclaimer notice (if supplied)

  5. URI or link to the licensed material (if supplied)

  6. indicate and link to license


If you change the work, BY-SA also requires you to indicate that you did so and retain any notice on the work about previous changes made to it.


GPL requires:

  1. copyright notice

  2. license notices and notice of Section 7 additional conditions (if supplied)

  3. notices about lack of warranty (if supplied)

  4. copy of the license


If you change the work, GPL requires you include a prominent notice to indicate that you did so, along with the relevant date. It also requires special notices for certain interactive user interfaces.


When BY-SA content is adapted into a GPL-licensed project, the adapter would, of course, have to comply with the BY-SA attribution and marking requirements. However, Section 2(a)(5)(B) of BY-SA 4.0 would enable downstream reusers of the GPL-licensed project to attribute both authors in the manner required by the GPL.


We suspect GPL-style attribution would satisfy CC licensor expectations, but this is ultimately a question for our community. Are there any concerns about the application of GPL attribution requirements to BY-SA works?

best,
Sarah
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Sarah Pearson | 3 Mar 20:54 2015

input requested: GPL/BY-SA compatibility

This is the next discussion prompt relating to one-way compatibility from BY-SA 4.0 to the GPLv3. The focus of this email is effective technological measures (“ETMs”), such as DRM, used to limit access to a licensed work.


BY-SA prohibits application of ETMs by licensees entirely if those measures would prevent others from exercising their rights under the license.


In contrast, the GPL does not explicitly prohibit application of DRM and other ETMs. Instead, it addresses any potential lockdown of licensed works by requiring distribution of source code in a modifiable form. In the software context, this is sufficient to make ETMs moot because a reuser in possession of the source code may freely modify and redistribute the licensed work.


For compatibility purposes, this creates a chance that BY-SA works adapted into GPL-licensed projects could be subject to DRM applied by downstream users who look only at the GPL requirements.

We are looking for input from our community: is this risk of unintended violations of the ETMs clause adequately neutralized by the release of the work in unencumbered, modifiable form?

best,
CC Legal
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Sarah Pearson | 23 Feb 13:15 2015

input requested: BY-SA/GPL compatibility - license scope

This is the second discussion prompt relating to one-way compatibility from BY-SA to the GPLv3. This email relates to license scope, with a particular focus on how the two licenses deal with patent rights.

As we all know, the tone and scope of the two licenses differ, due largely to the fact that the GPLv3 was designed for use with software and software-like works. Of course, both licenses are primarily designed to license copyright, but each license also covers some rights closely related to copyright, which means the scope of each varies slightly. GPL covers “copyright-like laws that apply to other kinds of works, such as semiconductor masks,” while BY-SA covers “Copyright and Similar Rights,” which is defined to include neighboring rights, sui generis database rights, and other closely-related rights.


The most significant difference in license scope is the treatment of patent rights. BY-SA expressly reserves patent rights to the licensor, while GPLv3 expressly includes a patent grant from each contributor.


Because patent rights are expressly excluded from BY-SA, there is no reliable claim of an implied license to do things with a BY-SA licensed work that implicate patent rights. From a compatibility perspective, this means that when a BY-SA work is adapted into a GPL-licensed project, downstream users of the project would not have patent rights to the BY-SA work. (Although the GPL includes a patent license, the scope of rights licensed by the BY-SA licensor cannot be expanded because an adapter applies the GPL, just as it is not expanded when an adapter applies a later version of BY-SA that licenses more rights than the original.)


This problem is largely academic, given how rarely BY-SA works are subject to patents that would be implicated by simply reproducing or adapting the content. (In fact, CC has not yet been able to come up with a realistic use case, but we welcome concrete examples of those from our community that we may be overlooking.) Nonetheless, as a theoretical matter, it creates a problem because it is possible to imagine a downstream user of a GPL project mistakenly assuming she does not have to worry about patent rights even though a BY-SA work is adapted into the project.


We have asked the FSF to weigh in on this issue. We are also curious what all of you think. Does the unlikely but serious risk of patent problems for downstream users outweigh the benefits of compatibility? Can we do enough to alleviate this risk with proper education for reusers?


