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Better to Beg Forgiveness

pluralistic.net

52 pointshn_acker17 comments

> Without CC, we wouldn't have Wikipedia

This was interesting overall, but since Wikipedia existed for years under GFDL, this sentence is extremely dubious. Wikipedia would probably exist in some form if it hadn't switched licencing. It's not like the Creative Commons people, as much credit as they do deserve, were the _only_ people thinking and trying to address the issues posed.

In my career as a wage slave, I learned to never ask a lawyer for permission, as the answer was invariably "No" (unless one of the C-suiters asked, then the lawyer would bend over backwards to say "yes.").

But if my risk manifested, I was on the gibbet. Ask forgiveness, but don't expect mercy, if you really screw the pooch.

I totally got yeses all the time, or don't worry about it, but generally when it had to do with are we allowed to do this under GDPR or similar things.

There are different ways to ask.

"Can I do X" - yeah that's likely gonna get a no if there's any ambiguity or question about it.

"The VP wants me to do X, what do I need to know" - probably a much more nuanced response. "Someone could make an argument that xyz violates abc, but there's also a counterargument that in this case..." (And put this question writing since it should (a) be privileged anyway - though you should check with legal first re: how they want you to indicate that, if at all and (b) it adds some paper trail if you need to escalate or if the decision is made to do something that later blows up.)

"Anyone who claims you can answer fair use controversies by running through the four factors as though they were a checklist really doesn't understand fair use"

I agree, but the problem I see far more often is the people who claim something is "fair use" without considering any of those four criteria, for which the four-question analysis returns a clear "no" for all four questions. Or "unclear but trending no".

The internet at large defines "fair use" as "I want to be able to do that for free".

Yeah, maybe somewhere in the bowels of the megabytes of legal proceedings there's some fair use case that clearly failed all four criteria and was still found to be "fair use". This being 2026, I went ahead and asked an AI if it could turn up such a case, with the "high effort" on, and it came back with no. My prompt specified that I wasn't looking for the judge to rigidly specify "no", just express a belief that they were weak but then rule in their favor anyhow. Maybe an AI oriented towards legal searching could do better and if someone can come up with one, I'd be interested in seeing it.

But even if someone does come up with one, it is fairly clearly a curiosity and not something you should bet your future legal status or a business on.

I think a lot of this is essentially governed by ‘who’s asking’. If you post a Seinfeld episode transcript somewhere, it’s copyrighted, but it’s unlikely anyone will care. If you post an Aerosmith song mp3, you’re attracting a DMCA notice like a magnet

In other words some of the technical fair use analysis —- is this replacing the value of buying the content etc —- is also kinda duplicated (or I guess originates) in who is concerned

An aside: The phrase "paper over" is used several times, in a way that seems to mean review/look over. My understanding of that term is that it means to cover up or to hide. The earlier ones felt like perhaps condescending on the legalism (attorneys finding a way to make something work), but I couldn't shoehorn one of the later usages. Is this a different usage I am not familiar with?

(As for the post itself I strongly agree with the thrust! There is so much stuff in the world that you are never going to get explicit permission from anyone to do. And legal questions specifically you will often get a "no" when the real answer is yes - even from an attorney giving legal advice!)

The first definition of this phrase per Merriam-Webster is "to gloss over, explain away, or patch up (differences, disparities, etc.) especially in order to maintain a semblance of unity or agreement". I was also not familiar with it until I went to look.

> it doesn't make sense to spend hours papering over a legal agreement with someone who wants to sell seven copies of a book at an anarchist book-fair

Huh, you're right. That's not at all a correct use of the phrase "paper over." There are three more uses, too, vaguer and thus less obviously wrong. I wonder what the deal is.

In this particular sentence, "going over" would fit.

However, in general I think Cory is (mis)using the phrase as if it means "legitimize" or "associate a paper trail with": not just to review the wording but to come up with the wording in the first place. (Not just "going over" but "working up.") I could just barely believe this is the jargon of some lawyerly (sub)culture.

Several hours later, I'm trying to recover what I was thinking and am having a hard time doing so because I've kind of accepted the sense he's using the term in (ie let's paper over the legal details so that we can focus on things that are actually interesting). I think it was the last use, the one you quoted, that really had me scratching my head. But now that I've adopted the skewed/innovative definition I'm having a hard time re-seeing what I was finding an issue with.

It's perversely horrible if you think about the original meaning of paper in paper over (wallpaper), and imagine legal contracts covering the walls of a room - unfortunately quite close to the "reality" that we find ourselves increasingly operating in.

> Even better, these licenses are international, translated into the language and laws of dozens of countries. That means that you can take a CC licensed short story from Japan, animate it using CC licensed 3D models from Italy, set it to a CC licensed soundtrack from Indonesia and release it in Ukraine, and the whole thing just works.

For me it sounds like huge simplification as it assumes that the license exists in vacuum. IANAL and I'm familiar only with Polish IP law, maybe Polish law is some kind of exception, but...

The CC licenses clashes with Polish IP and civil laws hard. In Poland, there is no legal way to waive personal rights to the work, there are no open-ended licenses, and so on.

We don't have the concept of Public Domain, and while effectively some works might have similarly free, the process to determine this is multi-step and quite complex. Effectively, CC-0 simply doesn't work there

So, yeah, I really like the idea behind CC, but personally I wouldn't use it to any serious work.

Interesting. I didn't know all this nuance in CC law, and I imagine majority of people don't or know some version of the law. Granted even reading this, I think the people asking aren't exactly wrong but more covering their bases; which is a better legal backdrop than his stance.

> Fair use is important, but there's also "first sale," the doctrine that says that after you buy something, you own it, and copyright can't be used to interfere with your traditional property rights. That's why you can buy and sell used books, paintings, records, and other copyrighted work, even if they are sold with fine print that says you're not allowed to:

Hopefully we can use this same logic to reform (destroy) section 1201 of the DMCA.

By property rights, I am intrinsically permitted to modify things that I have purchased.

(Note: if you saw this comment already, I accidentally left it on the wrong HN post)

The "You don't own it if you can't destroy it" discussion goes all the way back to people like Cicero and limitations on what you can and can not do with your slaves. What you desire is sensible and can only be achieved by political means; yet it is undermined already. Licenses are granted, not given. They remain the property of whoever issued it. Here fore, among other things, a discussion about property rights retains the frame used by those who abuse immaterial property rights. This is problematic because it's near impossible to achieve a political goal without setting the right language first.

> They remain the property of whoever issued it.

What exactly do you mean by this?

Licenses like the CC suite, and the GNU GPL or MIT software licenses, cannot be revoked after the fact, nor changed. The licensor can choose to stop publishing a work under, for example, CC, but all those who still have a CC licensed copy of the work may continue to use it according to that license. And in fact, I believe they can even continue distributing it themselves, making a license change mostly useless (unless the work is updated I guess).

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