True, but that could be spun in either direction on this, so it doesn't really help figure out (or decide) which interpretation is more likely to be correct - or more likely to hold up in court, for that matter.
I was hoping that there would be a definition of "use" in one of the CC licenses, which is why I went to look at the actual license texts in the first place, but I didn't find any. If there's a definition of that term (in or for anything like this context) elsewhere in the law, or even a standard definition that's used in legal discussions but isn't formally codified by statute or the like, I'd be interested to know about it.
I'd agree that taking that position would be incredibly hypocritical. I can understand the perspective which might lead one to do it a bit, I think - but only in the most subjective of terms, and not as something I could actually support or (in the near-obsolete sense) apologize for.
Then I suspect we're using fundamentally different concepts of the definition of "use". I've looked at a dictionary definition (in pursuit of a candidate "reasonable definition" for further discussion), and I see it as fitting the interpretation I've used, but I'm pretty sure you'd look at the same definition and see it as ruling that interpretation out. (For reference, it was the one from gcide.)
From my perspective, having once acquired something, you can use it and keep it, or use it and sell it, or sell it without using it, or return it unused (which is actually required - albeit obliquely, by requiring "unopened packaging" - by many stores' return policies for at least some types of product), or any similar combination - but selling it, per se, does not and cannot constitute using it.
I could point to the distinction between a "bookstore" and a "used-book store", which would make no sense if selling a book constituted using that book - but I suspect that that would be legitimately dismissed as semantic twaddle. I don't have a better way of trying to convey why I draw that distinction offhand, though.
Depending on the framing, that might be enough to qualify. If you're selling the framed print specifically, and possibly also if the framing (and/or the printing medium, et cetera) isn't just an unremarkable off-the-shelf thing (however subjective that might be) but is something that you're actually doing yourself - creative work, in whatever sense - then that might be a leg to stand on in this regard; what you're selling in that case isn't the picture, it's the frame and the work of framing the picture, and the picture is relevant only as the backdrop and reason-to-care-about-this for the frame.
If Flickr had presented this as "We're selling beautiful, museum-quality frames for pictures we host, and we'll even do museum-quality prints to match the frames!", with the focus on the frames rather than on the pictures, then this might be a reasonable angle to take - although it would probably also have attracted a lot less potential purchaser interest. As far as I can see, however, that's not what they did; their original article on this (or at least its current version, I don't know if they've edited it) presents the pictures front-and-center, refers to the frames only briefly near the bottom in the section which mentions prices, and does not seem to show any of the frames at all.
Now, I'll acknowledge that this is starting to seem a bit arbitrary and hairsplitting; that's almost inevitable when dealing with the edge cases, which is where controversy is going to arise anyway. I do, however, think that the underlying concept is both valuable (or at least worthwhile) and sound.
Yes, it would allow selling all of those things; those things were made using the picture, they are not the picture itself.
If indeed there are few if any people who would be OK with those uses but not with selling prints, then that's fine; it just means that I was on the wrong track with my original suggestion.
But my original suggestion was made as a way to resolve the apparent contradiction between people having chosen a CC license which allows commercial use and still being upset over this. I interpret that as indicating that those people do, in fact, fall into that category which you described as "mostly-theoretical" - and thus, I infer that such a license would be a solution to the problem at hand, and would be what those people thought they were choosing in the first place.
It's possible that the people who are upset about this either chose the wrong license (i.e., would indeed have preferred to prohibit all commercial use of their images) or are, in fact, just being hypocritical. I simply prefer to give them the benefit of the doubt.
It doesn't seem reasonable to me. "Commercial use" is an obviously broad term, and clearly means "use in furtherance of commercial activity". What seems obvious to me is that the term would include simple resale of the work.
Resale is certainly commercial, yes; that's not in dispute.
What I disagree with is the idea that resale qualifies as use. Someone who simply sells something is not thereby using that thing.
Incorporating it into something, or modifying it in some way, would be forms of use; there might be others I'm not thinking of off the top of my head.
But simply selling it on, untouched, is not a form of use.
And if it's not a form of use, then it cannot be "use in furtherance of commercial activity".
I've glanced at a couple of the CC licences now (CC-BY-SA and CC-BY-NC-SA), and at that glance, it doesn't look like "use" is defined anywhere in the license text - although, in the Non-Commercial license, "Non-Commercial" is. Actually, the word "commercial" does not appear at all in CC-BY-SA as far as I can see...
Perhaps the real issue is that people either don't read these licenses before selecting one, or that they don't understand that contracts (licenses are a kind of contract) mean what the words in them say, not what the people using them would prefer that they say.
