Lawrence Lessig Settles Fair Use Lawsuit Over Phoenix Music Snippets

Liberation Music Will Fix Its Copyright Policies and Pay Compensation

San Francisco - Prof. Lawrence Lessig has settled his lawsuit against an Australian record label over the use of clips of a popular song by the band Phoenix in a lecture that was later posted online. Liberation Music, which represents Phoenix in New Zealand, claimed the clips infringed copyright, demanded YouTube take down the lecture, and then threatened to sue Lessig. Represented by the Electronic Frontier Foundation (EFF) and Jones Day, Lessig fought back, asserting his fair use rights in court.
"Too often, copyright is used as an excuse to silence legitimate speech," said Lessig, who serves as the Roy L. Furman Professor of Law and Leadership at Harvard Law School and director of the Edmond J. Safra Center for Ethics at Harvard University. "I've been fighting against that kind of abuse for many years, and I knew I had to stand up for fair use here as well. Hopefully this lawsuit and this settlement will send a message to copyright owners to adopt fair takedown practices—or face the consequences."
The settlement requires Liberation Music to pay Lessig for the harm it caused. The amount is confidential under the terms of the settlement, but it will be dedicated to supporting EFF's work on open access, a cause of special importance to Lessig's friend, Aaron Swartz, a technologist and activist who took his own life in early 2013. The parties also worked together to improve Liberation Music's methodology for compliance with the requirements of the DMCA in the United States. Going forward, Liberation Music will adopt new policies that respect fair use.
Neither party concedes the claims or defenses of the other. Liberation Music included this statement in the settlement agreement:
"Liberation Music is pleased to amicably resolve its dispute with Professor Lessig. Liberation Music agrees that Professor Lessig's use of the Phoenix song 'Lisztomania' was both fair use under US law and fair dealing under Australian law. Liberation Music will amend its copyright and YouTube policy to ensure that mistakes like this will not happen again. Liberation Music is committed to a new copyright policy that protects its valid copyright interests and respects fair use and dealing."
A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled "Open" at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song "Lisztomania" by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet.
As a condition of the settlement, Liberation Music submitted a declaration explaining its takedown procedures. Liberation Music had allowed a single employee to use YouTube's automatic Content ID system to initiate the takedown process and then, when Lessig challenged the takedown, threaten a lawsuit. The employee, who did not have a legal background, did not actually review Lessig's video before issuing a threat of a lawsuit.
Liberation Music's new policy will still rely on YouTube's system, but it will ensure that no takedown notice is issued without human review, including fair use considerations. Liberation Music will also limit its copyright enforcement to jurisdictions where it actually owns or administers the copyright.
"This is the policy Liberation Music should have had from the beginning," EFF Intellectual Property Director Corynne McSherry said. "Too many content owners are issuing takedowns and manipulating content filters without respect for the rights of users. This fight may be over, but the battle continues until every content owner embraces best practices that protect fair use."

For more on this case:
https://www.eff.org/cases/lawrence-lessig-v-liberation-music

About Prof. Lessig:
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School, director of the Edmond J. Safra Center for Ethics at Harvard University and founder of Rootstrikers, a network of activists leading the fight against government corruption. He has authored numerous books, including The USA is Lesterland, Republic, Lost: How Money Corrupts Our Congress—and a Plan to Stop It, Code and Other Laws of Cyberspace, Free Culture, and Remix.

Contact:
Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Related Cases:

Lawrence Lessig v. Liberation Music

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This post is takenfrom Eff.org and released under a CC by license.

Casserly steps down as CEO of Creative Commons. Now Paul Brest is interim CEO

You might remember the announcement a few months ago that Cathy Casserly will be stepping down as CEO of Creative Commons this year.
In fact, at the beginning of January CC officially opened the search for the new CEO. Today, at the end of February (exactly three years after the entry of Cathy in CC) the CC blog publish a farewell message by her, explaining that Paul Brest, CC board chair, has stepped up as interim CEO.

