Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Postby Wuzzy » 20 Sep 2015, 00:28

I have put some thought into Creative Commons licenses, and that there are some licenses where it would be pretty easily possible to effectively “defeat” licenses without the ShareAlike clause. The idea is to distribute a work which was published under a non-ShareAlice CC license without being bound to the terms.

Important:
This is just a purely hypothetical thought experiment of mine and NOT legal advice or endorsement of something.

I have no clue on the legal implications, so take everything what I say with many, many grains of salt. ;) I am not a lawyer. :P

That having said:

I believe these licenses can be “killed”:

  • CC BY
  • CC BY-ND
  • CC BY-NC
  • CC BY-NC-ND

(Reminder: See https://creativecommons.org/licenses/ for a full list)

I have actually read the license texts, but only version 4.0 (I did not check earlier versions).

The main motivation is to get rid of the BY, ND and NC clauses.

Note that all these licenses do not have a “share-alike” clause. In other words, as long as you abide the original license, you can just slap a different license on it, right?
My idea is that this means, as long as you use your copy under the conditions of the license, you can release your copy under whatever license you like, and then only using this copy for your actual work.

Of course, the detail lies in the devil, so here's the (hypothetical, untested) way on how to “kill” the licenses:

The Double Copy
  • Copy and publish the work in question somewhere (let's call it “Original”) in the Internet. Let's call this copy “Copy 1”. Make a verbatim copy, regardless of the license. It should *not* be published on the publication platform you would normally prefer. I would say your position might be better later if the publication platform is not THAT obscure.
  • Make sure that you perfectly abide by the license of Original. So, attribute properly and if NC is in place, make EXTRA sure there is no doubt that Copy 1 was released as private. So, no ads, don't earn money with it, etc. Note that NC may be very fishy in some jurisdictions, so be careful with that one. (see also here)
  • Now comes the “kill”: You publish Copy 1 under a *new* license without the restrictions. In the new license, you can get rid of NC, ND and BY clauses. I suppose WTFPL would be a possible license.
  • Make sure that you don't apply any additional restrictions to forbid something which the Original license would forbid. Taking away restrictions, however, seems fine (which was the point all along :)). This needed to comply with the clause called “No downstream restrictions” (usually sections 2(a)(5)(B) or 2(a)(5)(C) in CC 4.0).
  • Now you copy *your copy* again and publish it again somewhere else (Copy 2), this time on your preferred publication platform and *without* being bound the restrictions of Original. Now you only have to abide by the license you have chosen for Copy 1.

In theory (!) you are now free to do with Copy 2 whatever you want.
The original license is not actually “killed”, since it still holds true for Original. The trick is to make the restrictions meaningless by using copies to change the license.
If anyone claims copyright infringement, you can now defend yourselves by stating that Copy 2 is based on Copy 1, rather than on Original, so the rights you got from Copy 1. As far I know, the rights granted with a CC license are irrevokable. :P

If this would be actually legal (I am not sure at all.), the implications would be very interesting:
  • 4 out of 6 (!) CC licenses, version 4.0 (!) can be defeated by this
  • BOTH ND licenses do NOT prevent the actual distribution of derivative works because they don't apply to Copy 2. I have read those licenses and have not found anything which sounded like ShareAlike
  • For the same reason, 2 out of 3 NonCommercial licenses can be defeated
  • And finally, 4 out of 6 Attribution licenses can be defeated. Well, the author is still attributed, but not always so.
  • The two ShareAlike licenses, CC BY-SA and CC BY-NC-SA are immune to The Double Copy because of their ShareAlike clause

But I have no idea if anything of what I have written is actually true. I have no clue how it would work out in real life. I have no idea what would happen. I don't know if it is actually legal, etc.

What do you say about this?
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Re: Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Postby onpon4 » 20 Sep 2015, 01:15

You seem to be assuming that finding a copy of something that doesn't carry a license means you can do whatever you want with it. This is the opposite of the truth. Copyright, by default, restricts any distribution of the copyrighted work. If a work is published under CC BY-NC, it is only because of that license that anyone other than the copyright holder can publish it at all. So in the scheme you describe, all you serve to do is argue that you didn't have a right to distribute copies to begin with.

