ZX License: Key Ideas
It is September 14. I am crazy busy. All Hail Megatron #15 is released in the 16th.
Let’s do this thing.
I’ve been calling my proposal for TFWiki’s hypothetical “second license” intended to protect producers of official Transformers-related material from legal complications around the CC-BY-SA license which governs our content the “ZX License.” I’ve never really defined what that means. I do so now, shotgun style.
Given: Copyright exists
It is a given of this license that TFWiki has a basic copyright over its own value-added contributions which is separate from the raw facts of the universe which are indisputably Hasbro’s property.
(Whether or not Hasbro is able to exert copyright over those ‘bare facts’ is a question; people can publish “unauthorized guides,” which suggests that collections of fiction-fact may not be subject to copyright. However, such guides are written in a very specific “voice” to toe this legal line very carefully. TFWiki’s articles are not- and frequently include direct quotes from Hasbro’s material they indisputably can exert copyright control over. So for our purposes, we’ll just say ‘yes, Hasbro can exert ownership over its portion of our content.’)
The result is that TFWiki’s articles are under joint copyright, partly Hasbro’s property, partly our own. Neither party can legally publish them without the permission of the other. That is not the same thing as “Hasbro owns our articles,” rather it is “Hasbro’s partial ownership of our articles restricts our ability to do whatever we want with them.”
The correlary that many seem to miss is that our partial ownership of the article restricts Hasbro from doing whatever they want with them. Specifically, if Hasbro use them, our portion is automatically licensed under CC-BY-SA, whose viral license terms (including the right for anyone to make or distribute copies) will then contaminate the resulting work.
Thus… the need for a second license.
Permissive vs. restrictive law
IP License grants tend to be very long and legally complicated things, because they wish to grant the licensee very specific, non-blanket usage rights, so every way in which those rights are granted-but-then-limited must be outlined in mind-numbeing detail phrased in the most unambiguous way possible.
…we’re not doing that. The ZX License is permissive, not restrictive. It essentially boils down to “You can do literally anything as long as you limit the content used to a small ammount. This license is only offered for small-amount usage.”
As a result, the legalese can be short.
Legal concepts
The “ZX” in the ZX License is rooted in two basic concepts of common or natural law.
Customary Freehold - The unwritten legal relationship between a landowner and tenants on his land whose right to be there has never been officially written down but stands from long tradition. These include the tenants responsibilities towards the landowner, their rights towards the land, etc. Customary Freehold has largely fallen out of use since the 19th century (when it became typical for all contracts to be written down) but is still recognized to be legally valid.
Xenia - The ritualized “guest-host” relationship that exists between a Household and the temporary guests within it. The guest’s responsibility not to abuse the Host’s hospitality and the Host’s not to make his guests feel a burden, as well as some social and even legal obligations. Somewhat notably, it includes an obligation for guests to defend their host from attack. (This last bit was actually the cause of the Trojan War… Hellen of Troy may have been beautiful, but it was the honor-obligation from all the guests at her husband’s dinner party where she was stolen that launched the thousand ships…)
In both cases the obligations between Guest-Resident and Host center on ideas of “implied consent” and “duty to rescue” found in most modern Good Samaritan Laws. (Indemnification: not so much.)
Intellectual Property as Real Estate
The concepts above govern the relationship between a guest and host on physical property.
We hold that the same basic principles apply with intellectual property. Both recognize a difference between trespass and theft, concepts of adverse possession and (most importantly) have guests… not just int he form of business partners (who are granted explicit license to be on that property) but individuals who are invited to stay for a bit and play with the owned-concepts fount there.
Broadly, you can divide this sort of “intellectual real estate” into two types, dependent on the landowner’s relationship to guests on their property.
* Closed Culture - Guests are allowed to visit, but strictly on a look-but-do-not-touch basis, like a tour. Melrose Place is a good example of a Closed Culture; the Spelling Entertainment Group has consistently (and notoriously) acted to shut down many type of “fan” activities, including fanfic archives and even discussion boards. Melrose Place is a Closed Culture entertainment where fans are welcome to visit and view, but not wander freely or create their own works. It is very much provided with “no user serviceable parts inside.”
