Re: atom license extension (Re: [cc-tab] *important* heads up)

[Wendy Seltzer]

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/  

Re: atom license extension (Re: [cc-tab] *important* heads up)

[Wendy Seltzer]

At 04:08 PM 9/5/2006 -0700, James M Snell wrote:

Hello Wendy,

Thanks for the feedback.  I've cc'd the atom-syntax list so the rest of
the Atom community can comment.


Thanks James,
I'm still not clear on what's happening in 1.1.

 1.1   It must also be noted that licenses associated with feeds or entries

using these mechanisms are advisory and are not, by themselves,
legally binding.  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.

 Why can't they be legally binding?  They're not self-executing, but
 licenses outside of feeds aren't either, and likewise may or may not be
 legally binding depending upon other things than just the form of their
 expression.

To this point I've received exactly the opposite feedback from others
(all of whom weren't lawyers, btw, but who have had experience with
licensing issues in the past).

It is my understanding that the licenses cannot be considered legally
binding *by themselves*.  That is, precisely as you indicate, they are
not self-executing.


What I meant by that is that they don't actively restrict 
non-compliant use, as a technological protection measure does: I can 
receive a feed and choose to breach its license.   They can have 
legal effect, though:  Unless I have some legal excuse such as fair 
use, I'm then not compliant and possibly infringing copyright.  (You 
still have to come after me for copyright infringement.)


Are you trying to say that the license-rel in the feed is merely a 
notification to those who are curious that this is probably (but 
we're not certain) the license under which the feed may be used 
?  That's the way it reads.  If so, what's the point?  Don't you 
either want to assert take the feed under this license or not at 
all or say nothing and make people come to you and ask?


I'd recommend dropping this paragraph, as it may give incorrect legal advice.


 2   License link relations appearing within a feed MUST apply to the
metadata of the containing feed element only and do not extend over
the metadata or content of any contained entries.

 Why? Why would a feed need a license separate from its content?  Lots of
 the metadata elements would be functional or would give users fair use
 claims, absent a license.

Sam Ruby's planet feed is a prime example.  Sam does not own rights over
the individual entries that appear within his feed, however, Sam does
own the rights over the feed itself, including the selection and
arrangement of entries within that feed.


That seems minimally useful to me (the license, not Sam's feed!), but 
why prohibit people from licensing their feeds' content too? Or am I 
just misreading this, and you're saying that depending on where you 
put the tag, the license's coverage differs?



Entry content might include or reference material from other sources.
Licenses associated with an entry MUST NOT be assumed to cover such
material.  Implementations cannot necessarily trust that publishers
have the right to license material claimed to be covered by any
associated license.  Care should be taken when making decisions based
on the referenced license.

 This seems to be going down a road of legal interpretation that's
 unnecessary and not necessarily correct. The current CC licenses are
 offered on a taker beware basis -- the licensor offers the rights he
 has, and doesn't guarantee a licensee's rights (or even his own) to
 anything he might have incorporated.  That's not the only way to write a
 license, though.  (Even within CC, version 1 had an explicit
 representation and warranty section that was dropped in v.2.)

 Implementations should trust the legal representations only as much or
 as little as they trust any other claim made by the feed.  How licenses
 chain is a matter of individual legal interpretation.


Ok, so if I'm interpreting this comment correctly, the recommendation
would be to simply remove the paragraph in question?


Yes.

Thanks,
--Wendy


--
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
Chilling Effects: http://www.chillingeffects.org