I learned something today! (AKA - why I hate CC Sampling licenses)
Clarence Simpson
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Tue, Mar 29, 2011 @ 12:05 PM
So, today I received an e-mail from the founder of a new music non-profit organization called Music Is Medicine. He gave me a quick pitch explaining that his non-profit is trying to create a place where musicians can sell their music and listeners can name their price if they want to buy it. Not only that, but they’re donating a portion of each sale to charity.
I thought it was a really cool idea and I’ve actually seen that business model work first hand in the video game industry. Last year some people released a package of indie video games called the Humble Indie Bundle with the same “name your price” and “portion of sales to charity” concept. In only 6 days time, they generated over a million dollars in sales including over $300,000 to charity. Anyway, the Music Is Medicine founder asked if they could use my song “ Love Is What’s Missing” in a promotional video for the site. I almost immediately typed up my stock reply of “Yeah, no problem! You didn’t even have to ask. CC licenses already grant you the permission… blah blah” Then I noticed the song was NC-Sampling Plus, not BY-NC. “No big deal” I thought. I remembered reading the human-friendly CC Sampling license before and it sounded almost exactly like BY-NC. But just to be sure I went through and read it again including the NC Sampling Plus legal text. That’s when I hit two bombshells that really showed me the difference between NC-Sampling Plus and BY-NC and also made it exponentially more difficult for this guy to use my song. 1) I noticed this clause: Your Derivative Work(s) must only make a partial use of the original Work, or if You choose to use the original Work as a whole, You must either use the Work as an insubstantial portion of Your Derivative Work(s) or transform it into something substantially different from the original Work. In the case of a musical Work and/or audio recording, the mere synchronization (“synching”) of the Work with a moving image shall not be considered a transformation of the Work into something substantially different. So, basically, NC-Sampling Plus songs cannot be used in videos as-is. Period. Wow. I guess we need to notify these 100+ people that their videos made from NC-Sampling ccMixter songs are in violation of the CC license. Maybe we should remove the “I saw this in a video” link from Sampling Plus licensed songs to more actively discourage this usage? 2) Also from the license: You may not use this work to advertise for or promote anything but the work you create from it. I would think the Non-Commercial clause was protection enough. Was the intention really to stop situations like this one I’m in? (a non-profit trying to promote itself) Anyway, I’m grumbling now because I can’t just say “Yes”. My understanding is that to do this legally, I (or they) would have to contact basically everyone on the remix history chart (15 people!) and get their permissions as well since their desired usage falls outside of the automatically granted rights of the license. Lame. |
Admiral Bob
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Tue, Mar 29, 2011 @ 5:48 PM
I’m not big on them either. One good thing about them, though, is they aren’t viral. I believe you can use a sample inside a work that, as long as it meets the sampling+ conditions, is itself licensed with an equivalent NC license.
Unfortunately, CCMixter basically has to treat licences as both viral and lowest common denominator, in order to make sure derived works don’t wrongly expand the rights granted by the sampler in those cases where it does matter. :( |
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Actually, I had a conversation with some of the guys over at creativecommons.org today about the situation. They gave me the impression that the Sampling Plus licenses are, in fact, viral because they are more restrictive (specifically regarding the two points I mentioned above) licenses than the BY or BY-NC equivalents.
Because they are more restrictive, I think a derivative of a Sampling Plus sound/song must also be licensed as Sampling Plus or some equivalent that protects all Sampling Plus rights. However, the BY and BY-NC licenses don’t provide the “no usage as a video soundtrack” and “no usage in marketing/promotions” protections of Sampling Plus. Therefore a derivative of Sampling Plus can’t be licensed as BY or BY-NC. :( I’m certainly no expert, but this makes sense to me, to my dismay. I had also found a matrix of compatible source/derivative license combinations online somewhere that confirmed the above (that the derivative of a Sampling Plus must be Sampling Plus). And honestly, now that I know all this, I still don’t understand the point or intention of the creation of the Sampling Plus licenses and their extra restrictions. I keep thinking about them, but for the life of me I can’t think of a good reason for them. The extra restrictions just seem silly and counter-productive to me, and I think I’m going to stay away from using any Sampling Plus material in the future to prevent my music from getting “infected” with those restrictions (as in this case). |
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The sampling licenses aren’t viral in the sense usually used to describe some licenses — copyleft/sharealike ones. These require releasing adaptations under the same license as the original, so a remix of a track under Attribution-ShareAlike must be distributed under Attribution-ShareAlike, or a fork of a program under the GPL must be distributed under the GPL.