My journey with CC has had different segments, contexts, and textures. What I have found so rewarding during this leg as CEO is working closely with our deeply talented and dedicated staff, regional coordinators, affiliates, partners, and supporters.
Together, we have made tremendous progress to create a global footprint of sharing, legally. We continue to extend our reach into critical communities – learning, science, data, and culture – and educate the world about the power of open. And while we have not yet reached our collective mission, we have advanced, and will continue to do so. Here at CC, we have worked hard over the past months to ensure the CEO transition is smooth. The board has the search well underway and Paul Brest, CC board chair, has stepped up as interim CEO. My profound thanks to Paul, both personally and on behalf of the broader community, for his unyielding leadership and support.

So the search for the new CEO is still open. We have to wait some more time to know which direction CC will take in the next years.

Honda releases 3D models under CC

This morning, auto manufacturer Honda released 3D data for the exterior designs of several of its concept models under a CC Attribution-NonCommercial (BY-NC) license. From the press release:

With the data downloaded from the website “Honda 3D Design Archives,” Honda’s concept models can easily be replicated by a household 3D printer, which is becoming more popular in recent years. By offering data of its concept models, which embody the spirit of “Honda Design,” Honda offers opportunity to enjoy a simulated experience of Honda’s “art of manufacturing.”

You can view the designs on the new Honda 3D site or download them in STL. Since the designs are licensed under BY-NC, anyone can share, modify, and remix them noncommercially. Now that these designs are in the wild, it will be cool to see who mods them in unexpected and creative ways.

Post by Elliot Harmon, originally published on January 28th, 2014; under a CC by license. See original post.

Wired removed the CC license from the Italian website. Why?

Wired is one of my favourite magazines. I've been a subscriber since it arrived in Italy (actually very late, only in 2009).
The leadership of the Italian magazine since the beginning favored an innovative approach to the copyright issues. In 2010 Riccardo Luna (managing director for the first two years) also published a press release expressly in favor of this choice.
The outcome was that the print edition still was published under an "all rights reserved" copyright, but the website (with the entire blog section) went under a Creative Commons license ("some rights reserved").
In recent weeks, a substantial restyling of the website was completed and suddenly the link to the Creative Commons license has disappeared.
By clicking on the "terms of use" page, we discover that it is only a marginal reference to the CC, referred only to the contents uploaded by users (basically only the comments to the articles). Users who upload content, therefore, must agree to release them with a BY-ND 2.5 license (not clear why a 2.5 version and not a 4.0).
That is not all. In fact, within the terms of use appears a statement that seems to be in conflict with the guidelines on the use of CC licenses.
Come on, Wired! Why are you doing so? You have always been a good example (I remember your wonderful open content music CD). But now...
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Read more on the Italian (and extended) version of the post

Announcing Wikimedia’s New Community-Centered Trademark Policy

The Wikimedia sites are built by a community of volunteers. Today, we finalized a new trademark policy that is specifically tailored to the innovative events and outreach that Wikimedia volunteers conduct to build sites like Wikipedia and its sister projects. The policy was developed through a seven month long consultation with our community of users. It received almost 550 comments and over 340 changes to the policy (you can actually see all changes to the draft in the wiki revision history).

Together, we created a policy that will empower the collaborative community that makes the Wikimedia sites thrive. Focusing on the community, the new policy is unconventional in how it provides expansive use of the Wikimedia marks while maintaining legal protection. It was designed to be clear and easy to understand, with the help of an information design workshop at Stanford Institute of Design. The result of our work is released under a Creative Commons license, so feel free to build on it when designing a policy for your own trademarks. (Just make sure to change the trademarks in the policy!)