We look forward to your input.
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Sarah Pearson | 5 Feb 17:32 2015

input requested: GPL/BY-SA compatibility - source

This is the first of several discussion prompts we will be sending about one-way compatibility from BY-SA 4.0 to GPLv3. This particular email addresses the source requirement in GPL and how it would work if one-way compatibility is declared.


As many have pointed out on this list over the last several days, the GPL requires that works be distributed with source or that source be made available (with “source” being the preferred form for making modifications to the work).


BY-SA does not impose a similar requirement. Instead, BY-SA licensors are free to distribute their works in any format, whether or not modifiable.


If one-way compatibility is declared, this will not change.  No new obligations would be imposed under the BY-SA license, either upon the original licensor or any downstream adapter who wishes to license their contributions under the GPL instead of BY-SA. This is the BY-SA side of the equation.  


On the GPL side, those who adapt BY-SA works and choose to license their contributions under the GPL would, however, still have to comply with the GPL obligation to distribute or make available the work in the preferred form for making modifications. If a particular adapter cannot do this because she never received modifiable format from the BY-SA licensor and/or cannot convert the content to modifiable format, then that person would not be able to take advantage of the one-way compatibility declaration and use the GPL. This is our understanding of how one-way compatibility will operate from the GPL side of the equation, though it is ultimately a matter for FSF to opine on formally as GPL's steward.


Assuming this is the right interpretation, the next question is what actually constitutes the preferred form for making modifications for works other than software (musical recordings, text, photos, etc.). This is not as simple of a question for content as it is for software. The answer will ultimately depend once again on FSF's interpretation as steward.


We have been in touch with FSF about obtaining a formal pronouncement on these issues, and we look forward to hearing from them during this process on this list. In the meantime, we look forward to hearing more from all of you about how you think these issues might play out in practice.

best,
CC Legal
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Kat Walsh | 3 Feb 01:49 2015

FYI: changing hats

Greetings! Today was my last day at Creative Commons, and so anything
else you may see me post to this list is personal opinions only.
(Since I have been on this list for nearly a decade I have no
intentions of unsubscribing!)

For any remaining issues where you have been corresponding with me
where you need someone from CC, please write to
legal@...

If you just want to hear legal ramblings that will fill your inbox
with analysis, minutiae, and the occasional awful pun, please continue
to write me at my personal address, kat@...

Cheers,
Kat

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Sarah Pearson | 29 Jan 22:13 2015

BY-SA compatibility proposal: GPLv3

Creative Commons and the Free Software Foundation are pleased to formally propose the GNU General Public License v.3 as the next candidate for consideration under the ShareAlike compatibility process. Note that we are pursuing one-way compatibility only, meaning BY-SA works could be adapted and GPLv3 applied, but not vice-versa.

This proposal is rooted in the growing (albeit niche) need for a solution to the melding of content and code in certain domains, such as gaming. Developers sometimes abstain from integrating BY-SA content into GPL-licensed software projects because of uncertainty about how the two copyleft licenses interact, and there is reluctance to use BY-SA for code due to CC’s explicit discouragement from doing so. This obstacle to reuse and remix of BY-SA content in projects under a license so similar in substance and spirit is at the heart of the problem the compatibility mechanism in BY-SA was designed to solve.


Nonetheless, there are certainly differences between the two licenses, especially given that one was designed for software and one explicitly was not. We have created a wiki page for the proposal, which includes an initial comparison of the two licenses.


This email marks the opening of the public discussion on this mailing list. We will be sending out specific discussion prompts on major topics in the coming weeks, but we encourage you to provide input at any time on- or off-list.

best,
CC Legal
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Kat Walsh | 23 Dec 23:41 2014

Norwegian translation of 4.0 published

Congratulations to CC Norway (and particularly Gisle Hannemyr) on the Norwegian translation of the 4.0 license suite!

Our blog post is here:
http://creativecommons.org/weblog/entry/44602

Cheers,
Kat

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Kat Walsh, Counsel, Creative Commons
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Help us support the commons: https://creativecommons.net/donate/
California Registered In-House Counsel #801759
CC does not and cannot give legal advice. If you need legal advice, please consult your attorney.
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Kat Walsh | 19 Dec 02:46 2014

Scholarly resources on legal issues related to CC: your help wanted

We have a page up on the wiki for collecting resources related to CC licenses--their interpretation, enforceability, and surrounding legal ideas:

https://wiki.creativecommons.org/CC-related_legal_scholarship_and_references

There are only a very few up right now, just to start the page, as it's something we hope to build on with you. We'd welcome any additions!