Sampling[+] doesn’t require distributing remixes under Sampling+. The remix could be under default copyright, ie no license, so long as the remixer gives attribution, doesn’t use promotionally, etc. Same with BY-NC — remix doesn’t have to be distributed under BY-NC, could be under a different license or no license so long as work not used commercially. Of course practically if one wants to offer remix under a public license, one is fairly constrained as to what licenses are available, as one can’t pass on more rights to the source material than one has permission to, so often the remix will be released under the exact same license as the original. Subtle but important difference between “viral” and non-viral licenses… Sampling+ licenses isn’t widely used and because it isn’t clearly compatible with other public licenses for reasons mentioned above, I disrecommend using Sampling+. I hope that CC can “ retire” Sampling+ and NC-Sampling+ soon so as to further encourage use of the mainline licenses. We’ve been waiting for Freesound v2, which will support the mainline licenses — Freesound uses Sampling+ and we don’t want an important and cool project like that to be stuck using a “retired” license. Fortunately it looks like Freesound v2 is now coming along. |
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Good points of clarification, Mike. Thanks!
Yeah, I guess I was thinking of it as a viral license because the restrictions themselves are viral (i.e. - they must be passed on to derivative works). But of course, to be fair, that’s no more viral than any CC license. Also, big “YAY” from me for retiring Sampling licenses. |
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CCMixter doesn’t directly support any particular license when uploading a remix. Instead, the most restrictive of all the source licenses is used, to ensure there’s no murky legal limbo going on.
Victor never liked these licenses, as he wrote: A few months after the launch of ccMixter, I had come to a bitter conclusion. The Sampling family of licenses had restrictions and requirements that I came to believe were doing more harm than good to the cause of demonstrating reuse. Audio samples with these licenses were legally incompatible with audio samples licensed under other CC licenses. Even worse, remixes with a Sampling license could not be used as video soundtracks – not even in amateur YouTube-style videos. I was concerned that we could not credibly claim to be the “sane” alternative to an “All Rights Reserved” model under these conditions. I made my case to CC staff and they agreed to discontinue supporting the Sampling licenses on ccMixter and green-lit a “re-license” campaign on the site that gave musicians a chance to remove the Sampling licenses where legally feasible. Since then, CC came under fire for having too many license options, confusing potential adopters and support was dropped for the one of the lesser used Sampling licenses. The others still exist as options in the CC license chooser but have a much lower profile than in November 2004. You will notice that Sampling licenses are never part of the options when you upload a sample here. |
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Yeah, that “substantially different” clause in the Sampling+ licenses makes me cringe. Like you/Victor said, it prevents video soundtrack usage, and imagine this:
Someone uploads a complete instrumental track that’s licensed Sampling+ because it used a bit from freesound.org. Now, say I want to add a violin to harmonize with the existing cello part on the 2nd chorus. That’s not substantially different and therefore illegal. Say I want to replace the electric guitar solo with a flute solo. That’s also probably not substantially different and therefore illegal. Say I want to write lyrics and sing over top of the unchanged instrumental track. I think it could be argued that even that is not substantially different and is therefore an illegal usage. And all that sounds like madness to me. I am thankful ccM doesn’t directly offer Sampling+ as an option, but there’s still enough freesound stuff swimming through the archives that you have to make a conscious effort to avoid it. |
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Freesound v2 is being launched this week, which means [NC-]Sampling+ will be retired this week. Long blog post explaining this forthcoming.
Note that Freesound v2 encourages users to move their sounds from Sampling+ to one of CC0, BY, or BY-NC. Hopefully many people on Freesound will do this and open possibility for tracks on ccMixter using Freesound samples to also change licenses. |
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Clarence Simpson
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Wed, Mar 30, 2011 @ 8:08 AM
OK, happy ending in this case because it turns out my song was only Sampling+ on a technicality… but I still hate Sampling licenses.
I looked back at the remix history and saw that my song was Sampling+ because it used the first 15 seconds of a particular song “A” which was also Sampling+. “A” was Sampling+ because it used a freesound sample about a minute or so into the song. It turns out that the first 15 seconds of “A” were actually just a sample of song “B” which was licensed as BY-NC. So, basically, all I had to do was re-attribute my song as using samples from “B” instead of “A” and it magically loses the Sampling+ license. Hooray! |
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