Fair Use, Public Domain And Creative Commons: They're Not All The Same
from the important-differences dept
Here's the latest excerpt from our Techdirt Book Club selection for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. We're running a bit late with these, and will have one more excerpt next week. If you want to see the first excerpt and the second excerpt, go check them out.Also, Patricia will be joining us for a live Q&A discussion session about the book on Friday, June 8th at 1pm PT/4pm ET. If you have some initial questions, you can post them below or on the Step 2 discussion page, and we'll try to incorporate them into the Q&A.
This particular excerpt discusses the differences between fair use, the public domain and Creative Commons
People who are well aware of how copyright ownership weighs on new creators often confuse fair use with efforts to recover and recreate the public domain, or material not (or no longer) bound by copyright ownership. Sometimes they even think these efforts are in competition. In fact, they are complementary ways to address the same general problem, as David Bollier has noted. Furthermore, enthusiasm for public domain work sometimes leads people to believe that fair use is not as useful as it is. This is because they have been drawn to public domain work by their frustration with copyright ownership restrictions, and have associated all of copyright with copyright ownership. They have not yet become aware of the flexibility and power of the fair use doctrine, and they see one side of copyright as the only side. Sometimes they simply do not have faith that copyright imbalance can be righted.
Creative Commons (CC) is possibly the best-publicized of the efforts to create an artificial public domain to compensate for the badly eroded zone of copyright-free work. It was launched by legal scholar Lawrence Lessig, who indeed was dismissive, even contemptuous, of the potential of fair use to address copyright imbalance. However, CC was not an attempt to supplant or be better than fair use. Rather it was an attempt to solve a different problem: how to allow people to give away or condition their long and strong copyright. CC licenses use the strength of owners’ rights to allow owners the leeway to release their works into an artificial public domain.
So CC creates a zone inside copyright ownership for owners who want to be generous and give their works away. All CC licenses impose some conditions, and some impose more than others. (Some people ignore this; owners of CC licenses sometimes complain that people do not honor the conditions.) This makes CC a copyright-light zone rather than copyright-free zone, and of course it does nothing (and doesn’t pretend to) to loosen long and strong copyright policy—rather, it depends upon it.
A CC license, intended to promote circulation of work, may limit it to the alternative CC world it was born into. This is precisely because it is designed to be an alternative to rather than a feature of the copyrighted environment. Many CC licenses forbid the use of digital rights management (DRM), which is standard to all commercial DVD contracts. Thus, a CC license may kill a distribution deal. Even people who depend upon CC licenses, such as the makers of open educational resources—scholarly materials of all kinds, available free on the web—still sometimes need fair use. That is because most new work refers to existing culture. When that happens, people need to exercise their right of fair use, because most work is not in the copyright-light, fenced-in zone.
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Filed Under: book club, creative commons, fair use, lawrence lessig, public domain
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Who wants a big battle?
Anyone want to try and RIP them from their ownership??
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CC0 ?
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Re: CC0 ?
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DRM restrictions in CC license?
It doesn't seem to me that this ought to prevent inclusion of a CC licensed work on a DVD with the usual DRM, as long as the original unDRMed CC work is also included (e.g. on a separate data track). Are there actual examples of this killing distribution deals?
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Re: DRM restrictions in CC license?
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Re: Re: CC0 ?
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Re: Re: DRM restrictions in CC license?
In any case, CC licenses are non-exclusive, so the DVD publisher could get different terms from the copyright holder/licensor.
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CC and other public licenses do loosen policy
It's worth mentioning that CC0 gets as close as legally possible to a copyright-free zone.
CC licenses only depend on copyright to the extent one views them as not contracts, which is the preferred view, but one Europeans tend to violently disagree with, and more substantially, to the extent one views their conditions as more important than the permissions they carve out. Granted without copyright or similar, those permissions would be superfluous, but in the way a bandage is superfluous if one is not wounded -- great, hardly a critique of the bandage.
Furthermore, only under a narrow and unimaginative interpretation of doing something to influence copyright policy can CC licenses (and other public licenses mostly used for software) be said to be doing nothing. The whole policy environment isn't just the letter of copyright and related law. Public licenses (more directly, projects that use them) are evidence in favor of loosening copyright, and give policymakers easy choices for effectively loosening copyright in specific areas, eg products of public funding by mandating such projects be released under public licenses, as is happening increasingly.
CC licenses are non-exclusive and I'm not sure how they supposedly depend on copyright (see above) but are not a feature of the copyrighted environment.
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Re: Re: CC0 ?
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Re: Re: Re: CC0 ?
True, but legally, "imposing" and "not getting rid of" are essentially the same thing.
