[There is] a collaborative community that has been around for several years.from this post. It may be counterintuitive (or, come to think of it, maybe this characterizes how people think of lawyers!), but lawyers tend to see issues like this not in terms of whether you can do something, but in terms of the risk involved in doing it. You want to get out of your lease right away without giving the required 2 months notice? You want to fire an employee even though you may not have just cause to do so? Perhaps you'd like to use a popular song as background music on a YouTube video? You might ask a lawyer whether you can do that, or how you can do it, but the lawyer is probably thinking, What is the risk in doing it? What is the likely consequence, and how likely is it? Knowing this about a lawyer's thought process helps explain the anecdotal lawyer's response when asked whether the organization can switch from the FAL to the CC-BY-SA licence. Technically, no, they're not allowed to make that switch. But the lawyer is also thinking, how likely is it that one of the authors involved will treat this as a copyright infringement? And what will the consequences be if they do? Of course every situation has unique considerations, and you shouldn't take this as legal advice for your own similar situation. For what it's worth, in cases like this, I tend to agree with the lawyer in the story, and for this reason: The major aspects of the licences, the issues the authors would have had in mind when they agreed to use the licence, are the same, and are specifically about open licensing. That's what makes cases dealing with open licences different from almost any other legal field in questions like this. These licences are specifically geared toward a new way of dealing with copyright. Yes, there are differences among the licences, and some of those differences are fundamental differences that would make them very risky to switch (like switching an NC licence for a non-NC licence, or vice versa? Just don't do it!). But if there are only minor differences among the licences, then, as the operator of the community in the story, you would need to consider the risk that the sort of person who would license a work under one open licence would bring a copyright claim against you for switching to a different open licence that is the same in all but technical aspects. So we have an author who uses open licences to distribute their work and understands the balance in copyright and the value of other people having access to that work. I suspect that such an author would be much less likely to be upset about a switch to a fundamentally identical licence than, say, a traditional commercial licensor would be if their copyright licence were switched for a different one. Every decision like this is a risk. Just how big a risk it is depends on your particular circumstances. You might need a lawyer's help sorting that out, and you might not. What you should learn from this story isn't the general rule that licences can necessarily be switched for similar licences. Rather, it is that in some cases, with some communities of authors and users, and with sufficiently similar licences, there may be a simple solution that has a low enough risk for you.
They had a couple of separate collections, and one was under the FAL (Free
Art License). They wanted to make everything compatible under CC-BY-SA 3.0,
but the FAL is technically *not* compatible. Then the question was raised with a US-based attorney. His response was not
to worry so much - they're the same in all key ways, and his opinion was
that the intention of the contributors was not concerned with the minor
differences between open, copyleft licenses.
Boffin + Wonk
A journal of internet technology law and policy
Andy is an internet policy advisor with the Government of Canada, with a background in technology law and an interest in how collaborative and social technologies are reshaping industries, governments, societies and the world. See more from me at http://kaplan-myrth.ca.
Unless otherwise noted, photographs, videos and audio files on this website are copyright 2000-2009 in Canada by Andy Kaplan-Myrth. All other content on this website, unless otherwise noted, is licensed under a Creative Commons Licence that allows you to use, reuse and modify this content as long as you give me credit and put your own new work under the same Creative Commons licence.
Get Updates
Subscribe via RSS »One lawyer's thoughts about switching open licences
This story was posted on one of the Creative Commons discussion
lists, and it addresses a problem that at one time or another will
face any organization using Creative Commons licences or any other
copyleft, open or free content licence: Can we switch our works to a
different licence?
Comments (3)
Large corporations are primarily concerned with how to make money out of copyright, and the general public does not usually pay much attention to the subject. Only those who have a specific philosophy about copyright law will care about the technical points.
Leave a comment...