There isn't a simple way to prevent copyright from having force. All you can do is convince the copyright holder to permit the work's distribution under a libre license.
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Re: Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Postby Julius » 20 Sep 2015, 03:44

Yeah, I also can't follow your argument. Sure, sub-licensing is possible, but only as long as it can also be used under the original terms and none of the original license requirements are lost.

Edit: that part is rather the SA part.
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Re: Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Postby Akien » 20 Sep 2015, 08:24

The lack of ShareAlike does not mean that you can just ignore the original license when doing derivative works. It means that you can license your derivative work however you want, but you still *have* to comply with the original license at the same time. So you can make your derivative work proprietary, but if it was CC BY, you *have to* credit the original author somewhere.
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Re: Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Postby Wuzzy » 20 Sep 2015, 12:28

I don't think you really understand what I said. Please read it again.

First of all, this was never about removing licenses or having no license in the first place. It was more about re-licensing (or however you may call it).

And Akien, no, this was not my point. Copy 1 is not a derivative work, because I defined it as a verbatim copy of Original. Also I said that Copy 1 must obey the license of Original. So no violation there. You did not say anything about Copy 2.

Maybe I should rewrite Double Copy in simpler terms (no replacement for what I have written in first post):
  • Copy Original verbatim somewhere and obey the license (important: one of the 4 CC licenses listed in 1st post) of Original → results in Copy 1
  • Copy Copy 1 somewhere else and apply your own license to it (IMHO possible because no ShareAlike), it should be less restrictive → results in Copy 2
  • With Copy 2 you now only have to obey the license of Copy 1 (at least in theory), which may now have no NC, BY and ND.

I wonder:
  • Is step 2 legal?
  • Is step 3 true?
  • When someone uses Copy 2, does that someone then have to obey both the license of the Original and copy 2? (It seems this is what Akien is implying.)

Perhaps it makes it even simpler if you give you a hypothetical example:
  • Bob makes a video, let's call it Original. And he licenses it as CC BY 4.0 (let's keep it simple for now).
  • Alice copies the Original and calls her copy Copy 1. She gives attribution and obeys the other small bits of CC BY 4.0. She then licenses the copy under WTFPL.
  • Alice then copies Copy 1 and calls her copy Copy 2. The license of Copy 1 is kept for Copy 2, so it's WTFPL.
  • Then Peter comes and uses Copy 2 but this time without attribution, the reasoning is that Copy 2 is under WTFPL.

Questions: Is what Alice does legal? Is what Peter does legal? Would the legality be different if in the 4th step not Peter, but Alice uses Copy 2?
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Re: Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Postby Akien » 20 Sep 2015, 13:23

It's certainly not legal, else all CC licenses would be pointless, and I believe they consulted lawyers to write them.
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Re: Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Postby andrewj » 20 Sep 2015, 14:30

Wuzzy {l Wrote}:I have no clue on the legal implications..... I am not a lawyer.


Well put, I agree with you there.
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Re: Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Postby Julius » 20 Sep 2015, 15:23

What makes you think, as by your example, that Alice has the right to relicense the copy to the less restrictive WTFPL?

The CC-by license explicitly states that you can only redistribute if you keep the attribution (and some anti-DRM measures by the way). As it isn't SA, you may relicense the work with your changes under a more restrictive license, but you may never remove the attribution requirement or else your right to redistribute immediately become void as you are violating the license.
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Re: Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Postby onpon4 » 20 Sep 2015, 19:15

To expand on what Julius said, you need to understand that you cannot apply a new copyright license to something which you don't hold the copyright for, unless you have been granted permission to do so by a license. This is how copyleft works; you can't just decide to relicense someone else's work under the GNU GPL to the X11 license. You can only distribute the work following the terms of the GNU GPL, and the GNU GPL has specific requirements you must meet which, in this case, include providing source code, including a copy of the license, and not adding additional restrictions.