The new policy makes it easier for community members to use the marks in the following ways:

• New uses of marks without requesting a license: The new policy contains an intuitive summary listing the many ways community members may use Wikimedia marks without a separate license. It allows community members to use the marks on all Wikimedia sites and even outside the sites to facilitate common activities that advance our mission.
• Clearer explanation of fair use: Our consultations revealed confusion over how to use Wikimedia marks under fair use and whether US fair use laws would apply in countries that do not recognize the same fair use rights. The policy now clearly describes many examples of how Wikimedia marks may be used in, for example, news reporting without additional permission, regardless of where the user resides.
• Streamlined licensing procedures: We are introducing a “Quick license,” which grants community members the ability to quickly start using Wikimedia marks for a photo contest or GLAM event after emailing it to us. No need to wait for approval! Quick licenses are easy to read. They include only the most essential provisions, with a brief explanatory key of each provision.

• Straightforward language: Unlike the policies of many other companies, our new policy uses simple words, short sentences, and straightforward sentence structure to make it easier to follow. We recognize that some readers of the policy may not be native-English speakers, so we avoided using legalese to ensure easy translation into multiple languages. To verify the simplicity of the language, we applied various readability indices and rewrote text flagged as difficult until it had a better readability score.
• User-friendly layout: After considering cutting-edge information design principles, we used icons, color coding, typography, and white space to make the policy both visually appealing and easily accessible. Many community members approved of the design, and felt that, “it’s very approachable and easy to read.” We also included a color-coded summary to provide a brief overview of how to appropriately use the Wikimedia marks.
• Many helpful Frequently Asked Questions: The new FAQ section includes answers to 86 questions, compared to a mere 24 in the 2009 policy. The FAQs are based on issues that commonly arise in our trademark licensing process and questions raised during the policy discussions. In addition, the FAQs are grouped in categories that mirror the trademark policy provisions and are interlinked with relevant provisions to allow easy navigation between the two documents.

The new policy will now be presented for review to the Wikimedia Board of Trustees. If approved, it will replace the existing policy from 2009. The old policy became outdated with the rapid expansion of the Wikimedia projects that introduced new and unanticipated uses for the Wikimedia marks. A table at the end of this blog post shows how the new policy compares to the 2009 policy.

The development of this innovative policy could not have been possible without the hard work and dedication of the Wikimedia community. With their collaborative input, we were able to expand and clarify provisions of the policy to better serve the needs of community members in their work to promote and improve Wikimedia projects. The permissive use of marks is unmatched by the policies of other websites. We sincerely thank community members who participated in the policy discussion for once again making Wikimedia innovators of the online world.

Yana Welinder, Legal Counsel *

Geoff Brigham, General Counsel

* Many thanks to Stephen LaPorte and Manprit Brar for all their work with this blog post and the trademark policy generally. We would also like to thank everyone at WMF who worked hard to make the new policy possible.

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Original source: http://blog.wikimedia.org/2014/01/19/announcing-wikimedias-new-community-centered-trademark-policy/ under a CC BY 3.0 license.
"Trademark-table-01-2014" by Wikimedia Foundation - Yana Welinder, under CC-BY-SA 3.0 Unported, from Wikimedia Commons

Definition of Free Cultural Works

Stable version This is the stable version 1.1 of the definition (take from http://freedomdefined.org/Definition). The version number will be updated as the definition develops. The editable version of the definition can be found at Definition/Unstable. See authoring process for more information, and see translations if you want to contribute a version in another language.

version 1.0

Summary

This document defines "Free Cultural Works" as works or expressions which can be freely studied, applied, copied and/or modified, by anyone, for any purpose. It also describes certain permissible restrictions that respect or protect these essential freedoms. The definition distinguishes between free works, and free licenses which can be used to legally protect the status of a free work. The definition itself is not a license; it is a tool to determine whether a work or license should be considered "free."

