Category: Legal, Laws, and Regs

Recovered from the Wayback Machine.

Pessimists see the world from its dark side — always the glass half empty. They never see that the world can be made better, that problems can be solved. They are not constructive, though they aren’t destructive.

Idealists, on the other hand, only see the light. In their world, the sun always shines (except for that bit of rain needed for the trees), the birds always sing, and humanity exists in harmony. They can be pleasant. They can be exhausting. They can be destructive.

The idealist is destructive where the pessimist isn’t by introducing change without realization of the consequences. They say, “Look at this wonderful thing I have given you!”, but don’t provide the user manual. After you’ve managed to blow up a city block, when you look for the idealist they’ve moved on to another part of the world, to drop yet another idealism bomb on some unsuspecting poor sod.

Idealists. You gotta love em, because if you didn’t you’d want to strangle them.

Where this is all leading is the release this week of the Creative Commons licenses: those digital goodies that one can attach to our creative efforts to let others know if they can use these efforts in defined ways. Collaboration and community, 101. Like our idealist in the earlier scenario, the Creative Commons have dropped this little bomb in our lap, and then left it up to us to determine how to use these things, and what they really mean.

The courts of this land understand copyright law. They have rules and statutes and exceptions and publications and writings and briefs and a host of other stuff too mind numbing to contemplate. However, what it all boils down to is: you created it? You didn’t create this for someone else? Then you own the copyright on it, and all that this means. By default.

So, what if you don’t want to copyright your work? What if you want to provide the work for the good of humanity? How do you let others know that, it’s okay — they can use this work in their own effort?

According to the Creative Commons folks, we attach a CC License to the work that basically offers some of our rights to others. For instance, if I create a work, such as this weblog page, you can duplicate it if I attach a license granting this right; Or a different license might grant you the right to duplicate a post, but only if you don’t publish the material for commercial purposes.

The concept sounds great. It also sounds familiar if you’ve worked with software at all.

In the comp-tech industry we’ve had the ability to attach provisions governing the duplication, modification, and distribution of software for some time. We’ve had the GNU General Public License, the BSD License, the Open Source License and so on. More importantly, we’ve had little trouble understanding what these licenses mean because software source code is a resource that can only be shared in a finite number of ways.

When a license says that source can be used but not distributed, this means that you can use it in your applications, but not if you’re going to be distributing these applications to others. I can use Movable Type but I can’t take the core functionality of MT, such as MT.pm and the other Perl modules, and incorporate these into other applications without first getting formal permission. If a license says that you can distribute the source but must include the original copyright and license information, again, not hard to figure out.

The thing about software and licensing is that the licenses are created specifically for a given resource to meet a given set of parameters. Because of this finite use, interpretation of the license usually isn’t a problem, even with IANAL (I Am Not A Lawyer).

The Creative Commons licenses, though, are a different beastie. The concepts are virtually the same — create something and grant rights to the public domain for the betterment of all. As with the software licenses, no one can deny that the concept isn’t grand, and noble, and even necessary if we’re to share in this highly litigous society.

However, the Creative Commons licenses, at least as they’ve been introduced have already caused confusion as to how they’re to be used and implemented. And not only is this not going to help society at large, it could cause additional problems rather than solving existing ones.

An excellent example of the type of confusion that can result is the discussion in the RSS-Dev list about applying CCL to RSS feeds. The CCL information is provided in RDF/XML, which means it can be easily incorporated into other RDF/XML documents. Such as RSS 1.0. Technically, this isn’t complicated and I’ve incorporated it into one one of my RDF/XML-based applications.

However, RSS feeds are nothing more than representations of original material, grouped with other like representational material and meant to be processed by tools for one reason or another. They are not considered to be duplicates of the material — or at least, this is our general understanding of RSS. And general understanding or acceptance or assumption of a thing has legal standing, even in a nitpicky society as ours (lawyers in the office are welcome to correct me on this). XML aspirin.

But is my interpretation of what is an RSS feed really a general understanding? To some, RSS feeds are scraped essence of weblog, without the pretty packaging — true representations of the ‘weblog content’. When a CCL is included within the feed and pointed to the original source, does this mean that the RSS feed itself remains at full copyright? Or does the copyright also apply to the feed?

If the CCL is attached to the feed itself, does this mean that tools must now honor this information and check the license to determine if it can be duplicated? Does the license have to be duplicated in addition to the feed? What about cases where the copyright in an RSS file differs from the one in the source — which applies? I asked this at the discussion group and someone thought the two licenses would be ANDed together, which means that the rules would be merged and interpreted as one license. This answer, to me, represents much of the danger with CC licenses — we see them and interpret them as a technology because of the format of the RDF/XML to describe them, but we don’t understand the legality of the resulting actions.