I was not trying to rag on CC, in case anyone was wondering. I fully support what they're trying to do. Just pointing out one little inaccuracy in the article. (There are many, but I'm reserving them for another comment.)
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Re: DRM restrictions in CC license?
In fact, the language only states that DRM cannot be used to prevent activities that are allowed in the license itself.
For example: if you released a DVD, encoded with the (required) DRM, you would have to make it explicit that circumventing the DRM would be legal if that circumvention is for the purposes of any activities allowed in the license. In other words, you would have to say explicitly that the DRM could be broken if you're sharing the movie non-commercially.
Whether that holds up in court is another matter. I'm actually not even sure it's legally allowed (in the U.S.) for copyright holders to grant exemptions of the DMCA's anti-circumvention procedures.
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ps
I'm sorry to hear that.
I've interacted with lots of the people involved in CC and the range of opinions on fair use (and other exceptions & limitations; it is a global project) from respect to fangirlism. Personally, I'm for fair use maximalism. :)
Indeed. For reasons similar to those that make most people using public licenses for software oppose software patents, people using public licenses for other works need to demand broader fair use -- otherwise publicly licensed works must be impoverished with workarounds.
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CC misconceptions
For example:
Creative Commons (CC) is possibly the best-publicized of the efforts to create an artificial public domain
This is not even close to what CC was intended to do. By labeling it an "artificial public domain," you're implying that it is without copyright; thus, artists could not e.g. restrict commercial reproduction, or limit derivative works. Of course, this is not remotely true - the vast majority of artists use NC licenses of one degree or another, and quite a few don't allow derivative works (or place limits upon them). This is certainly not placing works in the public domain.
Rather it was an attempt to solve a different problem: how to allow people to give away or condition their long and strong copyright.
Again, this is completely inaccurate. Most CC licenses are not designed for artists to "give away" their copyright. "Condition," perhaps, but they're still pretty strong conditions.
People who put out CC music can still join collection societies like ASCAP or BMI (or Jamendo, which actually collects for their artists). Record labels are still legally required to give them royalties. They are still owed royalties from radio stations. They can still demand money (or outright block) some car company that wants to use their art in a commercial.
Creative Commons is not looking to take away any of the many, many ways artists can exploit revenue streams. The only thing a CC artist can't do is sue ordinary users for sharing their art non-commercially.
By presenting it as an "artificial public domain," you're simply providing ammo for people like George Howard at TuneCore. Considering that TuneCore is usually on the ball about these sorts of things, I'd say getting over this preconception should be of the utmost importance to CC artists.
And considering how this article was primarily about how much the public domain and CC are not the same, I'd say it's a very glaring oversight.
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Re: Re: Re: DRM restrictions in CC license?
Suppose that someone created a commercial movie that incorporated (with proper attribution) several (CC BY)-licensed works in various ways (and let's assume not all of them are fair use). You are saying that they would not be able to commercially distribute their movie in the usual DVD format, not even if they included separate copies of all the CC BY source material? If so, please justify this based on the text of the CC BY agreement.
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Re: Re: Re: Re: CC0 ?
Also, I look forward to the day when someone uses a work under CC0 without attribution and gets sued by the CC0 licensor/affirmer in Europe. Really, it'll be a curiosity.
(And I realize you're not trying to rag on CC, but don't mind if anyone does, and does so well.)
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Re: Re: Re: Re: Re: CC0 ?
If those things are not "inherent in copyright," then the copyright holder has no legal basis to impose it as a condition. For example, you can't legally demand a license for a public domain work.
But that's getting way off track.
I look forward to the day when someone uses a work under CC0 without attribution and gets sued by the CC0 licensor/affirmer in Europe.
Yeah, I don't see that happening either. I just wanted to make it clear what CC actually does.
If someone thinks they can outright plagiarize a CC0 work, then it's up to people like us to set them straight. They may not get sued (and probably shouldn't), but they should at least know what they're doing is not legally allowed. Unfortunately, there's so much misinformation out there about CC, that it's not surprising that these people would be confused.
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Faith? Balance?