Preamble

Social and technological advances make it possible for a growing part of humanity to access, create, modify, publish and distribute various kinds of works - artworks, scientific and educational materials, software, articles - in short: anything that can be represented in digital form. Many communities have formed to exercise those new possibilities and create a wealth of collectively re-usable works.
Most authors, whatever their field of activity, whatever their amateur or professional status, have a genuine interest in favoring an ecosystem where works can be spread, re-used and derived in creative ways. The easier it is to re-use and derive works, the richer our cultures become.
To ensure the graceful functioning of this ecosystem, works of authorship should be free, and by freedom we mean:

• the freedom to use the work and enjoy the benefits of using it
• the freedom to study the work and to apply knowledge acquired from it
• the freedom to make and redistribute copies, in whole or in part, of the information or expression
• the freedom to make changes and improvements, and to distribute derivative works

If authors do not take action, their works are covered by existing copyright laws, which severely limit what others can and cannot do. Authors can make their works free by choosing among a number of legal documents known as licenses. For an author, choosing to put their work under a free license does not mean that they lose all their rights, but it gives to anyone the freedoms listed above.
It is important that any work that claims to be free provides, practically and without any risk, the aforementioned freedoms. This is why we hereafter give a precise definition of freedom for licenses and for works of authorship.

Identifying Free Cultural Works

This is the Definition of Free Cultural Works, and when describing your work, we encourage you to make reference to this definition, as in, "This is a freely licensed work, as explained in the Definition of Free Cultural Works." If you do not like the term "Free Cultural Work," you can use the generic term "Free Content," or refer instead to one of the existing movements that express similar freedoms in more specific contexts. We also encourage you to use the Free Cultural Works logos and buttons, which are in the public domain.
Please be advised that such identification does not actually confer the rights described in this definition; for your work to be truly free, it must use one of the Free Culture Licenses or be in the public domain.
We discourage you to use other terms to identify Free Cultural Works which do not convey a clear definition of freedom, such as "Open Content" and "Open Access." These terms are often used to refer to content which is available under "less restrictive" terms than those of existing copyright laws, or even for works that are just "available on the Web".

Defining Free Culture Licenses

Licenses are legal instruments through which the owner of certain legal rights may transfer these rights to third parties. Free Culture Licenses do not take any rights away -- they are always optional to accept, and if accepted, they grant freedoms which copyright law alone does not provide. When accepted, they never limit or reduce existing exemptions in copyright laws.

Essential freedoms

In order to be recognized as "free" under this definition, a license must grant the following freedoms without limitation:

• The freedom to use and perform the work: The licensee must be allowed to make any use, private or public, of the work. For kinds of works where it is relevant, this freedom should include all derived uses ("related rights") such as performing or interpreting the work. There must be no exception regarding, for example, political or religious considerations.
• The freedom to study the work and apply the information: The licensee must be allowed to examine the work and to use the knowledge gained from the work in any way. The license may not, for example, restrict "reverse engineering".
• The freedom to redistribute copies: Copies may be sold, swapped or given away for free, as part of a larger work, a collection, or independently. There must be no limit on the amount of information that can be copied. There must also not be any limit on who can copy the information or on where the information can be copied.
• The freedom to distribute derivative works: In order to give everyone the ability to improve upon a work, the license must not limit the freedom to distribute a modified version (or, for physical works, a work somehow derived from the original), regardless of the intent and purpose of such modifications. However, some restrictions may be applied to protect these essential freedoms or the attribution of authors (see below).

Permissible restrictions

Not all restrictions on the use or distribution of works impede essential freedoms. In particular, requirements for attribution, for symmetric collaboration (i.e., "copyleft"), and for the protection of essential freedom are considered permissible restrictions.