It doesn’t take a lawyer to see that two licenses that conflict in specific grants are going to increase the confusion as to use of the source, rather than decrease it. More so than exists without a CCL.

With RSS feeds is there is a kind of implied consent associated with the feed. If you didn’t want the feed to be consumed, you wouldn’t produce it and you won’t leave it where it could be accessed. A variation on you can’t complain if people look in to your living room when you leave the drapes open.

This is no different than the implied consent with web pages. You put content on the web to be viewed, and unless you password protect the pages, they’re open for viewing by all.

You there! Did you know that this page is copyrighted? Well, it is! Did I give you permission to read this page? Well, did I?

You’re still reading. Did I give you permission to continue reading? Well?

Dammit, you’re still reading!

See what I mean by implicit consent? By putting this page online, I’m granting you the implicit right to read it, and other laws, such as Fair Use, give you the right to pick juicy parts out and duplicate these to your weblogs for your own posts. A very workable system. Until now.

The problems with Net accessible resources has little to do with material stored as text and structured with markup of some form and all to do with resources based in other formats. Formats such as images, video, and music. Especially music. When can I copy a music file and put it on my site? When can I distribute it? Can I alter it?

These are the types of resources that appear in the news and cause a great deal of havoc. These are the resources that Creative Commons Licenses were meant to be applied to — as a signal to others that this photograph, video, MP3 file, or writing (as separate from web page formatting) can be duplicated, or modified, or distributed and no one’s going to come after your butt with a mean, hungry legal person.

The confustion about CC Licenses occurs not because we don’t understand the intent behind the licenses, but because we don’t understand how to interpret the use of the licenses. This is no different than any other aspect of law.

By provided RDF/XML to desribe the license, the Creative Commons opened the door to including license information in any document formatted with markup, regardless of the appropriateness of the action, and our understanding of such actions. Such as in RSS feeds. Like this web page. Even extending to software, as Jon Udell demonstrated with his LibraryLookup functionality. Looking closer at Jon’s use of the CCL, a question arises as to what exactly Jon is covering in the license: is it the LibraryLookup function? Or the contents of the web page where the license is embedded? This can’t be understood just by the fact that the license is embedded in the same HTML page as the desciption of LibraryLookup.

My CCL embedded in this page doesn’t provide answers as to whether I’m granting the rights described in the license to the writing in this post, or to the page in its entirety (formatting and all) or even to the style sheet and layout used. I’ve not provided clear information as to what the license covers. What’s worse, guess wrong and you’ve violated my copyright. And I’ll come after your butt with a mean, hungry lawyer. (Nah. Not really.)

We’re just as likely to include the XML first, and ask why later. And weblogging only propagates this with its ‘meme of the minute’ adaption of anything ‘new’. After all, the RDF/XML doesn’t prevent the page from validating And the license information validates in RSS, as well. Legally, this and a 252.25 will buy you an hour with a lawyer and a cup of coffee.

Sam thinks the Creative Commons licenses are genius. I disagree. By releasing these licenses without providing more detailed understanding of how they work (other than a nifty little Flash movie, a lot of grand words about sharing and the greater good, and links to other indirectly related material), and by releasing license information in an XML format almost guaranteeing that the licenses will be attached to documents formatted with XML, regardless of fit or not, the Creative Commons has released a bomb on the idealists among us. Let’s just hope they don’t walk away and leave us to blow ourselves up.

Update

From Lessig’s weblog (Lawrence Lessig is the chairman of the Creative Commons):

 

Matt Croydon wonders about how CC licenses will interact with software. The answer is that they won’t. We share RMS’s concern that there is a proliferation of licenses in software. Our view was that there was a dearth for other creative content. Thus we start outside the software world. For now, at least.

Question for Lessig et al: Define software? And where does something like RSS fit into this?

Second Update

Lawrence Lessig modified his original post, which now says:

 

Matt Croydon wonders about how CC licenses will interact with software. In a careless earlier version of this, I said they won’t. Sam Ruby suggests the most I could mean by that is that our energy will be directed elsewhere. Indeed, that’s the most I mean. We share RMS’s concern that there is a proliferation of licenses in software. And our view was that there was a dearth for other creative content. Thus we start outside the software world. But creative reuse of creative content is what CC is all about. My apologies for any confusion.

