Re: [C-FIT_Community] Open Licensing Hot Potatoes

my comment as sent to Pho...

i'm currently working through exactly this issue - with advice from some 
legal colleagues in ukcdr.org - regarding my madonna remixes. i am 
releasing my track under my own copyleft license - a very simple 
adaptation of the license i use for writing. the reason i'm not using CC 
as yet is because we need to translate them to work under UK law - 
apparently there are a few minor bits of terminology which actually make 
it very difficult to apply the license.

it depends what you consider infringing material as well. i have been 
advised that i can consider short samples and parody as fair dealing 
under UK law. the situation may well be different in the USA, and i 
would be interested to hear about that. but i see that it is rather 
difficult for any of my work to be infringing unless i was deliberately 
plagiarising another work or distributing warez - which i as a composer 
am not really very interested in doing. in the case of GPL code, this is 
quite different, as coders have to make sure they havent seen source 
code from any proprietary products before writing. there are further 
complications also with software patents - dont even get me started on 
how patents destroy the creative marketplace....

best

m~

Seth Johnson wrote:
> (Forwarded from Pho list.)
> 
> -------- Original Message --------
> Subject: pho: Open licensing hot potatoes
> Date: Fri, 23 May 2003 12:24:06 -0500
> From: zrosen <[email protected]>
> To: [email protected]
> CC: [email protected]
> 
> So the quesion is: If someone release work under an open license - like
> GPL'd 
> code, or Creative Commons media - should the users of that content be liable 
> if it is infringing material - or is all the liability the sole
> responsibility 
> of the original licensor?
> 
> GPL says the licensors are responsible - Creative Commons explicitly says
> the 
> original liscensor gets all the liability.
> 
> Some perturbed bloggers don't like this are are now dumping CC liscenses 
> because of this Like Karl-Friedrich Lenz:
> http://k.lenz.name/LB/archives/000297.html#000297
> http://k.lenz.name/LB/archives/000292.html
> 
> "I think this is a serious problem which needs to be addressed quickly and 
> thoroughly by Creative Commons.
> 
> This kind of warranty has no business to pop up in a license intended to
> give 
> content away for free. Since the licensor is not charging anything, he 
> shouldn't expect to promise any extra liability to every licensee. If there
> is 
> any economic value to that "warranty", using a Creative Commons license
> would 
> mean actually paying people for using the works covered by the license. I 
> don't think that's a fair deal."
> 
> And Jacques Distler:
> http://golem.ph.utexas.edu/~distler/blog/archives/000153.html
> 
> "While I’m eager to see the widespread dissemination of ideas contained in 
> this weblog, I’m not about to assume an open-ended legal responsibility. The 
> CC License is not revokable, which is to say, if you got something from here 
> between December 20, 2002 and May 1, 2003, I’m still your Sugar Daddy. From 
> this day forward, however, you’re on your own."
> 
> But there is a definitive reason as to why the CC liscense had this
> provision.
>  Exective director Glen Otis Brown explains:
> http://creativecommons.org/learn/aboutus/people#10
> 
> "One of the main goals of the Creative Commons licensing project is to
> remove 
> as much legal doubt as possible from the re-use of creative materials.
> Another 
> goal is to minimize the amount of rights-clearing that must go on in the
> chain 
> of creativity. Having the original licensor promise to clear these rights -- 
> within reasonable limits -- furthers these goals. Letting the original 
> licensor pass that risk on to all licensees undermines these goals; it
> creates 
> a situation in which every licensee must in fact do his or her own due 
> diligence for every single transaction. What good is the license if that's
> the 
> case? "Feel free to use my work provided you can prove that I'm not passing 
> liability on to you" -- that seems unfair, and tremendously inefficient."
> 
> Im guessing that a CC liscense or a CC-like liscense will come about with a 
> slightly different hot potatoe flavour thgat a few paranoidish bloggers will 
> start choose to use.  But will there be a liscense for code that comes about 
> that puts that provision in?
> 
> SCO Group CEO Darl McBride sure thinks thats a good idea... (in case you
> don't 
> know SCO is sueing IBM for $1 billion and threatening other vendors because
> of 
> claims that they are infringing upon their recently purchased Unix IP. SCO 
> used to be known as Caldera, makers of the Caldera Linux distrobution. 
> Funny 
> enough, they actually didnt stop distributing their Linux distro until a few 
> months after their suit was filed against IBM.  And even funnier in a sick 
> kind of way is Micrsofts recent paid liscensing deal of SCO's IP push to 
> pressure other vendors to do the same......
> http://www.businessweek.com/technology/content/may2003/tc20030523_2790_tc121.htm
> 
> SCO Group CEO Darl McBride:
> "Q: When I talk to some people in the open-source community, they say this
> is 
> an attempt to overturn the way the community works. How would you answer
> them?
> A: I believe the way the open-source community works right now has some 
> fundamental flaws that have got to be addressed. We need to address how this 
> open-source intellectual property is developed, routed, and sold. Thousands
> of 
> software developers send code to contribute to open-source projects -- but 
> there isn't a protective device for the customer using the software to
> ensure 
> they're not in violation of the law by using stolen code.
> 
> Basically it's a 'buyer beware' situation. The one holding the hot potato is 
> the end-use customer. If the process can't provide more guarantees for 
> customers, I don't think it will pass the long-term test at the customer 
> level. You need some comfort level other than 'We can warrant none of this,
> we 
> don't know where it came from. And because you got it for free, you
> shouldn't 
> complain about it."
> 
> -Zack
> 
> 
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