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

--
Kat Walsh, Counsel, Creative Commons
IM/IRC/ <at> /etc: mindspillage * phone: please email first
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

--
Kat Walsh, Counsel, Creative Commons
IM/IRC/ <at> /etc: mindspillage * phone: please email first
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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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/
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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Sarah Pearson | 19 Sep 03:35 2014

FAL compatibility: concluding the process

Hi everyone,

Based on our analysis and the [limited] public conversation, we are strongly inclined to deem the Free Art License a "BY-SA Compatible License" per the criteria and process we published months ago. We see no major obstacles to compatibility in legal or practical terms, and we feel the two licenses are very similar in spirit and effect.

However, since the public discussion took place in July-August, we understand that many may not have been able to follow the conversation as closely as they would have otherwise. To give everyone the opportunity to provide input, we are keeping the discussion open until the end of September. Please take a look at the mailing list archives and the wiki analysis, and speak up on this list (or via private email if you prefer) if you have concerns or questions.

All the best,
CC Legal


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Sarah Pearson | 29 Jul 22:09 2014

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

This second discussion prompt relates to the differences in the scope of the two licenses.

The FAL licenses only copyright, though licensors are prohibited from using related rights to prevent exercise of the permissions granted by the license. BY-SA 4.0, on the other hand, licenses some rights beyond copyright, such as sui generis database rights and neighboring rights. Unlike the FAL, BY-SA requires compliance with its conditions (attribution, ShareAlike) even when those other rights, and not copyright, are implicated.

For compatibility purposes, when someone takes a BY-SA work, adapts it, and then applies the FAL, there is a possibility that a downstream user may not realize they need to attribute and ShareAlike when they share the work in a way that implicates only sui generis database or neighboring rights and not copyright. As a practical matter, however, we feel this is unlikely to be a major problem given that most reusers will either be unwilling or unable to discern when one type of right is implicated but not another closely related right. Accordingly, most reusers who are concerned about doing the right thing are likely to attribute and/or ShareAlike where there is uncertainty.

Thoughts? Your input would be much appreciated.

best,
Sarah


Sarah Hinchliff Pearson
Senior Counsel, Creative Commons
Get Creative Commons updates: http://bit.ly/commonsnews
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Tarmo Toikkanen | 24 Jul 23:10 2014
Picon

Re: 4.0 translation worksheet discrepancies

Thanks for the clarifications, Kat!

While you're fixing the worksheet, and adding sentences that are not 
strictly license text, might I suggest you also add the strings that 
need to be inserted to the license texts when making the 6 variants? Now 
that they are not in the worksheet, we had to separately ask the 
translators to do those. It would be simpler to have everything in the 
worksheet.

Specifically, these are the missing strings:

BY and BY-NC:
- Insert 3(a)(4): “If You Share Adapted Material You produce, the 
Adapter's License
You apply must not prevent recipients of the Adapted Material from complying
with this Public License.”

BY-ND and BY-NC-ND:
- Insert “For the avoidance of doubt, You do not have permission under 
this Public
License to Share Adapted Material.” at the end of Section 3(a)(1)

BY-ND:
- Change Section 2(a)(1)(B) to “produce and reproduce, but not Share, 
Adapted
Material”
- Insert “, provided You do not Share Adapted Material” to Section 4(a)

BY-NC-ND:
- Change Section 2(a)(1)(B) to “produce and reproduce, but not Share, 
Adapted
Material for NonCommercial purposes only”
- Insert “and provided You do not Share Adapted Material” to Section 4(a)

Actually, to be on the safe side, it might be best to furnish the 
worksheet with full sentences of all alternatives. Meaning: Whenever a 
license variant calls for an "insert" or "change" or "remove", having 
all those different versions in the worksheet would make sure that the 
meanings are accurately translated. I can imagine that in quite a few 
languages, adding or removing a phrase might not be trivial, but require 
changes in the rest of the sentence.

On 24.7.2014 21.36, Kat Walsh wrote:
> On Mon, Jul 21, 2014 at 2:46 PM, Tarmo Toikkanen
> <tarmo.toikkanen@...> wrote:
>> On creating the xhtml version of the 4.0 suite translation, I've stumbled
>> onto the following discrepancies between the html text currently in the CC
>> BY-NC-SA 4.0 legal code html file and the translation worksheet:
>>
>> 1. Section "Considerations for the public", last sentence is "More
>> considerations for the public" in the legal code, while in the worksheet the
>> sentence is "More considerations for licensees". Which is correct?
> This is an error in the worksheet. "More considerations for the
> public" is the correct language.
>
>> 2. The worksheet is missing the H1 title "Creative Commons Legal Code".
>> Should it be translated?
>>
>> 3. The worksheet is missing the H3 title "Creative Commons
>> Attribution-NonCommercial-ShareAlike 4.0 International Public License"
>> (although in most cases it's probably easy to build from the license
>> components).
> Thanks; we'll add these to the worksheet also.
>
>> 4. The worksheet is missing the "Additional languages available" bit, which
>> is in html <!-- comments currently. Should it be translated or not? If yes,
>> can we also fix the html invalidity problem, as the commented section
>> contains a <p> that is not closed? The section also contains an "<a name"
>> attribute, which is currently obsolete. What is your advise?
> It should be translated; we'll add this also. (It is currently
> commented-out in the English because it makes no sense to display it
> when there aren't any translations published yet.) Please do fix this
> in your final draft, including replacing the obsolete element; we'll
> add the corrections to the English also.
>
>> 5. "Back to Commons Deed" is in the html, but not in the worksheet. Should
>> it be translated?
> Yes, it should be.  (The worksheet is mainly to aid our reviewing, and
> since this is just navigational text we're not particular about how
> this is translated--but since it is confusing that it is not present,
> we will add it.)
>
> Thanks,
> Kat
>

--

-- 
Tarmo Toikkanen
researcher, tarmo.toikkanen@...
Learning Environments research group, http://legroup.aalto.fi
Creative Commons Finland, http://creativecommons.fi
Aalto University, http://aalto.fi

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Gmane