more on Creative Commons Humbug says Dvorak

[David Farber <dave () farber net>]

Begin forwarded message:

From: Joseph Lorenzo Hall <joehall () gmail com>
Date: July 21, 2005 6:41:36 PM EDT
To: Dave Farber <dave () farber net>
Cc: Jeffrey Kay <jeff () k2 com>
Subject: Re: [IP] more on Creative Commons Humbug says Dvorak
Reply-To: joehall () pobox com


On 7/21/05, David Farber <dave () farber net> wrote:





> Begin forwarded message:
>
> From: Jeffrey Kay <jeff () k2 com>
>
> Dvorak lashes out pretty hard on the CC system, but in his defense,
> there is
> one troubling aspect of CC that is worth noting.  CC puts forth the
> notion
> that content should be distributed via license instead of copyright.

I am by far not the ideal person to be correcting Mr. Kay, but I'd
like to think I know a few things about licenses and license
agreements.

Mr. Kay makes the mistake here differentiating  a "license" from
"copyright".  Licenses are what copyright holders (or authorized
sub-licensors) give in order for the recipient to exercise any of the
exclusive rights granted by copyright law.  So, licenses are an
essential part of copyright, not something different.

I think Mr. Kay is trying to distinguish between licenses and *license
agreements*.  Maybe the distinction that Mr. Kay was trying to get at
was that license agreements (which are meant to be treated as
contracts) can last longer than the copyright in the underlying work.

As far as I can tell from reading the legal versions (like [this
one]), the Creative Commons licenses are bare licenses or naked
licenses.  That means that there is no requirement for the recipient
to agree to anything like in *license agreements* (which are licenses
*plus* a contractual infrastructure).  Put more simply, Creative
Commons license are not meant to be treated like contracts, but like
copyright licenses. (For a discussion of the distinction between
contracts and bare licenses please see Lawrence Rosen's book ["Open
Source Licensing"], especially chapter 4).

[this one]: http://creativecommons.org/licenses/by-nc-nd/2.5/legalcode
["Open Source Licensing"]:
http://www.amazon.com/exec/obidos/tg/detail/-/0131487876/

The Creative Commons licenses expire when the underlying copyright in
the works expire, then they become part of the public domain.

--
Joseph Lorenzo Hall
UC Berkeley, SIMS PhD Student
<http://josephhall.org/>






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