CC BY-NC doesn't forbid adding additional restrictions, so if you make a derivative work, you can put more restrictive terms on it, like CC BY-NC-ND, or no license at all. But the license does contain restrictions: you must provide attribution, and you must not use the work commercially. These conditions always apply, unless the copyright holder of the work grants permission to distribute it under other terms. You can never take away restrictions unless you hold the entirety of the copyright to the work, or the license explicitly permits you to do so (such as in the case of "additional restrictions" as defined by version 3 of the GNU GPL). All you can do is add restrictions, to the extent of copyright's maximum restriction potential.
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Re: Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Postby Wuzzy » 21 Sep 2015, 07:15

This is how copyleft works

I specifically chose licenses which are NOT copyleft, so I am confused why you bring this up.

As it isn't SA, you may relicense the work with your changes under a more restrictive license,

CC BY-NC doesn't forbid adding additional restrictions.

So how do you explain this?:

2(a)(5)(B):
No downstream restrictions. You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material.

https://creativecommons.org/licenses/by ... /legalcode

What makes you think, as by your example, that Alice has the right to relicense the copy to the less restrictive WTFPL?

Because there is no ShareAlike clause. AFAIK the point of this clause is to prevent the changing of the license for too much.


I am not exactly sure if your answers really helped me, sorry.
It would be easier to understand for me if you had answered my previous questions directly. :( It is not exactly an easy matter IMO. Please answer my previous questions (if you can).

So basically, what you're saying is: Alice's relicensing of Copy 1 to WTFPL is already null and void, so anyone using Copy 1 is actually bound to CC BY?
Or may Alice relicense it, but everyone is still bound to the Original license, so actually one has to obey 2 licenses when using Copy 2?

Well, this is getting confusing now. First, I guess you are saying that restrictions can't be taken away this way. And 2(a)(5)(B) forbids adding and new restrictions.
Would that mean that non-ShareAlike licenses do not permit changing the license at all, but ShareAlike licenses do allow so (for a small set of allowed licenses)? That would mean that ShareAlike is actually more liberal than non-ShareAlike. Huh?? o_O

Also, what license transformations would be permitted from the non SA licenses, then?
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Re: Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Postby Julius » 21 Sep 2015, 12:08

Ahh, now I get where your confusion comes from.

First of all, "Alice" can absolutely not relicense the work to a less restrictive license. I think the correct term here is "sub-license", meaning if you make modifications to it you may add additional restrictions as long as you stick to the original terms also.
Only the SA option makes sure that one is not allowed to further restrict the "freedom" of a artwork (aka the "copyleft" concept).

The quote from the license you took actually does not refer to sub-licensing at all, but rather to the use of the originally licensed work. It is the somewhat controversial "Anti-DRM" clause in the CC licenses, that was introduced to combat DRM and stuff like Tivoization ( https://en.wikipedia.org/wiki/Tivoization ).
This part is a bit special, as it is a very target specific (and weak) copyleft component of the CC-by licenses (regardless of SA or not), that has led to much confusion and for example the creation of the OGA-by license that is the exact same as CC-by with only that above paragraph removed (the reason for this is that CC-by artwork for example can not be used in combination with the iOS DRM app-store system).

So in your example, it basically states: yes you can sub-license it to more restrictive terms, so long as you still give credit and do not lock down the content with a DRM system... So there is still no legal way Alice could declare the content to be WTFPL.

P.S.: IANAL :p

Edit:
Sublicensing is a bit of a unclear area anyways. For example in most countries you can not just claim additional copyright by changing a single pixel only, or altering the color hue of a picture. If you thus simply redistribute a work (with insignificant modifications), anyone can still use it under the original license terms and in the case of the CC-by you may not prevent this use through technical means like DRM.
What you may do though is create a collection of works, and in total give it a different license. However this license must be a sub-set of all the different licenses included in the set, i.e. it must follow all individual license restrictions. Edit2: People may still extract the individual work though and use it under the original terms.
You can also significantly alter the work (but only because the CC-by explicitly allows you to), and in that case you gain something like "co-copyright" which allows you to relicense the work, but again only to a more restrictive version as you may not remove any of the original license terms. However someone else can also not use it under the original conditions as in the first example, as that would be in violation of your "co-copyright" so they have to follow the more restrictive license for the full work as by your specifications.
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Re: Defeating CC BY, CC BY-ND, CC BY-NC and CC BY-NC-ND

Postby brmbrmcar » 23 Aug 2016, 09:50

You can only go more restrictive, not less.
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