I think this is mostly correct, yes. While I disagree about the meaning of the term "use" as relates to sales, it doesn't look like that term is actually used in any relevant sense in the CC-BY-SA license text, and the up-front definition of what that license grants permission to do does seem to clearly allow what Flickr is doing - clearly enough that anyone who actually read the license could have understood that it would mean that.
Of course, many people probably did read only the "license deed" overview-and-summary page when selecting a license, rather than read the "legal code" legalese itself. (Isn't that the entire purpose of that overview-and-summary form - to let people understand the license without having to read the full legalese license text?) So they may well not have been exposed to that clear statement in the first place.
No - he explicitly told Flickr (and everyone else) that it's okay to make commercial use of his photos.
Selling something is not the same as using it.
This whole flap is, fundamentally, a disagreement about what "commercial" vs. "non-commercial" in the CC licenses means. I haven't read any of them recently enough to see if those terms are explicitly defined anywhere, and if so on which side of the disagreement those definitions would fall; however, the interpretation which says that "commercial use" does not cover simple sale-without-modification does seem like a reasonable one, and one which many people might have intended in choosing a license without the NC element.
I ordinarily agree strongly with your posts and arguments, and you're mostly right in this one as well, but you've got one thing wrong:
The Wanderer has it nailed down. MOST people view the license as "You can use my work, but you can't sell my work" because there is no CC license to cover this limitation.
Yes, of course there is. In fact, there are many.
All you have to do is release your works under one of the Non-Commercial licenses (CC-BY-NC, CC-BY-NC-ND, CC BY-NC-SA).
That does not cover the limitation which was being referred to.
The CC Non-Commercial licenses allow using the work in a non-commercial context, but disallow selling the work.
They do not allow using the work in both commercial and non-commercial contexts, but disallow selling the work.
E.g., someone might reasonably say "I don't mind if you use this picture to illustrate a magazine article, or even as the cover of the magazine - but you can't just take the picture and sell it as a picture.". I.e., requiring some transformative use in order for commercial use to be preemptively authorized - which seems very much in line with the idea of encouraging further creativity, which is (as far as I understand) what the Creative Commons are supposed to be about.
As far as I'm aware, there is no CC license which permits making that distinction between commercial use and simple sale - but it seems to me that that distinction is one worth making, or at the very least, one which many artists and other creators might want to make.
If I'm wrong, and there is such a license, I'd be glad to be corrected on that point.
I can see reason for people to object despite this.
I can easily envision a photographer being willing to let other people freely use their work in something which is for commercial purposes, but not to let other people sell their work directly. What (CC) license is such a person supposed to have chosen?
"Censorship", in its basic sense, is simply the attempt to prevent some (particular) audience from being exposed to some (particular) information.
If government or other authoritarian involvement were essential to the concept of censorship, "self-censorship" would not be a stock phrase, because the concept would be a contradiction in terms when done by anything but a government entity.
The distinction between censorship and "just being selective" is that someone being selective just chooses what information they themselves will present, whereas someone engaging in censorship attempts to restrict what other people can present.
Sometimes these can overlap; for example, the editors of a newspaper who choose which Letters to the Editor to publish are certainly being selective, but may also be engaging in censorship if they make that choice based on wanting to keep their readers from being exposed to the information in some of the letters. But the distinction is still important.
(None of what happens in Techdirt comments seems to be censorship to my eye, for the record. Unless there are posts actually being deleted, which I'm fairly sure is not the case.)
Unfortunately, there are incentives against that, if the bill to which the provisions are attached contains important/critical/time-sensitive things which are hard - or even impossible - to justify rejecting.
Which is why I would support various measures (too many and too long to list off here) aimed at restricting the breadth of a given bill and at making sure that the legislators have no excuse for not knowing exactly what they're voting on. But getting that implemented would be more of an up-cliff than even an uphill battle.
(The other "solution" to such unrelated-provisions legislation would be the line-item veto, in some form - whether by the executive in signing, or by members of the legislative voting in for or against. But that A: just moves the problem and B: in the executive case is plausibly argued to be unconstitutional.)
Anyone else find it amusing that 0.5 Mbps (512 Kbps, or 64 KB/s) is considered the minimum speed necessary for Web browsing and E-mail, when for so many years the top speed available (without paying ridiculous premiums) was ~53KB/s?
Not that it isn't necessarily a reasonable minimum nowadays - but if it is, that says something unfortunate about the footprint of modern Websites... to say nothing of what people think of as reasonable in E-mail nowadays.
While untrue statements are in fact compatible with (and may even be necessary for) defamation, you left out the critical word: "clearly".
"Clearly untrue" statements cannot be defamatory, because one of the components of defamation is likelihood that someone will think the defamatory statement is the truth. If it is clear that a statement is not true, then by definition, the statement cannot be defamatory.