Defining Free Cultural Works

In order to be considered free, a work must be covered by a Free Culture License, or its legal status must provide the same essential freedoms enumerated above. It is not, however, a sufficient condition. Indeed, a specific work may be non-free in other ways that restrict the essential freedoms. These are the additional conditions in order for a work to be considered free:

• Availability of source data: Where a final work has been obtained through the compilation or processing of a source file or multiple source files, all underlying source data should be available alongside the work itself under the same conditions. This can be the score of a musical composition, the models used in a 3D scene, the data of a scientific publication, the source code of a computer application, or any other such information.
• Use of a free format: For digital files, the format in which the work is made available should not be protected by patents, unless a world-wide, unlimited and irrevocable royalty-free grant is given to make use of the patented technology. While non-free formats may sometimes be used for practical reasons, a free format copy must be available for the work to be considered free.
• No technical restrictions: The work must be available in a form where no technical measures are used to limit the freedoms enumerated above.
• No other restrictions or limitations: The work itself must not be covered by legal restrictions (patents, contracts, etc.) or limitations (such as privacy rights) which would impede the freedoms enumerated above. A work may make use of existing legal exemptions to copyright (in order to cite copyrighted works), though only the portions of it which are unambiguously free constitute a free work.

In other words, whenever the user of a work cannot legally or practically exercise his or her basic freedoms, the work cannot be considered and should not be called "free."

Further reading

• See Licenses for discussion of individual licenses, and whether they meet this definition or not.
• See History for acknowledgments and background on this definition.
• See the FAQ for some questions and answers.
• See Portal:Index for topic-specific pages about free cultural works.
  

Versioning

New versions of this definition shall be released as soon as a consensus (achieved directly or through a vote, as per the authoring process) has developed around suggested changes. Numbering shall be 0.x for initial draft releases, 1.x, 2.x .. for major releases, x.1, x.2 .. for minor releases. A minor release is made when the text is modified in ways which do not have an impact on the scope of existing or hypothetical licenses covered by this definition.

The Italian Constitutional Court experiments an open data approach (with a CC license)

The Digital Agenda reform which ratified for the Italian legislation the idea of ​​open data is starting to bring results and this time it happened to judiciary data.
At the end of March 2013 on the official website of the Constitutional Court an "experimental" open data section (with all the data of the Court are published in XML format) has finally appeared.

The published data include:

• The archive of all the verdicts (about 18 thousand texts from 1956 to present);
• The archive of the maxims;
• The identity records of the Constitutional Judges, with the dates of oath, cessation and a brief biographical note;
• The rules pending before the Constitutional Court.

The online consultation of the Constitutional Court website was already free (free as in "free beer"); but this is obviously a step further, allowing an effective reuse of this mass of information. Effective from a technological point of view, with the availability in standard and interoperable format; and effective from the legal point of view, thanks to the application of an open content license (Creative Commons BY-SA).

Somebody will say: "hey, there is no copyright on verdicts!". Sure, we all agree. But if verdicts are printed on paper and stored in the dusty folders of the courts, how can we make them really open and reusable? Having a digitized entire dataset available is a big step. And remember that in Europe we also have the so complicated database right.
We should greet this decision as an excellent example for all the main Italian courts: the major courts (Court of Cassation and State Council) and maybe also the biggest local courts (Milan, Rome, Naples...).

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Read the Italian version  |  Read the Spanish version 

 

Plaintext versions of Creative Commons 4.0 licenses

We are continuing our practice of providing official plaintext versions of the licenses, as we did with version 3.0.

• BY 4.0 (plaintext)
• BY-SA 4.0 (plaintext)
• BY-NC 4.0 (plaintext)
• BY-NC-SA 4.0 (plaintext)
• BY-ND 4.0 (plaintext)
• BY-NC-ND 4.0 (plaintext)

As said in the previous entry: “For most works, plaintext legalcode doesn’t matter as linking directly to the deeds (say with the copy-paste output you get with the license chooser) is good enough, even ideal. And it’s important to note that the XHTML licenses are still the canonical versions. But for some projects plaintext legalcode may be a very good thing. For example, it is traditional practice in free and open source software projects to bundle your licenses along with your project. More and more FOSS projects are using Creative Commons licenses or CC0 for their non-software content, so having plaintext legalcode will probably be very useful in these instances. Additionally, some other projects which release their content in a way that is largely offline may benefit from plaintext legalcode.”
If you need to mark your work with licensing information in plaintext, here is an example to follow:

<WORK> (c) by <AUTHOR(S)> <WORK> is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
You should have received a copy of the license along with this work. If not, see <http://creativecommons.org/licenses/by-sa/4.0/>.