(And yes, for those of you who have written some yourselves, we would love to have links to your papers here!)

Cheers,
Kat

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Kat Walsh, Counsel, Creative Commons
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Help us support the commons: https://creativecommons.net/donate/
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CC does not and cannot give legal advice. If you need legal advice, please consult your attorney.
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Sarah Pearson | 4 Oct 22:08 2014

closing public discussion period

Since July 22, we have been running a public discussion about compatibility between BY-SA 4.0 and the Free Art License 1.3 ("FAL"). Thanks very much to those of you who weighed in on and off list.

This email marks the closing of the public discussion period. We see no obstacles to compatibility after doing an internal analysis of the two licenses, and we have heard virtually no misgivings from the community. As such, we plan to formally announce compatibility with the FAL. Right now, we are preparing new FAQs and other explanatory materials to accompany the announcement. We also have created a wiki page explaining the key policy decisions made during the process. We plan to make the official announcement in mid-October.

Thanks again for your input and interest. We are excited to finally bridge the gap between these two important copyleft licenses.

best,
CC Legal
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Kat Walsh | 19 Sep 20:54 2014

NonCommercial interpretation page

During the 4.0 versioning process, we pledged to honor a long-standing
commitment to provide more information about the NC licenses.[1] The
legal team has written an information page:

https://wiki.creativecommons.org/NonCommercial_interpretation

While this page is currently public, it is open to additional revision and comment, particularly if there are important points missing or considerations we should address.

(If you are short on time, you have now read the most important part of
this email! If you would like more explanation and rationale, read on.)

1. About this document

We had published a first draft to staff only, which included examples
of NC and non-NC use cases--but after extensive feedback, we removed
them, because they created more questions than they resolved. Rather
than revising the examples to be indisputable, which is difficult when
individual situations may vary widely, we've emphasized principles and
considerations instead. (Some comments from our affiliates and others we asked for initial feedback led to additional clarifications.)

The considerations section is intended to be a practical guide to
points that potential licensors should be aware of before choosing the
NC license.

And though we know many people hoped for additional clarity here, we
are still steering clear of anything that appears to be clarifying the
definition. We've stated that the definition of NC is remaining
consistent across versions, with all of its gray areas, and are
avoiding additional text that would appear to change it; this document
is intended only to clarify the points on which consensus already
exists, not to change it.

2. Why this page now?

We chose to steward these licenses, not deprecate them, as a result of
a community and internal decision process made in parallel with the
4.0 process. General consensus is that we ought as steward provide
some support and education for how these licenses work even if we
recommend against their use for educational resources, scientific
publications, and similar.

We're aware of the discussions around the implementation of the
Collecting Society Directive in Europe, which mandates member states
implement legislation requiring collecting societies to allow their
members to license their works under "non commercial" terms.  We would
like to be sure national implementations are written broadly enough to
allow members to use our NC licenses as they stand.  In support of
that, it will be useful to be as clear as possible about what NC
allows and doesn't allow.

There are some principles enshrined in the definition and how the
licenses operate that are clear and not open for discussion--we need
to better articulate those lest misunderstandings fuel FUD or manifest
themselves adversely in court decisions and similar.  (E.g., the case
in Germany where a trial court concluded NC wasn't defined by our
licenses, resulting in a judge-made definition that is generally
considered a bad decision--currently on appeal.)

Our goals with this page are to alert would-be NC licensors about key
adoption considerations, in particular what NC doesn't enable, and
provide clarity on the fundamentals including how the licenses
operate. We'll be developing pages like this for the other license
elements subsequently (BY, SA, ND).

Thanks,
CC Legal

[1] See http://wiki.creativecommons.org/4.0/NonCommercial#Draft_2

--
Kat Walsh, Counsel, Creative Commons
IM/IRC/ <at> /etc: mindspillage * phone: please email first
Help us support the commons: https://creativecommons.net/donate/
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CC does not and cannot give legal advice. If you need legal advice, please consult your attorney.
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Gmane