[FC-discuss] Enforcing one's entitlements

[Crosbie Fitch]

> From: Steve Foerster
> So if I understand you right, you're applying CC-SA (SA or BY-SA?) to 
> your work, but making it clear that while *you* won't enforce it, it 
> will protect those who makes derivative works downstream?

I'd rather not apply anything to my work. I shouldn't have to.

Unfortunately, the state in its infinite wisdom applies copyright to my work
whether I want it or not - in expectation that I will transfer it to the
publisher of my choice, who given a monopoly over the work is supposedly
thus incentivised to invest in its printing and publication (and granted
permission to seek $200,000 in damages against members of the public for
enjoying their cultural liberty in ignorance of the publisher's monopoly).

Licences restore (or moderate) the liberties suspended by copyright,
unilaterally, contingently, or subject to contract (prearranged, upon
purchase, or upon agreement).

You do not enforce licences, you enforce copyright or contracts.

If no contract has been made (irrespective of whether it is offered as an
option by a licence) then only copyright can be enforced.

The idea of enforcing copyright is anathema to me - and I suggest it should
be anathema to anyone who calls themselves a member of the free culture
movement.

Of course, if a downstream user called Clive needs to represent Alfred, an
upstream copyright holder of a work, in order to defend themselves against
an intermediate user Bill who pretends to have an original work (or Alfred's
licence) and wishes to enforce his copyright to his derivative against
Clive, well, Alfred should be happy to oblige and help Clive. In other words
there are conceivable circumstances in which it may be ethical for one
copyright to be enforced to protect someone against an unethical
enforcement.

If you think there are going to be a lot of litigious Bills out there and
you'd like to protect umpteen unfortunate Clives, then perhaps you should
use the CC-SA.

The problem is, we don't really know whether CC-SA is going to be necessary
or even effective, but yes, the idea is that like the GPL it restores
liberty not just to holders of copies of the work, but also to holders and
creators of ALL derivatives of the work. That means everyone who creates a
derivative of a CC-SA work (even if they ignore the licence) cannot
effectively prosecute anyone for producing copies or derivatives of their
work.

As to SA vs BY-SA, the important thing about attribution is that it should
be truthful, not that there should be an obligation upon all artists to
credit their sources.

Copyright may enable licences to be composed that can compel attribution,
however, I do not believe the failure to attribute one's sources is immoral
unless the truth of attribution is impaired as a result, e.g. implicit
misattribution.

For example, if I sing a song and implicitly or explicitly, whether
deliberately or through inaction, allow the composition to be misattributed
to me, then yes, that is misattribution to be rectified, and if intending to
misattribute (deceive/plagiarise), to be penalised.

However, in all other cases, if I sing a song, I shouldn't be sent off to
the slammer for failing to credit the composer.

The right to truth obliges that truth or accuracy is not impaired in any
attribution. It doesn't oblige attribution. This is the way in which the
right to truth constrains cultural freedom and thus delimits the right to
liberty.

Nevertheless, there may well be etiquette, tradition, or convention
governing attribution and it may well be respectful to attribute sources,
but this is a matter for the individuals concerned and a choice that impacts
their reputations in turn. Failure to credit is not by itself an infraction
of anyone's rights. Taking the credit for someone else's work is.

In any case, it is better to be credited because someone wants to credit
you, rather than because if they don't they'll be prosecuted for copyright
infringement.

This is why I would not endorse CC-BY (or CC-BY-SA).