I don't need faith to conclude that copyright can be balanced, because it can't and it never was. Copyright is unnecessary, inherently impotent, and detrimental to the arts and education. Through alternative business models, artists can make a living from works that are wholly independent from copyright monopolies. The copyright law flies in the face of the fact that copying is ubiquitous and the existence of this law can never make copying any more difficult than it is today; it actually will only get easier as time goes on. No matter what balance you try to strike between the good of the public and the incentive to authors, it will never be balanced so long as authors can restrict access to works. Every instance where a work cannot be experienced by someone because price was a barrier to accessing it, is a loss for human progress. The more knowledge and culture we can disseminate to the world, the more fit we are to tackle tomorrow's obstacles and expand our understanding of ourselves. There are instances in history that show that a lack of copyright, not the existence of it, actually led to greater prosperity (e.g. Germans became better engineers through freely shared text books for nothing more than the cost of printing). http://owni.eu/2012/03/08/copyright-patent-monopoly-stifle-innovation-falkvinge/
Some would argue that copyright is necessary to encourage authors to create valuable works that can serve to benefit us, but that's just not the case. People have been creating valuable works for centuries without one scrap of copyright protection. If people feel the need for certain expressions to exist or knowledge to be discovered, they will pursue it with or without copyright. They have before and they will again, over and over. YouTube is a strong example of how much effort people are willing to put in without any expectation of compensation. They do it purely for the need and love of it. Why did man invent the wheel? Was it because he could turn a profit (no pun intended)? No, it was because it was needed. As Thomas Edison said, "Necessity is the mother of invention." as it is with creativity too. If it is needed, it will be created. People will express themselves to fulfill a need to express. Culture and knowledge will continue despite the existence or lack of copyright laws.
Copyright really only exists for one purpose; that purpose is to prevent anyone from gaining prosperity the same way the incumbents did, which was making heavy use of other people's works. Copyright is used by the incumbent industry to stop people from utilizing their works as a platform for new works the same way they did to get where they are today. They use up public domain sources to create their content and then they leverage copyright to prevent other entrants from using the incumbents works in the same manner (e.g. Disney's entire library works are either copied wholesale from the public domain or licensed from the original author). It's a tool to control the market and any upstarts that try to compete with the incumbents. Just like Steve Cooksey and his entanglement with North Carolina licensing, these industry regulations are often used to raise the barrier to entry and limit the number of competitors. http://www.techdirt.com/articles/20120529/10203219114/north-carolina-tells-blogger-that-providing-di etary-advice-is-illegal-blogger-tells-nc-to-read-1st-amendment.shtml
So, to sum it up, I find compelling reasons that make me strongly believe that copyright can neither be balanced nor beneficial to society and society's progress would be best served by its extinction.
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Re: Re: Re: CC0 ?
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Re: Faith? Balance?
Let's start at the bottom: What you can "barriers to entry" are really public safety laws. You don't want unqualified people to offer health or medical advice. It's not a barrier to entry, it's common sense. It's the same reason your taxi driver needs a special license, why airplane pilots are trained and licensed, and your doctor spent all that time in school.
It's not a barrier to entry, it's common sense - and for the common good.
"Copyright really only exists for one purpose; that purpose is to prevent anyone from gaining prosperity the same way the incumbents did, which was making heavy use of other people's works"
Do tell! Are you suggesting that individuals and production companies who went into your precious public domain and used characeters and situations written about a hundred or more years ago are somehow blocking your enjoyment of those public domain works?
Are they someone blocking your ability to make new "art"?
Sorry, but your rant comes off mostly as a sorry creed from somone who just isn't very creative, and needs to lean on the actual performances of others to accomplish anything. That's pretty sad.
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What exactly are you trying to "reclaim", except perhaps to reverse the betamax case so that you can lose those fair use rights too.
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Re: Re: Faith? Balance?
"Do tell! Are you suggesting that individuals and production companies who went into your precious public domain and used characeters and situations written about a hundred or more years ago are somehow blocking your enjoyment of those public domain works?"
You're so off base it's not even in the ballpark. This has nothing to do with my enjoyment of the works in question and everything to do with people being able to form new works derived from current works. If you had actually read what I said rather than skimmed it and jump to a false conclusion, you'd realize that. What happens is person A makes use of public domain works and transforms it into new works. Then, person A goes to the government and lobbies to get protectionist laws in place to make sure that person B can never transform person A's works into new works in the same way person A used public domain works to launch their career. In other words, it's okay for person A to copy other people's works and profit from it, but person B best not dream of doing the same with works that person A created, as that would be unconscionable! Disney made heavy use of public domain works and then went to the government to make damn sure that it was illegal for anyone else to utilize Disney material for new works in the same way Disney utilized the public domain. That is what's wrong with copyright, among many other things.
The only thing wrong with my comment was your inability to utilize divergent thinking. By the way, creativity is a process where one uses sum of their knowledge and experiences to transform what they know into a new expression. It is not a latent ability that only an elite few possess; it is a dedication to finding new and innovative perspectives on the world around them and to spend the time to explore those possibilities. Your inability to see the point of my comment makes clear that you yourself lack an inclination to use your creative resources to see the implications inherent in the message.