* Open Culture - Guests are allowed to wander freely and actively encouraged to create their own derivations based on the IP found there, which are recognized as belonging to them. Dungeons & Dragons would be an extreme example of an Open Culture. Users are provided a sandbox kit and expected to make their own characters, settings and adventures that TSR will not have no ownership of except for those elements which were drawn from the D&D lexicon.
Most properties fall somewhere between these extremes. Increasingly in recent years the fans-as-receivers closed model has fallen out of favor as a relic of an management culture that made no distinction between fandom-activity and piracy… but it is still sometimes practiced today by property owners who want to exert control over the manner in which fans interact with their product.
Transformers is something of a middle-ground. Cartoon, comics et all are centrally produced, but (fairly uniquely at the time) every Transformers toy produced since 1984 has included a bio, and character stats including a ranking within the faction command hierarchy, and the play-pattern presented by it’s own commercials has consistently been one of narrative roleplay. Clearly children have been encouraged to create their own adventures, and each character comes with their own bio and stat-set as a starter kit to do so.
What this all essentially amounts to is the idea that if a Copyright owner has historically extended safe harbor to fanish activities, they cannot summarily retract it, in the same way a Landowner cannot summarily eject customary freeholders and similar to the way a trademark owner cannot seek to exert control over a trademark which they have allowed to fall into general use.
This means that the status fans occupy on the owner’s property is more akin to Homesteading than squatting. (Arguably this is legally important, because it characterizes many common fandom activities as a permitted or semi-permitted use rather than an ongoing copyright violation that weakens the general copyright on the core property.)
(There is something of a fandom-bill-of-rights-and-responsibilities at work here… but that’s more of a side effect of the root law being used than an intention. The intention comes in with the next bit.)
Key Meta-concepts
Having identified underlying concepts and applied them to IP-as-property, it’s time to label our understanding of those ideas:
* Zeloxenia - The “ZX” in ZX License, this loosely translates as “fan guest-hospitality.” Zeloxenia encompasses Xenia, Customary Freehold, and homesteading as outlined above. Fans who have been invited to play on another’s property are recognized to have a right to do so, while also having significant responsibility toward the property-owner not to damage the landscape in the process.
Fans who choose to tarry or ‘camp’ in this property and build more complex derivations may have an understood right to do so… but in so doing they also become more responsible for the area they occupy. As their level of involvement deepens, fans bear an increasing burden to protect the value of the property; this may mean properly citing copyright so their use does not erode the owner’s property, and a basic responsibility cultivate the property they are occupying. To a certain extent, resident-fans go from being visitors on this property to stewards or Yeomen of it.
Xenia includes a ritual exchange of gifts, which may be fulfilled here by a “good-neighbor” relationship; you may borrow one another’s hedgeclippers as long as you make sure to return them. This is similar to land-use rights that might be expected under common freehold… a basic diffusion or interchange of rights and property occurs between both parties that is mutually-forgiven/freely-gifted as a natural part of their relationship.
Good faith is a prerequisite for Zeloxenia to exist, and in Closed Culture broadcast-receiver models where fans have no rights, it is understood to be very weak or not exist at all.
An important point to note here: This is all describing a relationship and understanding that has always existed between fans and the object of their fandom. (At least in media fandom, most non-media fandom qualifies as a Close Culture.) As such, we hold that these principles (and the unwritten contract they encompass) have always been in effect, and fans’ past contributions to TFWiki were made under this understanding. (Asking people to explicitly ratify the license largely renders this distinction moot though.)
* Lagom measure - A Sweedish/Norwegian concept of “just the right amount.” (If you know Norwegians… this explains a lot about their personality.) Under the ZX License, a licensee will be granted the right to re-use a Lagom measure of content- an amount which does not prohibit use, but also does not encourage it. This means the unit size of a Lagom measure variable by situation… which heads off precedent-based license jailbreaking; just because X amount of re-use was Lagon for one situation does not mean it is automatically Lagom for another. The maximum ammount of re-use in a Lagom measure is understood to be greater than that permitted by Fair Use.
