Re: Need clarification: What is "commercial"?

> > So alternatively I can license a song under BY or
> >BY-SA and earn nothing
> > (compulsory licenses are waivered), yet other
> >musicians can freely adapt or
> > use my song, go on to resell their spin-offs or
> >remixes without so much as
> > a $1 tip for me.
> 
> One thing with BY-SAas opposed to a bare BY, you
> could also turn around and 
> freely resell their adaptation or your adaptation of
> their adaptation or your 
> remix of their remix or adaptation without so much
> as a $1 tip for them.
> 

Yes, SA creates space for a competitive market in lieu
of a structure for royalty payments. If an RIAA label
sold a compilation of BY-SA music on iTunes for $9.99,
you'd be free to sell that same compilation on your
own website for half that amount, thus gaining a price
advantage. Though arrangements are copyright-able, the
label couldn't stop you because their arrangement
would also have to be BY-SA.

But I don't see why this wouldn't be the case if only
the Attribution license was used. This clip from the
legal code for the Attribution license (section
4-Restrictions, part a) says: "You may not offer or
impose any terms on the Work that restrict the terms
of this License or the ability of a recipient of the
Work to exercise the rights granted to that recipient
under the terms of the License.") Doesn't this mean
that the label couldn't impose a standard copyright on
the compilation, or does it only apply to the
individual tracks therein?
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On Wednesday 02 May 2007 10:43 pm, Eric Garner wrote:
> > > So alternatively I can license a song under
BY or
> > >BY-SA and earn nothing
> > > (compulsory licenses are waivered), yet
other
> > >musicians can freely adapt or
> > > use my song, go on to resell their spin-offs
or
> > >remixes without so much as
> > > a $1 tip for me.
> >
> > One thing with BY-SAas opposed to a bare BY, you
> > could also turn around and
> > freely resell their adaptation or your adaptation
of
> > their adaptation or your
> > remix of their remix or adaptation without so
much
> > as a $1 tip for them.
>
> Yes, SA creates space for a competitive market in lieu
> of a structure for royalty payments. If an RIAA label
> sold a compilation of BY-SA music on iTunes for $9.99,
> you'd be free to sell that same compilation on your
> own website for half that amount, thus gaining a price
> advantage. Though arrangements are copyright-able, the
> label couldn't stop you because their arrangement
> would also have to be BY-SA.
>
> But I don't see why this wouldn't be the case if only
> the Attribution license was used. 

The argument goes like this (corrections welcome if I get
any of this wrong):

If they made a CD of recorded music that was licensed BY,
you would be right.

If they had their own artists cover the BY licensed tunes,
they do not have to 
keep the BY license for the new copyright they get.

If they make a derivative of the song (new/changed lyrics,
melody) and have 
their artists record that, they do not have to license the
new work BY.

> This clip from the 
> legal code for the Attribution license (section
> 4-Restrictions, part a) says: "You may not offer
or
> impose any terms on the Work that restrict the terms
> of this License or the ability of a recipient of the
> Work to exercise the rights granted to that recipient
> under the terms of the License.") Doesn't this
mean
> that the label couldn't impose a standard copyright on
> the compilation, or does it only apply to the
> individual tracks therein?

So, they can't change the license on the work, but they can
for new works.

Is that clear? Correct?

all the best,

drew

-- 
(da idea man)
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Hey guys,

[snip]

> > Yes, SA creates space for a competitive market in
lieu
> > of a structure for royalty payments. If an RIAA
label
> > sold a compilation of BY-SA music on iTunes for
$9.99,
> > you'd be free to sell that same compilation on
your
> > own website for half that amount, thus gaining a
price
> > advantage. Though arrangements are copyright-able,
the
> > label couldn't stop you because their arrangement
> > would also have to be BY-SA.
> >
> > But I don't see why this wouldn't be the case if
only
> > the Attribution license was used.
>
> The argument goes like this (corrections welcome if I
get any of this
wrong):
> If they made a CD of recorded music that was licensed
BY, you would be
right.
>
> If they had their own artists cover the BY licensed
tunes, they do not
have to
> keep the BY license for the new copyright they get.
> If they make a derivative of the song (new/changed
lyrics, melody) and
have
> their artists record that, they do not have to license
the new work BY.

uh oh.  So a "cover", where something is
re-recorded cuts the rope to the
originator?  Even though they created the seed idea?  Not
only that but the
conditions of his/her original license for the work? 
Doesn't that render
the BY license slightly impotent?  Afterall, the rules for
sampling in the
commercial world now say any amount of a sample must be
credited/licensed
where it's recognisable.