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DRM on CC-works
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Re: Who wants a big battle?
However, by doing "restored" versions (usually with additional footage), TCM can establish a copyright on the "new" version.
The old, unrestored versions are still out there, and are still PD.
But, who wants a scratchy, badly-spliced version when a restoration is available?
Fritz Lang's Metropolis is a great example of just such a restoration!
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Re:
Sure - and also WAY more copyright than any time in the history of copyright. From opt-in 14 years on books, maps and charts to automatic 100+ years on virtually everything. Yeah fair use has expanded too - just at nowhere near the same rate.
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Re: Re: Re: CC0 ?
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Re: Re: Re: Faith? Balance?
All your A-ing and B-ing comes to the same thing: You can use the public domain work, same as they did. Their NEW work, as well as your NEW work would both be protected by copyright. But it didn't snatch anything out of the public domain. You cannot use Disney work - but you can use the same SOURCE material they did.
Divergent thinking? How do you explain that you cannot understand the difference between a public domain work and a copyright performance or rendering? Can you not understand that a performance recorded today by an orchestra of classical music is copyright - ON THE PERFORMANCE ITSELF, NOT THE WORK.
I see the point of your comment. You are wrong, but I see the point. Learn the difference in the various types of copyright, and you might stop ranting and start moving forward in life.
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Re: Re:
Can you quit lying about this?
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Declare Public Domain
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Re: Re: DRM restrictions in CC license?
I don't have it in front of me at the moment, but I believe this is what the 2600.org folks did when they released Freedom Downtime on DVD. If I remember correctly, the packaging said that you could circumvent the DVD encoding to copy the video for non-commercial purposes. I don't believe they added anything other than the DVD encoding that already existed as part of the authoring process.
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Re: Re: Re: Re: Re: Re: CC0 ?
Exactly why "impose" is the wrong way to think about it. Permissions can be conditioned on things that aren't inherent in copyright. That's exactly what conditions on no DRM, or requiring source revelation (GPL) do.
No attribution does not always equal plagiarism, depends on context. Just to set the record straight. :)
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Re: Re: Re: Re: DRM restrictions in CC license?
from first answer in http://lists.ibiblio.org/pipermail/cc-licenses/attachments/20060908/da9db6a3/attachment.pdf
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Re: Re: Re: Re: Faith? Balance?
What do you call the guy who graduated last in his class in Medical school?
Oh, yeah..."Doctor."
Just because someone graduated from medical school doesn't mean they are any good as a Medical Doctor, nor any other line of work. I agree with Greevar, licensing does not make good Doctors, good Doctors make good Doctors. In my line of work, those who have certifications are actually at a disadvantage, because we tend to look at them and think "that guy is really set in his ways," or "can she think outside of the box when we need her to?" They give out those certifications like candy, and just because someone takes a test doesn't mean they know what they are talking about, especially with the quality of tests for certification (I've had people who wrote whitepapers or the software the certification authority asked a question on refute the question/answer with the authority, and in most cases, the authority says...you may be the expert in the field, but we're always right even when we are wrong.
Licensing does not help public safety...in most cases it makes subjective restrictions on what the person in charge wants for a job, and not the objective of making sure the best person is in the job.
I see the point of your comment. You are wrong, but I see the point. Learn the difference in the various types of copyright, and you might stop ranting and start moving forward in life.
In your opinion (since you never provide facts or proof to back anything up,) he is wrong. However, most of us disagree. Once you give up on copyright and become a human being, you might stop ranting and start moving forward in life too.
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Re: Re: Re:
That's exactly what they did. Prior to 1976, if you didn't register a copyright, it didn't exist; you didn't have any sort of copyright protection on your work at all. It was an "opt-in" system. After 1976, all works are covered by copyright from the moment of creation.
And, just recently, they took material out of the public domain. See Golan v. Holder.
They've also included things under copyright which were not covered before: architectural drawings, hull designs, etc.
And, of course, they've expanded the definition of what constitutes infringement. One of the biggest mistakes that Congress made was criminalizing noncommercial infringement.
So, if fair use has expanded, it's only because it needed to expand.
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Re: Re: Re: DRM restrictions in CC license?
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Re: Re: Re:
Take a look at: History of copyright law. In particular, Copyright did not exist before 1501 (beforehand, authors put curses in their books to prevent copying, which worked about as effectively.) The Statute of Anne is when modern copyright first came into being, and that was limited to 14 years. Over time, the copyright laws have expanded from 14 years to 95 or author's life +70. Also note that Copyright was a series of state laws before the Federal laws expanded it. Originally copyright covered books, maps and charts.
