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From Richard Fontana <rfont...@redhat.com>
Subject Re: New versions of CC licenses
Date Mon, 09 Dec 2013 04:05:52 GMT
On Sun, Dec 08, 2013 at 08:46:52PM -0500, Jeffrey Thompson wrote:
> Most commercial software licenses prohibit modification and redistribution.
> 
> CC-BY requires, as I read the language, that you distribute the CC-BY content
> under terms with authorize modification and redistribution.

CC BY 4.0 specifically says:

 You may not offer or impose any additional or different terms or
 conditions on, or apply any Effective Technological Measures to, the
 Licensed Material if doing so restricts exercise of the Licensed
 Rights by any recipient of the Licensed Material.

And: 

 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.
 
"Licensed Material" is the original stuff you get under CC BY. The
definition of "Adapted Material" is:

  material subject to Copyright and Similar Rights that is derived
  from or based upon the Licensed Material and in which the Licensed
  Material is translated, altered, arranged, transformed, or otherwise
  modified in a manner requiring permission under the Copyright and
  Similar Rights held by the Licensor.

Taking all that together... I'm not sure you're right. What CC BY 4.0
seems to be saying is that your derivative work license, which perhaps
can otherwise be arbitrarily restrictive, cannot block the derivative
work licensee from exercising CC BY rights in, and complying with the
upstream CC BY obligations applicable to, the *original stuff*.

Suppose your commercially-licensed product is delivered in source code
form, and it includes a copyrightable ASF project Apache License 2.0
source file that is textually identical to the upstream
ASF-distributed source file. It includes the typical ASF project
header. I am not clear on whether you are contending that this
identical downstream *copy* cannot be modified or redistributed
because your commercial license says that modification and
redistribution are prohibited. Is this *copy* tainted, such that I
have to go to apache.org to get a digitally identical copy of the same
file (or to make it more interesting, a copy that is different only in
some trivial way with no copyright significance)? If your view is that
I can exercise ALv2 rights in that file without going to apache.org,
then I think you are saying that ALv2 and CC BY 4.0 are largely
similar.

> To me, that means that the CC-BY license is not compatible with commercial
> software licenses, since its very likely that you can't take CC-BY licensed
> software and distribute it under your existing commercial software license.  

Here we ought to recognize the reality that CC BY is typically not
applied to software, even when it covers things included in
largely-software works. CC BY is more likely to be applied to image
files or formal documentation (and formal documentation under a CC
license isn't typically bundled with upstream software releases). This
is stuff that has a separable quality to it that I'd agree might not
be so obviously true if we were talking about a bunch of source code
files.

In the typical case, if the commercial licensor is so concerned about
the prospect of CC BY material it can easily identify and remove it at
low cost before product shipment. Get rid of the upstream
documentation, replace the images. I believe Larry has made a point
similar to this.

But even if we imagine CC BY is being applied to software (or the
commercial licensor can't easily avoid retention of all the CC BY
nonsoftware stuff, though that seems unlikely): the only possibly
problematic scenario seems to be the one you've raised, namely, the
*existing* commercial license that failed to account for the possible
(present or later) inclusion of third-party components under licenses
having the feature you are saying exists in CC BY. While revising the
commercial license is trivial, renegotiating deals with customers may
very well not be. 

But I'm not sure why that's the only way to ensure adequate compliance
with CC BY, particularly for the typical CC BY licensor. They chose a
license that broadly speaking allowed for proprietary derivative
works. They deliberately did not choose CC BY-SA, or the CC BY-NC.
They just want it to be clear to your customers that, regardless of
what the commercial license says, the original stuff under CC BY isn't
being subjected to additional restrictions. Seems to me there are
various ways in which one could make that clear without having to
revise the commercial license.

> Does it seem to you that we are going around in circles?

Probably to some degree. :) Apologies to legal-discuss.

 - Richard


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