In this episode, Denise and Tom begin to persuade me, but it's the notion of evolving toward open source law that I find convincing.
I have to admit that Tom and Denise are so darn reasonable and I seem, well, a little petty, almost as if I still hold some kind of grudge since the day the CC group amended the first set of licenses and pointed out the names of people who had suggested the changes and LEFT OUT A MENTION OF MY NAME. Fortunately, I don't let that kind of stuff bother me.
There's a comment on one of the posts in this thread from Karl-Friedricha Lenz, who has written as much and as well about the details of the CC licenses as anyone I know. He raises a great point - maybe now is a good time to consider simplifying the license language and making it a little easier to understand.
I'd also like to see a greater effort made to collect and maintain analysis and interpretative materials. I'd also like to see a stronger leadership role from the CC in letting us know how to enforce these licenses.
I was talking to Tom today about some other things and we discussed this issue a bit.
Tom asked, "Aren't we better off with some license than no license?" You can argue that not having a license allows you to retain as many of your copyright rights as possible and allows a user/publisher to claim as few rights as possible. However, you leave the scope of what someone else can do to later interpretation.
If you use a license (of any kind), you gain the benefit of (1) explicitly setting out the terms of the license and (2) as in the CC licenses, you can disclaim warranties, limit liability and cover other important matters. The second point is very important.
You'll probably agree that these two points make us want to have a license agreement rather than not have one.
That brings us to the second part of the analysis: CC license or custom license. Let's put aside for the moment that my fellow Between Lawyers generous offer of volunteering me to write a custom license in my free time in fact will move me to conclude that a CC license is the way to go.
Over time, disputes would be decreased because people would be working under standard agreements that gave them a known set of expectations and for which a body of interpretation would have grown up. The standardization would reduce the friction that custom (and often ill-matched and poorly drafted) contracts arguably place on transactions.
In a sense, then, we look to the 80/20 rule and say that we are better off with less than perfect contracts and smoother transactions with lower legal costs (with fewer disputes) than we are with contracts that attempt to provide us with perfect protection that cause more disputes and make transactions more difficult.
It's worth emphasizing that this is a radical approach. Yet, I'm coming to believe that it may be what is required in the Internet era.
In that light, the CC licenses represent a good example of this approach. If 14 million pages have CC licenses, then we start to get the benefits of standardization, common interpretation and a reduction in the friction of transactions.
Therefore, I think that it is important to see if we can use a CC license to help further this trend, even if I might quibble with the particulars of the language or find some of it largely impenetrable.
Now, the rest of us have to be a little careful with the reasonableness and low-key approaches of our litigators, Tom and Denise. In a real dispute, they'll both turn this language inside out and point out every bit of vagueness and inconsistency.
Here's an example:
Assume someone improperly uses my material in a "Collective Work" under the CC licenses. I want them to remove my material from the Collective Work. I look at the last sentence of Section 4(a) and it says:
"If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any reference to such Licensor or the Original Author, as requested."
Do they have to remove the material or just a reference to my name? Why would I want them to remove my name if the material is still in the Collective Work?
Do you think my easy-going litigator colleagues won't have a field day with that language if a dispute ever arises? Do you have any comfort about how a judge will interpret this language? Do you really think that the nice, easy-to-understand summary will carry the day?
On the other hand, it millions of people are using this license, I think it's more likely that we'll see a more reasonable interpretation than we might in a single contract between two parties.
In the case of the latest generation of the CC licenses, I think that we are past the 80/20 range and, for most authors, the license gets you most of what you want. With 14 million uses of the licenses, we might be able to lobby for clearer provisions.
What's most intriguing to me about the CC licenses (or, more accurately, the widespread adoption of them) is that we can use programming to ensure that material is used in accordance with the applicable license by incorporating the license restrictions into the material. A custom license probably would not offer that same opportunity. This will help everyone. I'd like to have the materials I want to use self-validate that I can use them in the way I want rather than try to figure that out for myself.
As I indicated yesterday, I expect to end up in favor of moving to a CC license. Like Denise, if we reach that decision, I lean toward the most restrictive of those licenses. In other words, I don't want others making money off my work without my permission or some form of revenue sharing; I don't want people using my materials without giving me credit (attribution); and I don't want people turning my material into something else without my permission. These are the premises of the CC license Denise suggested.
If, however, we were in a world of automatic transactions and payments, a license permitting commercial use upon automatic payments might be quite interesting.
Like others have noted, however, some aspects of this license still are not very clear, especially what the meaning of "non-commercial" is.
I think that unless we hear strong objections from Marty and Ernest, you'll be seeing a CC license on this blog in the very near future.
As I mentioned to Tom today, I've all but decided to put a CC license on my seminar materials and slides, so I've been leaning in this direction for a while. I just wish they'd clean up the language a bit.