He also made a brief comment in his weblog to our questions:

 

Great questions all, and I’m sorry I wasn’t clear before. We don’t mean to forbid the use with software. We just didn’t write the licenses with software in mind. But if the license fits, wear it. Obviously, adding this into RSS is a critically useful adaptation, and we encourage it.

I wrote (correcting my usual burningbirdisms):

 

Appreciate your additional, comment but unfortunately, this raises more questions.

In a post I wrote on this (at http://weblog.burningbird.net/fires/000766.htm ), I brought up the fact that, for weblogs at least, individual posts could have different licenses attached, granting each different rights as to republication.

However, RSS feeds are template based and automated. So the RSS template would be setup to grant public domain access to the text of an entry, automatically, but the actual entry itself may be much more restrictive.

A person republishing the text does so based on the license in the RSS feeds, which is counter to the intent of the person who wrote the text.

Can you not see the potential problems of this in court? In fact, couldn’t this open up the door for potential lawsuits against the tool maker as well as the person who re-published the work? (Worst case scenario.)

Additionally, you say it’s a critically useful adapation. Why? Saying so on your part doesn’t explain to us why this is so, and this type of explanation could help us understand how to effectively apply license in other circumstances.

And you also say the CC encourages incorporation of license data into RSS feeds. Why?

I know there’s discussion about being able to search on this license information on the web, looking for public domain material. However, this seems a case of putting the reuse capability before the content.

Wouldn’t one search for content first, and then look at license? And the license would be attached to the content.

Also, RSS feeds have no persistence. An item rolls off the feed just as quickly as it rolls on. RSS feeds really wouldn’t be effective sources of persistent data for future discovery.

I’m sorry, and I appreciate your answer. But all you’ve done is raise more questions.

I did find L. Lessig’s response to be disappointing. He says one moment that CC licenses are not for software, and then the next says, sure, if it fits use it. This makes me hesitate to use the CC licenses more rather than less.

Isn’t trapping inconsistencies something we take pride of in weblogging? And isn’t this turn-about inconsistent? And even more confusing?

As has been said elsewhere — we have software licenses carefully crafted for the industry. I can see no reason at all why one would use the CC license, admittedly not crafted for the industry, in place of ones that have been used for years, with success, and that are specifically for the industry. Doing so, just to do so is ludicrous. Forward motion for the sake of forward motion.

As for the RSS, issue — this only strengthens my opinion that licenses should not be used in RSS feeds. If the reason is to duplicate the license attached for a posting, then this will fail because RSS templates and tools act on all items in a RSS feed, not individual ones. The license attached to the individual posting may end up being different than the license attached to the RSS item.

Additionally, if the purpose of adding license information to the entry is so that a site, interested in republishing the item in total doesn’t have to return to the original source, I can’t see benefit. Not one that overcomes the confusion about implementation (i.e. in RSS 2.0, CC licenses can be applied to the ‘channel’ as well as individual entries — and exactly what does this mean? That one can republish the entire page of postings?)

And if a person does republish an entry from a posting, they are required by the CC license to also republish the license. This means that all aggregators that publicly publish their results (meerkat, news is free and so on) will have to duplicate the license info with the entry.

The CC site states that one reason we would include the RDF/XML with a resource to be shared is to allow one to search the web for public domain resources. But this makes little sense. Wouldn’t one search for specific content, and then check the license? Regardless, how would the RSS feed participate in this? The items contained in the feeds fall off the feed as quickly as they enter it.

I raise these questions here rather than at the RSS-dev discussion lists, primarily because I’ve been shut down in this debate twice on that list. I won’t try for ‘third time’s the charm’.

One can debate the validity of my questions. But mine won’t be the only questions, or comments, or concerns. There needs to be a mechanism that allows public debate on the CC products, and one that is promoted at the highest level of the CC website.

I appreciate what the Creative Commons folks are trying to do. And I don’t fault the intent. However, I think that the execution of same requires an interactive element that doesn’t exist at the moment. And this will ultimately damage the credibility of both the CC and the CC licenses. IMHO.

Final Update

Sam has also interjected a note, based in comments attached to his posting when I repeated what I said here, in response to his posting. I think his reply, and my response to his reply says all I need to say in regards to the “Coders Only Club”.

Exclusion based on membership has never appealed to me. Whether it’s based on race, gender, religion…or technology and applications thereof.

And one should be able to express opinions about CC licenses, and RSS, and other technologies without having to join the COC club.