Creative Licensing

[Thad]

Dunno how I missed this story since it apparently went on for several years, a verdict, an appeal, and a settlement; maybe I just saw Eminem's name and glazed over.

But anyway.

You know how when you buy something digitally, there's usually a license agreement stating that you're not buying this [song/book/game/program/etc.], you're just buying a limited license for restricted use of it?

Well, funny story: after the record labels told their customers "It's not a sale, it's a license," they were turning around and telling their artists "It's not a license, it's a sale," so that they wouldn't have to pay them license royalties (which are much, much higher than sale royalties -- 50% vs. 12%, at least in Eminem's case).

Eminem sued his label, a jury determined that the music downloads were sales and not licenses, Eminem appealed, the Ninth Circuit determined that they were licenses and not sales, and they settled out of court, with the label agreeing to pay license fees for any songs that had been sold with license agreements.

Since then, the music and book publishing businesses have largely abandoned the "license" language in their download agreements (though not the software industries, which of course have always had the "it's not ownership, it's a license" theory baked into them, and don't have the "license vs. sale" conundrum in their contracts with developers). But the statute of limitations hasn't run out on the old agreements yet, so now there's a class action against Simon and Schuster on similar grounds.

[zaratustra]

remember when they argued X-Men dolls were not humans in order to pay less taxes

[Yoji]

I heard a bit on KPCC... I want to say This American Life? I don't know, and I'm not ready to spend an hour combing the transcripts.

Anyway, it was about DRM'd cat litter. Like, there's some kind of cat box that sprays some anti-odor stuff on the litter. Real fancy and great, but the cartridge apparently has an RFID chip embedded to track how much solution is left and won't work for anything else. You couldn't even refill it manually since it'd turn itself off based on its own internal check.

It's crap like this and the joy of iTunes that makes me wish we'd go back to physical media. At least then they'd actually have to physically pry it from my hands.

[Thad]

RPG fans irate as D&D tries to shut its “open” game license

Rights and royalties aside, the most controversial part of the new OGL version 1.1 could be its potential effect on the original, decades-old OGL. The new version reportedly calls itself "an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement [emphasis added]."

That wording came as a surprise to many in the community because the original OGL granted "a perpetual, worldwide, royalty-free, nonexclusive license" to the Open Game Content it described. But while that license was explicitly perpetual, the EFF points out that it was not explicitly irrevocable, meaning WotC retained the legal right to cancel the original agreement at any time, as it seems to be attempting with this updated version.

The legal situation is complicated a bit, however, by Section 9 of that original OGL. That clause laid out that creators can "use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License."

In a FAQ posted alongside the original OGL, WotC summarized this section more clearly:

Even if Wizards made a change [to the license] you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there's no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.

Wizards of the Coast Cancels OGL Announcement After Online Ire

According to io9 sources, the new OGL, now known as OGL 2.0, was supposed to go live on Thursday afternoon, along with a detailed FAQ explaining changes and addressing fan concerns.

But when D&D personality Ginny Di tweeted that people should cancel their D&D Beyond subscription in order to send a clear message to Wizards of the Coast regarding what the fanbase thinks of the developments around the Updated OGL, the message was widely shared. A stream of subscribers turning off their payment to D&D Beyond appeared to temporarily shut down the landing page for subscription cancellations because of server errors.

[Thad]

A Bug in Early Creative Commons Licenses Has Enabled a New Breed of Superpredator

The first three versions of the Creative Commons license contained a small, significant oversight, one that now exposes millions of people to effectively unlimited legal risk.

The original version of the CC license stated that the license would “terminate automatically upon any breach.” That meant that if you failed to live up to the license terms in any substantial way, you were no longer a licensed user of the copyrighted work. Any uses you had made of that work were no longer permitted under the license, so unless you had another basis for using it (for example, if your use qualified as “fair use”), then you were now infringing copyright.

Recall that “willful” copyright infringement carries a statutory penalty of $150,000.

These two facts — automatic termination on breach, statutory damages of $150,000 — created the copyleft troll.

[...]

What’s more, the Creative Commons license has a pretty technical— if lightweight — set of administrative requirements that are easy to get wrong. Specifically, all CC licenses (save for the Public Domain dedication) require that users:

• Name the creator (either as identified on the work, or as noted in instructions to downstream users)
• Provide a URL for the work (either as identified on the work, or as noted in instructions to downstream users)
• Name the license
• Provide a URL for the license
• Note whether the work has been modified

Get any of this attribution wrong and you’re potentially a copyright infringer, and looking at $150,000 in damages.

[...]

Take Marco Verch, who may just be the most prolific copyleft troll operating today. Verch hires low-waged photographers overseas to create work-made-for-hire photos of common stock images, often responding to current news hooks (he posted a wealth of stock images of PPE and other medical images during the first wave of the pandemic).

Verch’s images are licensed under CC Attribution 2.0, a license that was produced in 2005 and superceded in 2007. This license application has to be performed manually because Creative Commons no longer offers tools to apply this license to new works. The 2.0 license has the strictest attribution requirements, making it easy to slip up.

Verch uses an automated tool to scour the web for out-of-compliance attribution strings, then he pounces, sending legal threats with demands $250 and up. He says the money this brings in allows him to work a four-hour week and focus on his hobby, running.

(links and formatting not included in copy-paste.)

(And I would add that "copyleft troll" is something of a misnomer, as not all CC licenses are copyleft, but I guess it gets the point across.)

Anyway. The current Creative Commons license, v4, fixes the issue; it removes the immediate termination of the license on infringement and replaces it with a 30-day window in which a licensee can fix the problem and prevent the license from terminating. Of course you can't force people to use the new license, but sites that rely heavily on CC-licensed content can change their terms of service. Doctorow reports that Flickr just changed its rules so that users who abuse old CC licenses and don't offer a 30-day grace period for infringement will be banned; that's going to make it a whole lot harder to continue with the grift. (Doctorow has also suggested requiring every Flickr user to update their license to v4, but that'd be a complicated process and almost certainly end in a bunch of old, inactive accounts getting removed from Flickr along with the grifters.)