Re: [cc-community] Does BY-SA extend to a newspaper? Lawrence Lessig wrote:
> I think we need to have a real, extended discussion of this. I like  
> this proposal, though I don't know enough to say I think it is right.  
> I'm hopeful the iCommons Summit might be an opportunity to work  
> through this more carefully.

Although I understand the motivation to extend the copyleft to
containing works, it presents a number of nasty consequences which I
believe have to be avoided if you want it to work (here's a few I can
think of right off):

1) "License the Universe"

Any reasonable use of a work means it is "contained" in something else
whose license you are not able to, or should not attempt, to control.

For example, an HTML page "contains" an image. A website "contains" an
HTML page. The Internet "contains" the website.  Therefore, if a
copyleft license binds "containing" works, then a copylefted image
either cannot be published on the Internet period, or the entire
Internet must be relicensed!

Think of Wikipedia -- is it one work, or millions?

Obviously, the courts won't hold that up. So is the plan to leave the
scope up to the courts? That seems like a dangerous piece of baiting.
They might easily decide to set a precedent against ALL copyleft.

I used to think that copyleft was intrinsically limited to what
copyright can cover -- and I think that's not a bad rule of thumb to
apply to what copyleft *should* be. However, the legal mechanism of
copyleft can apparently be used to make just about any requirement you
want ("you must hop on one foot for the rest of your life or your
license to this work is revoked"). Given that this can clearly be taken
to unreasonable extremes, where should the line be drawn?  I think it's
a very good idea for the line to be drawn by license stewards like CC
instead of leaving it up to lawsuits.


2) "Balkanization of the Commons"

It is the nature of copyleft licenses to conflict with each other. We
have no really good solution for defining "a free license" so that we
can make the sort of claim where a license binds other licenses simply
to be "free licenses".

We can't even agree within the free software/free culture community what
exactly constitutes a "free license", so how can we expect the courts to
figure it out?

We are saved to a degree by the limited scope of existing copyleft
terms. They allow any license (including other free licenses) to be
applied to "mere containers" and to siblings within the same container,
so they prevent lock-ups due to license incompatibility.


3) "My Brother's Keeper"

Defining the "container" of a work as a "derivative" so that it must be
licensed entirely under the same terms also binds all sibling works.

Thus, if I have an HTML page with GFDL, GPL, By, and By-SA images in it
(not to mention "verbatim use only", "By-NC-ND", or "fair use" images),
then -- if a container-binding copyleft is applied to any of the above
"free" licenses -- the licensing is locked up and I cannot publish.


As things stand we have a situation with some admitted faults -- it may
be a little *too* free. But trying to sew up the loopholes is going to
cause problems, and I'm not convinced that the cure wouldn't be worse
than the disease.

Cheers,
Terry

-- 
Terry Hancock (hancock@AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com

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