> > This clip from the
> > legal code for the Attribution license (section
> > 4-Restrictions, part a) says: "You may not
offer or
> > impose any terms on the Work that restrict the
terms
> > of this License or the ability of a recipient of
the
> > Work to exercise the rights granted to that
recipient
> > under the terms of the License.") Doesn't
this mean
> > that the label couldn't impose a standard
copyright on
> > the compilation, or does it only apply to the
> > individual tracks therein?
>
> So, they can't change the license on the work, but they
can for new works.
> Is that clear? Correct?
>
> all the best,
> drew

Surely a "work" should mean any recognisable
element of the work, not the
work in it's entirety?  1 hour, 1 minute, or just 10
seconds.....

Hmm.....

Kev

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On Thursday 03 May 2007 04:34 pm, Kevin Phillips (home)
wrote:
> Hey guys,
>
> [snip]
>
> > > Yes, SA creates space for a competitive
market in lieu
> > > of a structure for royalty payments. If an
RIAA label
> > > sold a compilation of BY-SA music on iTunes
for $9.99,
> > > you'd be free to sell that same compilation
on your
> > > own website for half that amount, thus
gaining a price
> > > advantage. Though arrangements are
copyright-able, the
> > > label couldn't stop you because their
arrangement
> > > would also have to be BY-SA.
> > >
> > > But I don't see why this wouldn't be the case
if only
> > > the Attribution license was used.
> >
> > The argument goes like this (corrections welcome
if I get any of this
>
> wrong):
> > If they made a CD of recorded music that was
licensed BY, you would be
>
> right.
>
> > If they had their own artists cover the BY
licensed tunes, they do not
>
> have to
>
> > keep the BY license for the new copyright they
get.
> > If they make a derivative of the song (new/changed
lyrics, melody) and
>
> have
>
> > their artists record that, they do not have to
license the new work BY.
>
> uh oh.  So a "cover", where something is
re-recorded cuts the rope to the
> originator?  

Well, you are gonna need someone who really knows the law to
answerbut my take 
is a cover gets a new copyright and BY does not stop someone
from changing 
terms on the new copyright. That's what BY-SA is for.

I don't think I have ever had someone answer this for me (or
at least I don't 
remember getting an answer.)

In the US, a cover would get a (P) copyright and not a (C)
copyright. Is that 
right? Wrong?

At that point, the new work could be made All Rights
Reserved. You can't 
change the license on the original work.

I am not sure what you are getting at by "cuts the
rope" though.

> Even though they created the seed idea?  Not only that
but the 
> conditions of his/her original license for the work? 
Doesn't that render
> the BY license slightly impotent?  

Any CC license without SA lets this game be played to some
extent with the 
exception of ND perhaps. Again, I don't know how the (P)
copyright is treated 
and I don't have a clue if other countries make the (P) vs
(C) distinction.

> Afterall, the rules for sampling in the 
> commercial world now say any amount of a sample must be
credited/licensed
> where it's recognisable.

Well, BY would require the crediting. It does stand for
Attribution after all.
>
> > > This clip from the
> > > legal code for the Attribution license
(section
> > > 4-Restrictions, part a) says: "You may
not offer or
> > > impose any terms on the Work that restrict
the terms
> > > of this License or the ability of a recipient
of the
> > > Work to exercise the rights granted to that
recipient
> > > under the terms of the License.")
Doesn't this mean
> > > that the label couldn't impose a standard
copyright on
> > > the compilation, or does it only apply to
the
> > > individual tracks therein?
> >
> > So, they can't change the license on the work, but
they can for new
> > works. Is that clear? Correct?
> >
> > all the best,
> > drew
>
> Surely a "work" should mean any recognisable
element of the work, not the
> work in it's entirety?  1 hour, 1 minute, or just 10
seconds.....

Please note, I am not talking sampling when I say a cover,
but I am not sure 
your thinking holds even in the case of sampling.

Comments by others requested.
>
> Hmm.....
>
> Kev
>

all the best,

drew
-- 
(da idea man)
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----- Original Message -----
From: "drew Roberts" <zotz100jamz.com>
To: "Discussion on the Creative Commons license
drafts"
<cc-licenseslists.ibiblio.org>
Sent: Thursday, May 03, 2007 10:02 PM
Subject: Re: [cc-licenses] Need clarification: What is
"commercial"?