You could use a dozen pages of legalese to try to define how that works… or you could just fall back on the pre-existing Sweedish concept. Since our license is permissive and not restrictive… we can just cite the Sweedish concept.
Basic bounds are set via a philosophical statement to the effect that: “We think it is bad for the vitality of the Transformers brand to be re-using our content because that may cause it to become fixed and cease to grow and change… but recognize that some re-use is inevitable and wish to permit that without consequence.” …and you are essentially granting a blank check for content re-usage that still strongly encourages such usage to be minimal: Gross abuse of the definition constitutes bad faith and causes the license to lapse.
How content is used
For a hypothetical content re-user (such as IDW) that wanted to use our content under the ZX license, their re-use can be broken down as follows:
* Use under the ZX license. That is to say- usage rights afforded to content generated after the date of the ZX Licens’es adoption, or to prior content which was generated by users ratifying the ZX License and explicitly re-releasing their contributions.
* Use under principle of Zeloxenia. The balance of past contributions not signed-off-on, but whose usage in combination with the prior category up to a Lagom measure is implicitly provided for under the operative principle of fan guest-hospitality.
* Use under Fair Use. A portion of any remaining content not covered by the ZX license or beyond the size of a Lagon measure may be used as fair use.
* Any use more extensive than a Lagom Measure + fair use of the remainder must be licensed under the terms governing the remainder. (In most wikis’ case, this is CC-BY-SA.)
In short, if a re-user (such as IDW) takes shallow sips of our content, they are provided by 3 level of cascading protection before the question of CC-BY-SA license contamination can even come into play. You would have to drink a mighty gulp from our content to exceed all 3.
Structure
Finally, I believe the license structure would (roughly) break down into the following sections.
- License deed - (nonbinding) - plain-English statement of “what you get”
- Philosophical statement - (nonbinding) - Responsibilities fans have toward a brand
- Key ideas - (nonbinding) - Summary of legal concept, as above
- Application of Key Ideas - (nonbinding) - How we understand them to apply to our situation
- License code - (binding) - “consistent with the principles granted above, the copyright holders grant you use to…” Because the license hangs on pre-existing legal principles, we do not need to outline them in legalese; and any deficiency in our description in the prior nonbinding sections is moot, because that deficiency would not be ‘consistent with the principles.’ Again, this is only possible because we’re drafting a permissive license, not a restrictive one.
- Clauses - (binding) - Future versions and enforceability caveats; cribbed from existing licenses.
- Adoption - (binding) - Proviso to allow individual users to ratify this license beyond just the community doing so and thus explicitly re-release their prior contributions under the ZX license “to remove any doubt.”
Ugh. Anyway- that’s the reasoning and skeleton I’m thinking of. Most of the license is essentially a “statement of understanding” of legal principles which exist outside this license… no more binding than the Creative Commons “GUI” deed. The actual binding legal code is kept to an absolute minimum and essentially boils down to “you can use it under the relationship described above, if you exceed this or act in bad faith, your use lapses and you may incur CC-BY-SA consequences.” Because it would require truly heroic abuse to do so, this provides more-than-reasonable protection for a content re-user.
If each of those sections can be boiled down to a few sentences (and I’m fairly sure they can) then you have the basis for a serviceable plain-English license that covers our ass, covers Hasbro and it’s licensees ass, does not give away the farm, recognizes the rights of fans to exist, and codifies or recognizes the moral imperative of good conduct and good faith that should underlay fans relationship to the underlying brand.
Oh- and it doesn’t violate the terms of CC-BY-SA. Important that.
And it doesn’t weaken CC-BY-SA3, since the core principle of Zeloxenia, by fundamental definition, only exists in relation to media fandom- so the principles of the ZX License cannot be used as to pry other content out of CC-BY-SA- and actually (as outlined in a previous post) strengthens the CC license by relieving unresolved legal “pressure” at stress points where CC-BY-SA fails in relation to wikis.
But thank god most of that can go unwritten, because I’m exhausted just looking at it.