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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: updating w.a.o/legal/resolved for Creative Commons Attribution
Date Tue, 28 May 2013 19:46:11 GMT
Hi Sam, 

 

Let me repeat below the language from the CC-BY license that you quoted as concerning you
in your earlier email dated 5/24. Since you want me to focus on that particular license rather
than state my general complaints about our Category A list, I include below my comments about
each specific CC-BY provision so as to allay your concerns about that specific license:

 

"You may not offer or impose any terms on the Work that restrict the terms of this License
or the ability of the recipient of the Work to exercise the rights granted to that recipient
under the terms of the License."

 

This is the same message that I conveyed to Jeffrey Thompson and to you in my last email here.
It is a factual statement under copyright law about the Work. There is nothing unfortunate
about that provision in the CC-BY license.

 

“You may not sublicense the Work.”

 

We and our downstream licensees don't need sublicensing rights. All CC-BY licenses to the
Work flow directly from the original author. This is exactly the same as the patent licenses
we get for W3C and IETF specifications, so get used to not having sublicensing be applicable
for components in Apache works. That doesn’t mean we have a problem! We and all our downstream
users still have all the rights we are used to in Apache works.

 

“... When You Distribute or Publicly Perform the Work, You may not impose any effective
technological measures on the Work that restrict the ability of a recipient of the Work from
You to exercise the rights granted to that recipient under the terms of the License.”

 

This is a restatement that you cannot restrict the Work under the CC-BY License from downstream
users. For example, if ASF or someone downstream creates a proprietary shell around this CC-BY
Work, they can't "impose any effective technological measures" that would restrict access
to the CC-BY Work, although the shell itself remains proprietary. This is similar to the freedom
guaranteed by the Copyright Act (and the DMCA) that allow licensees to reverse engineer for
certain purposes. This provision is in the public interest.

 

“... If You create a Collection, upon notice from any Licensor You must, to the extent practicable,
remove from the Collection any credit as required by Section 4(b), as requested.”

 

I read this as protecting the reputation of the Licensor. This is in the public interest.
(Apache often writes letters to software distributors requesting that they not claim that
we endorse or support their collective or derivative works.)

 

“If You create an Adaptation, upon notice from any Licensor You must, to the extent practicable,
remove   from the Adaptation any credit as required by Section 4(b), as requested.”

 

I read this as a request “to the extent practicable” to protect the reputation of the
Licensor. This is in the public interest, just like the previous sentence.

 

In summary, while this is all different from the language in our own license, it strikes me
as entirely reasonable language nevertheless. With appropriate NOTICE, we and our downstream
licensees can easily comply.

 

You suggest that these provisions of the CC-BY license are “incompatible with both GPL and
with the ability to sublicense such code in a proprietary (closed source) implementation.”
As to the sublicensing issue, I addressed that above. As to the GPL or proprietary code compatibility
issue, I fail to see why that is either an accurate statement nor our problem to resolve.
The GPL community and our downstream proprietary licensees can easily and reasonably comply
with CC-BY, and if they don’t like it, they can remove that code from their derivative works.
(Just like the GPL community used to refuse Apache works because they misunderstood our Apache
license but then wrote GPLv3 to solve the problem, perhaps they will also accommodate themselves
to CC-BY someday?)

 

/Larry

 


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