[snip]

*sorry if this is off thread a little but I think it's
important and may
impact on CC licenses*

I appreciate the (c) question was directed sampling, though
remixing can
often obfuscate an original sample, if there's still a
"distinctive pattern
of notes" there could be an infringement.  If it's a
straight cover and
therefore a re-recording then you would imagine it would be
more of a (p)
issue, true.....but.....

> > Surely a "work" should mean any
recognisable element of the work, not
the
> > work in it's entirety?  1 hour, 1 minute, or just
10 seconds.....
>
> Please note, I am not talking sampling when I say a
cover, but I am not
sure
> your thinking holds even in the case of sampling.
>
http://c
reativecommons.org/weblog/entry/3884

"Now, the court did not rule that bands who sample
needn't bother clearing
rights to both recordings and compositions as a general
matter. The court
implies that had the Beastie Boys sampled some more
distinctive pattern of
notes - distinctive not in their recording, but in their
abstract ordering -
or had they taken more of those notes, they would have
violated Newton's
copyright in the composition."

...and more recently...

http://www.mtv.com/news/articles/149
0830/20040908/index.jhtml?headlines=true

"Three judges sitting on the panel of the 6th Circuit
Court of Appeals in
Cincinnati said the same federal laws currently in place to
halt music
piracy will also apply to digital sampling, and explained,
"If you cannot
pirate the whole sound recording, can you 'lift' or 'sample'
something less
than the whole? Our answer to that question is in the
negative."

Yikes!

Kev

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On Thursday 03 May 2007 06:53 pm, Kevin Phillips (home)
wrote:
> ----- Original Message -----
> From: "drew Roberts" <zotz100jamz.com>
> To: "Discussion on the Creative Commons license
drafts"
> <cc-licenseslists.ibiblio.org>
> Sent: Thursday, May 03, 2007 10:02 PM
> Subject: Re: [cc-licenses] Need clarification: What is
"commercial"?
>
snip
>
> http://www.mtv.com/news/articles/1490
830/20040908/index.jhtml?headlines=tru
>e
>
> "Three judges sitting on the panel of the 6th
Circuit Court of Appeals in
> Cincinnati said the same federal laws currently in
place to halt music
> piracy will also apply to digital sampling, and
explained, "If you cannot
> pirate the whole sound recording, can you 'lift' or
'sample' something less
> than the whole? Our answer to that question is in the
negative."

We may be talking about different aspects of this game. I
was lastly 
highlighting the interesting twist that the statutory
license gives as an 
alternative to the CC licenses for non-dramatic musical
works.
>
> Yikes!
>
> Kev

all the best,

drew

-- 
(da idea man)
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> uh oh.  So a "cover", where something is
re-recorded
> cuts the rope to the originator?  Even though they
> created the seed idea?  Not only that but the
> conditions of his/her original license for the work?

Uh, I've been trying to keep up, but seem to have
lost track of which hypothetical scenario you are
talking about here. BY or NC or SA or what?

First, nothing "cuts the rope" to the original
author.
I'm not sure where that came from.

The most "rope cutting" that could happen is
Alice
creates a song, licenses it CC-BY, and Bob comes
along and creates a derivative. Bob can then license
the work however he wants, as long as he attributes
Alice.

That's the thing about any license that is NOT copyleft,
such as CC-SA or GNU-GPL or something: if you license
the work, you can always make the derivative more
restrictive.

If Alice creates a work and licenses it CC-NC.
Bob can create a derivative and license it CC-NC-ND.

If Alice creates a work and licenses it CC-BY,
Bob can create a derivative and license it
All Rights Reserved as long as he maintains attribution.

The one license that doesn't let you change the license
is a copyleft license, and for CC, that's ShareAlike.

Second, CC-BY is a nearly Public Domain license.
If Alice creates a work and licenses it CC-BY,
then Bob can come along, and sell copies of the
CC-BY work, and not pay Alice a cent.
Bob could even create a derivative, attribute Alice,
and license it All Rights Reserved, preventing Alice
from making money off the derivative.

If you're using CC-BY, you're licensing away ALL rights
with teh requiremetn that you get attribution.

Third, ShareAlike is a copyleft license, but it still
gives away commercial rights, which means if Alice
creates a work and licenses it CC-SA, then Bob can
sell it without giving Alice any money.
However, where the difference shows up is that if
Bob creates a derivative, he can't make the license
any more restrictive, meaning that Alice can sell the
derivative just as easily as Bob can sell the original.
Anyone can sell any version of the work.