Please, can you spend some time just reading the material available to you freely on line? That way you'll know that Leigh is not lying.
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Re: Re:
What is the USA of copyright holders for HOLDING onto movies that are degrading in vaults. The USA has LOST hundreds if not Thousands of Older videos and audio tracks from the past.
Mostly due to NO CARE/NO UPDATING the material components of their making.
The BBC TRIED to make a Compilation of the 'Dr. Who" series. They had LOST much of the series over the years. They Had to search the World for COPIES. They had lost about 300 episodes. 1960-80's.. IF you can find a LOST copy you could make a small fortune, FROM THE COPY.
The movies and Videos should be PUT TO USE and readily available to ANYONE that wishes to see them..They arnt.
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there are tech advances out there, that will NEVEr be used. mostly because of COPYRIGHTS. including parallel processing for consumers. INTELL wanted to make the 86' series multi- processing in the 90's and MS said NO.. MS dont know HOW to write/create a language to DO multi processing.
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If you really want to express copyright from the past...Every product thats been created with have PENNIES upon pennies Lumped on every thing made.. Every resistor, capacitor, tuner, restrictor from components to FULL circuits. You will be paying an additional $100 for every computer device for less then $1 worth of parts.
Lets go there and see if YOU can afford a country that admits ALL copyrights from every nation, corp, person for the last 100 years.
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Re: Re: Re: Re: DRM restrictions in CC license?
I don't believe the DVD in question had DRM beyond the easily broken DVDCSS which was required by the encoding. I am not sure though. They didn't use any DRM at all on the Freedom Downtime VCR tapes, and I seem to remember some discussion at the time (though I cannot find it with a cursory search now,) on the part from Emmanuel Goldstein about releasing it to DVD and dealing with the DVDCSS encoding as a result. They were happy to have people copy it, and even made the video available to watch online. I had bought two copies of the DVD and one copy of the VCR tape, because I wanted to let folks borrow them, as I often do, and was happy that 2600.org didn't restrict this activity when they released them (I just watched Freedom Downtime not to long ago, and the video is not dated at all...the problems discussed in the documentary are as important now as they were at the time. A good watch for anyone who is interested in the backstory of Kevin Mitnick and the government's prosecution of "cyber terrorists."
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Re: Re: Re: Re: Faith? Balance?
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Re: Re: Re: Re: Re: DRM restrictions in CC license?
But the general issue remains, eg with Blu-Ray.
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Re: Re: Re:
Heh. Hehehehe. Hahahaha!
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What about GATT restoration and scope creep
In the EU, retro-active extensions have actually brought back under copyright a lot of work that were already public domain -- and mostly put that in the hands of publishers, not the original authors.
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Re: Declare Public Domain
In the Netherlands, you can even be forced to pay mechanical reproduction royalties to a collecting society for playing your own self-composed and self-recorded music at a public event.
Probably the best you can do is to follow medieval authors and put a highly potent curse on such behavior.... copyright wasn't written for authors in the first place.
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I'm not sure why this was mentioned. Certainly it's not a complaint limited just to owners of CC licenses! Copyright owners often complain that people do not honor the conditions of their traditional licenses: handing over money (and, increasingly, privacy), to whatever degree the owner demands.
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So CC creates a zone inside copyright ownership for owners who want to be generous and give their works away
Please use the correct term "copyright holder" (or author, producer, etc.) instead of "owner". I own Stargate but I'm not its copyright holder. Using the word "owner" plays right into the hands of the MPAA and their quest to redefine a purchaser as a licensee and infringement as theft.
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Re: Re: Re: Re: Re: Re: CC0 ?
The legal basis comes from the fact that copyrighted works can't be redistributed without permission. The CC license grants this permission. In exchange they can attach whatever conditions they want. If you don't accept the conditions, you have no legal basis for distributing the work and you've then infringed copyright.
For example, you can't legally demand a license for a public domain work.
This is a different case. A public domain work is not restricted by copyright. There's no reason for you to agree to any licensing conditions because you already have all the rights that the license could possibly grant you.
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Fair Use, Public Domain And Creative Commons: They're Not All The Same
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Re:
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hihihihihhihihihihihihihihihiihihihihih
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hihihihihhihihihihihihihihihiihihihihih
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gfg
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TROOOOOOOOOOOOOOOOOOOOOOOOOOOL
Give me a U, "U". Give me a W, "W".Give me a i,"i". Give me a ll, "ll". Give me a D, "d". Give me another i, "i". Give me a E, "E".
What does that spell? U WILL DIE!!!!!!!!!!!!!!!!!!!!
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Re: Re:
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