(The first line in this example is optional.)
For reference, here are the updated examples of how you would annotate your works for the 4.0 licenses.

CC BY 4.0:

<WORK> (c) by <AUTHOR(S)> <WORK> is licensed under a Creative Commons Attribution 4.0 International License.You should have received a copy of the license along with this work. If not, see <http://creativecommons.org/licenses/by/4.0/>.

CC BY-SA 4.0:

<WORK> (c) by <AUTHOR(S)> <WORK> is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
You should have received a copy of the license along with this work. If not, see <http://creativecommons.org/licenses/by-sa/4.0/>.

CC BY-ND 4.0:

<WORK> (c) by <AUTHOR(S)> <WORK> is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.
You should have received a copy of the license along with this work. If not, see <http://creativecommons.org/licenses/by-nd/4.0/>.

CC BY-NC 4.0:

<WORK> (c) by <AUTHOR(S)> <WORK> is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.You should have received a copy of the license along with this work. If not, see <http://creativecommons.org/licenses/by-nc/4.0/>.

CC BY-NC-SA 4.0:

<WORK> (c) by <AUTHOR(S)> <WORK> is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
You should have received a copy of the license along with this work. If not, see <http://creativecommons.org/licenses/by-nc-sa/4.0/>.

CC BY-NC-ND 4.0:

<WORK> (c) by <AUTHOR(S)> <WORK> is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
You should have received a copy of the license along with this work. If not, see <http://creativecommons.org/licenses/by-nc-nd/4.0/>.

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Original source posted by Kat Walsh 7 Jan 2014 and available here under a CC by license.

Lessig thanks Google for the new "labeled for reuse" feature

A brief and effective post by Larry Lessig about the new feature in Google Images. Now we can search images also by reuse rights. Nice! I think this is a positive side effect of the Creative Commons revolution (started just by Lessig).
Now reusers have no excuses for not respecting the licenses of the images published on the web. It is so clear and easy to understand.

Glorious day! Google has launched a simple way to filter Google images by reuse rights. Click the search tools, and select your license. Thank you, Google!
(published on Lessig Blog v2, 14 January 2014)

Open licensing and databases

The English version of my article about open licensing and databases is out. It has been published in Vol 4, No 1 (2012) of International Free and Open Source Software Law Review.

Here you can read the abstract.

Data and databases are a complex, nuanced area within intellectual property law.

In the European Union databases have a special legal treatment that provides two levels of protection. A database is protected by copyright in the classical sense when it can be considered an intellectual work with a creative nature. Where databases represent mere collections of data without sufficient creativity to trigger copyright, EU jurisdictions protect the database under sui generis rights when substantial investment has been made in obtaining, verifying, or presenting the database contents according to Directive 96/9/EC.

This system creates a substantial discrepancy between the situation of European countries and the rest of the world, and also affects those databases that have been released under open licenses.

Not all of the currently available open licenses take account of the legal and practical implications of this discrepancy, and we should examine the consequences and options.

The paper aims to provide a high-level analysis on the protection of databases under European law and identify the main legal problems arising from it in an open data scenario. Then it will focus on the solutions tried so far to implement a proper open licensing framework for the database (with an introduction to the licenses offered by Creative Commons and the Open Data Commons project). Finally, some of the most prominent use cases of open licensing for data will be analysed (such as those of geo-data and linked-data), with some observations on the modus operandi of the various promoters of projects.

If you want to read the entire article, you can find it here: PDF | HTML

Italian version is also available: click here.

...and don't forget to see my diagram about open data legal tools.