If you want to invoke some sort of commercial restriction,
the only one to do it is CC-NC. The other licenses,
CC-By, SA, ND, don't have any commercial restrictions,
so they don't prohibit someone from selling the work,
and all the licenses but SA allow someone to license
a derivative more restrictively than the original work
was licensed.

So, if you create a work and license it CC-NC,
then no one can sell it without your permission.
If the work qualifies in some way for a
"compulsory license", then someone could sell the
work and pay you money because the work is still
a normal copyrighted work, it's just got some
rights that have been licensed around. But it still
qualifies for a compulsory license.

Someone could create a cover and pay you the compulsory
license fee. And if they use that approach, then it
falls under whatever rules apply to the compulsory
license laws, and have nothing to do with CC-NC.

Even if you license the work CC-NC-ND-BY, if a
compulsory license law can be applied to the work,
the person can ignore the NC-ND-BY, pay you a
compulsory license fee, and get whatever rights
they get from that piece of law. And they can sell
the work, and not license the new work CC-NC or anything.

You need to think of CC licenses as "in addition
to"
whatever compulsory license laws might apply to the
work, if any. Just like you can license the work
publicly under CC-NC-ND-BY and sell someone a license
to do whatever they want with the work in parallel,
the same can be done with a compulsory license.

IANAL, TINLA, YADA, YADA,
Greg

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On Thursday 03 May 2007 09:31 pm, Greg bond wrote:
> > uh oh.  So a "cover", where something is
re-recorded
> > cuts the rope to the originator?  Even though
they
> > created the seed idea?  Not only that but the
> > conditions of his/her original license for the
work?
>
> Uh, I've been trying to keep up, but seem to have
> lost track of which hypothetical scenario you are
> talking about here. BY or NC or SA or what?
>
snip
>
> So, if you create a work and license it CC-NC,
> then no one can sell it without your permission.
> If the work qualifies in some way for a
> "compulsory license", then someone could sell
the
> work and pay you money because the work is still
> a normal copyrighted work, it's just got some
> rights that have been licensed around. But it still
> qualifies for a compulsory license.
>
> Someone could create a cover and pay you the
compulsory
> license fee. And if they use that approach, then it
> falls under whatever rules apply to the compulsory
> license laws, and have nothing to do with CC-NC.
>
> Even if you license the work CC-NC-ND-BY, if a
> compulsory license law can be applied to the work,
> the person can ignore the NC-ND-BY, pay you a
> compulsory license fee, and get whatever rights
> they get from that piece of law. And they can sell
> the work, and not license the new work CC-NC or
anything.

And like I said, they could do the same thing with a song
licensed BY-SA as 
well right?

One wrinke I just thought of when it comes to trying that
though... If it is a 
BY-SA song several generations old with a big mix of
"authors" then who do 
they pay and what goes on then?

If I made the last derivative, and they chose to pay me (or
if I made the 
original) would I then have to split things with everyone?
Or could everyone 
else sue? Or what? Any ideas?
>
> You need to think of CC licenses as "in addition
to"
> whatever compulsory license laws might apply to the
> work, if any. Just like you can license the work
> publicly under CC-NC-ND-BY and sell someone a license
> to do whatever they want with the work in parallel,
> the same can be done with a compulsory license.
>
> IANAL, TINLA, YADA, YADA,
> Greg
>
Not A Lawyer Here Either. (NALHE)

all the best,

drew

-- 
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> And like I said, they could do the same thing
> with a song licensed BY-SA as well right?

I believe so.

> If it is a BY-SA song several generations old
> with a big mix of "authors" then who do
> they pay and what goes on then?

If the original version is good enough, they could
apply the compulsory license there.

Otherwise, once you get a lot of authors contributing
to a work, there's no easy way to change the license
other than to deal with every author.

Greg
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On Friday 04 May 2007 08:43 am, Greg bond wrote:
> > And like I said, they could do the same thing
> > with a song licensed BY-SA as well right?
>
> I believe so.
>
> > If it is a BY-SA song several generations old
> > with a big mix of "authors" then who do
> > they pay and what goes on then?
>
> If the original version is good enough, they could
> apply the compulsory license there.
>
> Otherwise, once you get a lot of authors contributing
> to a work, there's no easy way to change the license
> other than to deal with every author.

Sure, but is taking out a statutory license changing the
license?

I guess the question might be is, does the law, as it now
exists, presume that 
the last person has already negotiated the needed rights?
Perhaps that is not 
the right question, I am not sure.

I think I have read some funny info on co-authors and
copyright royalies. My 
memory is fuzzy on that now.
>
> Greg

all the best,

drew
-- 
(da idea man)
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