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March 24, 2005

Comments

Mike Linksvayer

["rights manager" ... the expression of the rights may be unencumbered but the enforcement of your rights might be barred by existing patents...]

CC metadata is not intended to be used for enforcement (and CC licenses thus far contain an anti-DRM clause) AKA management. CC metadata is intended to help people find[1] stuff, not control what can be done with stuff once found. See two CC FAQs[2] on these matters.

With that clarified, I'm afraid that I don't know the answer to your patents question and must add that IANAL, etc.

[1] http://search.creativecommons.org
[2] http://creativecommons.org/weblog/entry/4369

Pete Holiday

Have you emailed Lessig to see if such a thing has been done? He'd probably have a pretty good idea about it.

Doug Cutting

Folks writing software shouldn't be doing patent searches. Just because a patent is on file doesn't mean it's valid. It's not valid until someone sues you and prevails in court. The chances of both in most cases are quite small. And, once you do a search, you're liable for treble damages. I think the more reasonable strategy is to wait until someone threatens a lawsuit then evaluate the situation, rather than pre-emptively search the patent database before writing each line of code. IANAL.

Stephen Downes

A company called ContentGuard claims to have patents over any expression of digital rights encoded in a "formal grammar". This is the basis for their advocacy of XrML (now known as MPEG-REL) and the signing of agreements under a MPEG-LA. See http://www.contentguard.com/patents.asp for the list of patents and http://www.drmwatch.com/drmtech/article.php/3455391 for information on MPEG-LA of REL. ContentGuard is partially owned by Microsoft.

These patents are the basis for an ongoing dispute between ContentGuard and the Open Digital Righst Language (ODRL). Used widely in education, ODRL is also the basis for the Open Mobile Associations (OMA) DRM scheme. Interestingly, OMA signed an MPEG-LA, ths covering themselves.

In my own discussions with ContentGuard what I've determined is that the rights expression language is intended to be free and open - that is, anyone can *encode* rights using it. However, the royalties would be applied to any device that *interpreted* the REL. Hence, royalties would be applied to the manufacturers of commercial products.

It's not clear that ContentGuard's patents are enforcable outside the United States; this has given ODRL leverage, especially in Canada and Europe. So while a U.S. patent may be a commercial liability (given the size of the market) they may be much less so for open source. This appears to be the presumtion on which many open source developers are operating.

My recommendation therefore is to declare in an XML file (such as Atom, though I live mostly in the RSS world - call me a stick in the mud) a *reference* to a copyright or license declaration, rather than to attempt (as many propose) to embed it in the XML (or in the resource itself) as additional XML.

This is the approach that the Dublin Core Metadata Initiative (DCMI) has taken with respect to Creative Commons. DCMI is now in discussions with ODRL regarding a similar approach. Please see http://xml.coverpages.org/Powell-DCMI-ODRL-Discuss.html

By placing a reference to a license into a license (or similar) tag, developers obtain not only greater flexibility (allowing a license to be Creative Commons or ODRL) they buy a measure of protection against the ContentGuard patents. Such a reference could be to any commonly accepted expression, not merely one in a "formal grammar". For example, it could point to a website, the address of which would be sufficient to state the license. Or it could point to a coloured image, where the colors correspond to different license.

-- Stephen

Larry Phillips

As someone speaking from ignorance, I find this discussion absurd. Rights have been granted, managed, and enforced as long as there have been people with enough clout to do so. Giving a patent on the digital expression of a right or the use of digital technology to manage and enforce rights is commercial fraud. Further it is consistent with the use of patents in the US to usurp existing technology and restrain trade.

However, my views on the matter don't diminish the real threat of lawsuits. Right has always been determined by might.

Next, you'll be telling me if I create my own licence similar to a Creative Commons licence, I'll be infringing their copyright. :)

Mike Linksvayer

Larry Phillips: I know you're joking, but others should know that "[Creative Commons does] not assert a copyright in the text of our licenses. Modified versions of our licenses, however, should not be labeled as 'Creative Commons.'" http://creativecommons.org/policies#license

jim winstead

it's exactly this sort of nonsense that moves me to give away as much as i can bear, with no strings attached. i am tremendously gratified when people benefit directly and indirectly from my work, whether i see a dime of money or iota of recognition from it or not. and i am tremendously grateful to those who have provided the same benefit to me.

i was annoyed that flickr wouldn't let me mark my photos as public domain.

Larry Phillips

I came across an article in Karios that might be of interest to people reading this post.

The Unseen "Other "of Intellectual Property Law

http://english.ttu.edu/kairos/3.1/binder2.html?coverweb/ty/kip.html

It comments on the historical roots of intellectual property law and how those roots are ignored in recent policy and court decisions.

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