On-line education is using a flawed Creative Commons license

Prominent universities are using a nonfree license for their digital educational works. That is bad already, but even worse, the license they are using has a serious inherent problem. When a work is made for doing a practical job, the users must have control over the job, so they need to have control over the work. This applies to software, and to educational works too. For the users to have this control, they need certain freedoms (see gnu.org), and we say the work is "free" (or "libre", to emphasize we are not talking about price). For works that might be useful in commercial contexts, the requisite freedom includes commercial use, redistribution and modification.
Creative Commons publishes six principal licenses. Two are free/libre licenses: the Sharealike license CC-BY-SA is a free/libre license with copyleft, and the Attribution license (CC-BY) is a free/libre license without copyleft. The other four are nonfree, either because they don't allow modification (ND, Noderivs) or because they don't allow commercial use (NC, Nocommercial).
In my view, nonfree licenses that permit sharing are ok for works of art/entertainment, or that present some party's viewpoint (such as this article itself). Those works aren't meant for doing a practical job, so the argument about the users' control does not apply. Thus, I do not object if they are published with the CC-BY-NC-ND license, which allows only noncommercial redistribution of exact copies.
Use of this license for a work does not mean that you can't possibly publish that work commercially or with modifications. The license doesn't give permission for that, but you could ask the copyright holder for permission, perhaps offering a quid pro quo, and you might get it. It isn't automatic, but it isn't impossible.
However, two of the nonfree CC licenses lead to the creation of works that can't in practice be published commercially, because there is no feasible way to ask for permission. These are CC-BY-NC and CC-BY-NC-SA, the two CC licenses that permit modification but not commercial use.
The problem arises because, with the Internet, people can easily (and lawfully) pile one noncommercial modification on another. Over decades this will result in works with contributions from hundreds or even thousands of people.
What happens if you would like to use one of those works commercially? How could you get permission? You'd have to ask all the substantial copyright holders. Some of them might have contributed years before and be impossible to find. Some might have contributed decades before, and might well be dead, but their copyrights won't have died with them. You'd have to find and ask their heirs, supposing it is possible to identify those. In general, it will be impossible to clear copyright on the works that these licenses invite people to make.
This is a form of the well-known "orphan works" problem, except exponentially worse; when combining works that had many contributors, the resulting work can be orphaned many times over before it is born.
To eliminate this problem would require a mechanism that involves asking someone for permission (otherwise the NC condition turns into a nullity), but doesn't require asking all the contributors for permission. It is easy to imagine such mechanisms; the hard part is to convince the community that one such mechanisms is fair and reach a consensus to accept it.
I hope that can be done, but the CC-BY-NC and CC-BY-NC-SA licenses, as they are today, should be avoided.
Unfortunately, one of them is used quite a lot. CC-BY-NC-SA, which allows noncommercial publication of modified versions under the same license, has become the fashion for online educational works. MIT's "Open Courseware" got it stared, and many other schools followed MIT down the wrong path. Whereas in software "open source" means "probably free, but I don't dare talk about it so you'll have to check for yourself," in many online education projects "open" means "nonfree for sure".
Even if the problem with CC-BY-NC-SA and CC-BY-NC is fixed, they still won't be the right way to release educational works meant for doing practical jobs. The users of these works, teachers and students, must have control over the works, and that requires making them free. I urge Creative Commons to state that works meant for practical jobs, including educational resources and reference works as well as software, should be released under free/libre licenses only.
Educators, and all those who wish to contribute to on-line educational works: please do not to let your work be made non-free. Offer your assistance and text to educational works that carry free/libre licenses, preferably copyleft licenses so that all versions of the work must respect teachers' and students' freedom. Then invite educational activities to use and redistribute these works on that freedom-respecting basis, if they will. Together we can make education a domain of freedom.
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an article by Richard M. Stallman (original source published here in September 2012; license: Creative Commons Attribution Noderivs 3.0)
see French Translation