Actually, as I understand matters, "probable cause" in the original context appears to have referred to "probable cause to believe that the thing being searched for is in the place to be searched" - where "probable" is contrasted with "plausible" or "possible" or even "improbable", any of which would leave much more room for random or punitive searches.
It had nothing to do with "threats to public safety" or "crime in progress" or similar - only with the likelihood, and (by way of determining that) believability, of the idea that the search being carried out would find the thing being searched for. If you can't convince the person whose responsibility it is to make such judgments that it's probable that the thing is where you say it is, you don't get to search for it there.
That gets lost to some degree under the common-parlance jargon use of the phrase, but I believe it's still of critical importance in understanding how the idea of probable cause should be applied.
On the one hand, yes, having the job be done only by people who don't care about the negative aspects of what they're doing would be a bad thing.
On the other hand, it would mean that people could despise, ostracise, and otherwise socially abuse TSA employees with a clear conscience - thereby giving the remaining employees a different type of disincentive to continue working there.
I think there's a case to be made that that could be worth the trade-off. Although there is still the difficulty that there's no way to be certain that the state where only "the bad people" still work there has yet been achieved, so it wouldn't be possible to be entirely certain about that clarity of conscience after all.
These two tests represent, and possibly exemplify, two essential basic questions which should be asked of any patent application, under and below (as contrasted with "over and above") questions like prior art:
* "Could a person skilled in the art reproduce the invention based on the description in the full patent? If no, the patent application must be rejected."
* "Could a person skilled in the art reproduce the invention based on the description in the abstract of the patent? If yes, the patent application should be rejected."
The rest of the details of my proposal are mostly a way to define how to determine whether a person skilled in the art could reproduce the invention with the given information. Even if you don't go as far as finding such people and having them actually do it, however, I think it could still be useful to explicitly codify these questions as rules in the patent-application-handling process.
(Note also the difference in the use of "must" vs. "should" in the two tests. I included that difference intentionally, because there are some corner cases where it could potentially make sense to grant a patent application even when the second test might fail, and I wanted to leave room for that in the details.)
That's part of why I said it's logistically impractical and would be prohibitively expensive in practice.
I still think it's a useful line to start on, though - almost a thought experiment; it serves to help frame the problem in the right way, and point out what things actually need to be addressed, even if it isn't practical as a way of addressing those things by itself.
There are a number of other corner cases and loopholes and so forth as well, which would have to be addressed by any fully-detailed proposal in this direction, but I figured the version I gave is legalistic enough that I'm risking people not bothering to read it even as is. A more detailed legalese version is percolating in the back of my head; I've gone over three or four main variants on it so far already.
That would only address a small part of the problem.
What about patent applications which do provide implementation details, but not enough of them, so that you can't actually implement the patented thing just based on the information in the patent? It's not always going to be obvious what is and is not "enough", unless you are in fact "a person skilled in the art" - which, for any given field, most patent examiners are not.
What about patent applications which are for something which would be obvious to anyone in the field who bothered to work on the problem?
There are many categories of possible reasons why a patent application can be bad. My proposed pair of tests wouldn't address all of them, but I think it would address most of them, including particularly the ones which are not being properly addressed under the current approach. Your proposed test (in addition to lacking detail by which to judge what is and is not "only an idea") seems to me as if it would only address one or two of them, at most.
I realize it's logistically impractical, would be prohibitively expensive in practice, and would just lead to massive delays in the processing of patent applications, but I've been contemplating two basic tests which I might want to argue should be applied to any patent application.
There are longer and more legalistic ways to describe them - to fill in details, eliminate loopholes, address corner cases, and avoid unintended consequences - but the basic outline is:
* Find a "person skilled in the art".
* Give that person access to the entire patent application.
* Ask that person to reproduce the invention, based on the description in the patent application.
If they do not succeed, then the patent application does not adequately describe the invention in question, and must be rejected - because it does not fulfill the purpose for which patents exist in the first place: enabling other people to reproduce the invention.
* Find another "person skilled in the art".
* Give that person access to only the summary / abstract of the patent application - the part which describes what the thing to be patented does, but not any of the details of how it does it.
* Ask that person to create something which does what is described in that summary text.
If they succeed, and what they create is close enough to the claims of the full patent application that it would be likely to be considered infringing, then the patent application covers something which is "obvious" to a person skilled in the art - and so should be rejected.
There are still other reasons why a patent application should potentially be rejected - prior art, for example, though the second test covers that to some degree if we assume that a "person skilled in the art" would probably be familiar with most such - but it seems to me that that would address the vast majority of bad patent applications.