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From Richard Fontana <rfont...@redhat.com>
Subject Re: New versions of CC licenses
Date Sat, 07 Dec 2013 06:48:29 GMT
On Fri, Dec 06, 2013 at 04:27:42PM -0500, Jeffrey Thompson wrote:
> "Lawrence Rosen" <lrosen@rosenlaw.com> wrote on 12/06/2013 03:55:46 PM:
> > IBM can satisfy the Apache License easily by honoring the
> > redistribution conditions in AL section 4. IBM can satisfy the CC-BY
> > license in almost exactly the same way.
> Larry,
>    I don't see anything in AL section 4, that says "You may not offer ... terms
> [that] restrict[] exercise of the License Rights by any recipient...".  

Correct, but it must also be acknowledged that ALv2 does not say "You
*may* offer terms that restrict exercise of the rights under this
License by any recipient *as to the Work*". 

This is significant because ALv2 is not entirely silent on the
issue. It says that recipients of the Work or Derivative Works must be
given a copy of ALv2. Why? The answer is surely not attribution, which
is handled by other provisions. Life would be simpler for everyone if
there were no requirement to include the upstream license text, if it
really is meant to serve no purpose. 

And again the key statement is this, in section 4:

  You may add Your own copyright statement to Your modifications and
  may provide additional or different license terms and conditions for
  use, reproduction, or distribution of Your modifications, or for any
  such Derivative Works as a whole, provided Your use, reproduction,
  and distribution of the Work otherwise complies with the conditions
  stated in this License.

I suppose one interesting thing is the fact that this sentence is in
the license at all; it says what I think we'd all assume would be true
if the sentence were absent. I am not familiar with the drafting
history of ALv2 but my guess is that this sentence, like the
definition given for 'Derivative Work', is a reference to the history
of interpretation of the GPL, then certainly the most dominant and
influential open source license. This is a sentence that is making
clear that ALv2 is *not* adopting the kind of copyleft policy that was
associated with certain prevailing interpretations of the GPL by 2004.

In any case, the inclusion of the sentence is helpful. It does clearly
say that "modifications" can be under "additional or different license
terms"; it then says that "such Derivative Works as a whole" (the
meaning of which is unclear, but seems to me to contain an echo of
GPLv2 section 2) can be under "additional or different license

But it is important to note that this very detailed sentence fails to
say that "You may provide additional or different license terms and
conditions for use, reproduction, or distribution of the Work
itself". Why did the drafters of ALv2 go to the trouble of writing
this lengthy sentence, and *omit* the granting of permission to use
"additional or different license terms" for the Work, if they intended
it not only to be allowed but to be a common use case?

And then this sentence contains a condition: "provided Your use [etc.]
of *the Work* otherwise complies with the conditions stated in this
License". This sentence is drawing a distinction between
"modifications to the Work" and "such Derivative Works as a whole", on
the one hand, and "the Work", the originally-licensed thing, on the
other. The Work continues to exist, and the conditions of ALv2
continue to apply to it. The licensee's downstream recipient is
getting the Work (as part of some Derivative Work, perhaps) along with
a copy of the ALv2 text. In trying to make sense of this whole
sentence, I must conclude that it embodies the view that the portions
of the 'Derivative Work as a whole' that are 'the Work' remain
governed solely by ALv2, and cannot be supplemented by more
restrictive terms. The ultimate end user is getting an ALv2 license
for the Work, and that is why ALv2 requires Derivative Works to
include copies of ALv2, since otherwise it would be completely

All this is what CC BY is saying as well, the difference being that CC
BY is clearer (and far more verbose). The concept is the same. You can
make derivative works over which you have a copyright interest. You
can license the derivative work under a more restrictive license. But
you have no permission to license the original material under a more
restrictive license. 

So if there is a reason to keep CC BY 4.0 (or, retroactively, earlier
versions of CC BY) out of 'Category A', it should not be for this

- RF

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