[License-discuss] [License-review] CC withdrawl of CC0 from OSI process

Chad Perrin perrin at apotheon.com
Fri Mar 2 17:32:54 UTC 2012

On Thu, Mar 01, 2012 at 07:33:16PM -0800, Rick Moen wrote:
> Quoting Chris Travers (chris at metatrontech.com):
> > Derrida's theories on text and meaning are entirely applicable to
> > legal agreements even if we pretend they aren't.
> I note without special objection that you pretty much ignored my point and
> moved the goalposts.  No worries.  I doubt you really expected to debate
> deconstructionism, anyway.  At least, I sure hope not.

I think the point was "if you think statistical data is easy to present in
a way that says anything you like, you should have a look at the English
language, which is a whole lot more open to interpretation -- especially
when what you're saying gets complicated".  Whether you think Derrida's
work on establishing principles of deconstructionism is productive or
not, it sure does a good job of demonstrating how you can (if you really
want to) insert some really surprising inferences into anything you read,
which raises the question of exactly what might have been intentionally
implied.  "Okay, sure, that interpretation seems unlikely to be what was
intended, but we can't really be *sure*."

> The concept of 'derivative work' has a quite well developed framework[1] 
> in caselaw.  A creative work in one of the statutorially covered
> categories is conceived to have elements that can be conceptually 
> classified as either expressive or functional.  Elements whose content
> is dictated by functional demands (e.g., compatibility), as well as
> those taken from the public domain, are not eligible for copyright
> protection.  Only those deemed expressive are.
> Even if nobody had ever filed a copyright suit over a computer program
> before -- hence we didn't have CAI v. Altai, Micro Star v. Formgen,
> Lotus Dev. Corp v. Paperback Software, Whelan Associates v. Jaslow
> Dental Laboratory, CMS Software Design Sys v. Info Designs, Apple
> Computer v. Franklin Computer, Williams Electronics v. Artic International,
> etc. to guide us -- these well developed concepts would have existed
> from leading cases derived from music, literature, movies, theatre, and
> all the other categories of copyrightable works.  Likewise, various
> defences (fair use, copyright invalidity, independent creation,
> de-minimus, statutory limitations on holder righs, expiry, forfeit,
> preemption, permission, misuse, abandonment, acquiescence, estoppel, 
> unclean hands, other equitable defences) exist and are well developed
> for reasons owing little or nothing to do with software yet are directly
> applicable there.

Now give me examples for Poland or Taiwan that hold the same meaning for
purposes of established understandings of copyright relevant to license
writers, please -- or a guarantee that if I follow the advice a lay
reader might derive from those examples, I'll be legally safe.

> >
> > 2)  Therefore a book which doesn't include in fairly clear detail the
> > various possibilities as to what courts *might* do is fundamentally
> > incomplete.
> This claim is pretty hilarious, seen in reasonable context after
> actually bothering to understand how the law works -- unless of course
> you are one of the people trying to figure out to the micrometre just
> how close you can skirt infringement and get away from it.  That's that
> edge case thing, so utterly beloved of many technology people, to which
> I alluded earlier.

That's not the only way an "edge case" might arise.  Any case where some
effect arises because something strays from the center of conditions that
had the most attention when designing a system (for instance) is an edge
case, whether that edge case is intentionally pursued or someone runs
into it by accident.  It's mostly the accidents that concern me.

>   Inability to deterministically predict with metronomic precision what
>   will and will not be a derivative work, and be utterly certain that
>   a court will rule that way is a Problem.
>   The fact that coders might have to work at understanding the fine
>   details of the more-complex software licences is a Problem.

When they have to work at understanding the fine details of something
complex that is well outside their range of expertise, they are likely to
be wrong a lot of the time.  Even lawyers don't always get it right
(which is how one side loses and the other wins in court; otherwise,
they'd never get that far).

>   The fact that MIT/X wastes a whole 13 lines is a Problem.

Who exactly said anything about the MIT/X11 License being a whole
thirteen lines of text was a problem?  You seem really bothered by this,
but I must have missed where anyone said anything like that.

>   [Licence foo] lacking lavish and strong defences against patent
>   trolls is a Problem.

I'd say that's only a problem if you can't live with any license that
doesn't offer such a defense.  Obviously we *can* live without it,
because otherwise no software development would ever go unpunished in the

>   The possibility that a plain-English explanation accompanying
>   a licence might fail to convey some nuance of the licence itself
>   is a Problem.

It's only a problem if people are espected to be able to use the "plain
English" explanation as a guide to proper use of the license, without
having to actually understand all the legalese itself.  If the
explanation is explicitly there only to help people quickly narrow down
license selection before reading the licenses themselves in excruciating
detail, and if you can reasonably expect readers to understand it that
way, I guess it's fine.  Of course, that's exactly the sort of principle
that should be applied to encyclopedia articles too (a summarized, broad
strokes treatment of a subject that is likely to miss a lot of nuance
that could be very important to really understanding some aspect of the
subject matter), but people insist on pretending an encyclopedia article
is supposed to be some kind of authoritative Final Word quite often.

>   Inability to determine absolutely for certain that some particular
>   conduct with software is immune from risk of successful litigation
>   without hiring expensive legal help is a Problem.

That's only a problem if you A) absolutely cannot afford to be wrong and
B) cannot afford expensive legal help.  If both those conditions apply,
maybe you shouldn't write the software you had in mind.

> Must be nice to have time for such hobbies.  I remember thinking that
> way, and then I left college.

. . . and stopped writing software?

> Out in the real world, we have to deal with shades of grey and lack of
> perfect knowledge, which is why a wise person will not spend huge
> amounts of time pondering whether you can get away with particular types
> of deployments without having created an unauthorised derivative work, 
> but rather will be cautious and let someone else land in court.  

Are you aware that using certain publishing services could conflict with
the terms of CC-BY because of terms that are not at all addressed in the
standard "human-readable summary" explanation of the license?


I think it's a bit telling that Creative Commons differentiates this from
the license text itself by calling it "human-readable", by the way.

Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ]

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