At 12:29 PM 9/6/2006, John Panzer wrote:
Bob Wyman wrote:
...
The most
interesting cases will be those licenses that attempt to assert limitations
to rights which would normally be considered to be granted to consumers of
feeds. Such rights would include things like "Fair Use" and "implied
licenses." It is *vitally* important to our community that we ensure that
such restrictive licenses are not encouraged or facilitated by this rfc.
Restrictions on fair use couldn't be imposed unilaterally by license,
but only by a contract (fictionally accepted by click-wrap, or
actually negotiated and accepted).
The concern about limiting implied licenses is important, though. By
definition, an implied license is one that's presumed from the
context of an offering and by the absence of a contrary explicit
license. If as a factual matter, many people have been acting based
on implied licenses of broader scope than either fair use or what
would be chosen in an explicitly linked license, then you might say
it's better not to provide this encouragement to link licenses at all
(and hoping that time and general practice will morph those implied
terms into fair uses).
If the rfc encourages people to add licenses, it opens up the
possibility that their explicit terms will contradict and override
what has previously been implied.
This is a critical point. Without this, implementors cannot safely
ignore licenses they don't understand (falling back to things like
"fair use" if they can't find any licenses that grant additional
copying rights). This means that implementors would likely have to
drop feeds containing new licenses on the floor, meaning that new
license schemes would never be deployed.
...
Thus, it would seem that the only effective use of the license link
is to grant rights not to restrict them.
Yes. Given the current murky and complicated legal situation with
implied licenses, fair use, etc., granting explicit and well defined
rights is a huge win for everyone.
I don't think there's a legal mechanism for telling people "you may
only use this format if you grant a license equally or more
permissive than X." (at least none short of patent claims on the
format itself...)
--Wendy
The second sentence in 1.1 is:
Nor can a license associated with a feed or entry
restrict or forbid access to, redistribution, aggregation,
caching and display of those items by third party
intermediaries such as search engines and so-called
"online aggregators".
This second part of 1.1 is stating support for the theory that the
act of publishing data in the Atom format creates an "implied license" for
the limited purpose of syndication and lists a number of processes which are
considered to be part of the syndication process. Hopefully, my discussion
of the first sentence explains what this is all about.
My only suggestion for this sentence is that it might be less
strongly worded. Given that the law in this area is not settled, it might
make sense not to say "Nor can a license... restrict..." Rather, it might be
more accurate to say something like: "It is believed that a license ...
cannot restrict...."
How about (IANAL of course):
"Nor can a license.... restrict or remove any implied copy or usage
rights which would otherwise exist in the absence of the license."
The intent being that adding a license, or a new type of license, is
always safe: If what you're doing with content is allowable, if the
feed provider adds a license, it is still allowable.
-John Panzer
--
Wendy Seltzer -- [EMAIL PROTECTED]
Visiting Assistant Professor of Law, Brooklyn Law School
Fellow, Berkman Center for Internet & Society
http://cyber.law.harvard.edu/seltzer.html
http://www.chillingeffects.org/
