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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at
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Between Lawyers provides just-in-time group commentary on the issues raised when technology, culture and the law intersect. We take you behind the firewalls and conference room doors to show you how experienced lawyers deal with these issues and help you prepare for the new challenges we all face. For more, see our introductory post.
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« AV Squad: What's The Story With The CC License? | Main | Re: AV Squad: What's The Story With The CC License? »

April 5, 2005

Re: AV Squad: What's The Story With The CC License?

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Posted by Denise Howell

I'll come out of the gate as someone who favors applying a Creative Commons license to this weblog. As I see it, part of the reason we're writing this is to distribute the information as widely and effectively as possible, without completely giving away the farm as to our copyrights. As long as reuse of our work is reasonable and within parameters we can all live with, everyone benefits. The particular license I like for our purposes is the attribution-noncommercial-no derivs flavor. It tells people we want attribution, and it essentially tells them to get our permission before using our work commercially and/or in a derivative work. It's the closest to full copyright protection of the text-appropriate CC licenses, and I think it strikes a good balance conceptually.

It's once you leave the conceptual realm and enter the realm of execution that things get messy. Shelley Powers and Phil Ringnalda have pointed to some great examples recently of how efforts to locate CC licensed works or communicate the applicable CC license can be imprecise, inaccurate, or confusing. There's no doubt that it's early on in the implementation of tools that are intended to either convey the license the rightsholder wants applied to a particular work, or find works that are available for a desired use. (On the latter point, my take is ourmedia and the Internet Archive are probably more accurate at this point than the Yahoo! CC search.) As Shelley's post illustrates, the process of communicating whether and how a work is licensed is still being hammered out and may be for some time. (Example: Atom 1.0 includes the ability to specify different copyright treatment at the item level in a feed, while other means of syndication apparently don't.) There's also no doubt there are and will continue to be those whose attitude toward the terms of the actual license — or in the case of unlicensed works, the effect of the copyright — is more cavalier than it should be.

Is any of this a reason for us to forego a CC license for Between Lawyers? I don't think so. There is much we can do to help communicate our intentions clearly. We can make sure any license we choose is referenced visually and in our feed. And for our purposes, I don't see us needing or wanting to specify different licenses for different aspects of our work here, but if the need should arise it shouldn't be too difficult to clearly spell out our intentions. (For others who make lots of different media types available from one source, this might be a much bigger concern.) The implementation and communication of licenses online is an area that will continue to develop, and the confusion we see today might well find its way into some legal disputes. But I don't think that's a reason to throw the baby out with the bath water. Instead, if you think it's in your interest to adopt a license (as I do for us here), it's something to to be aware of and take reasonable steps to address.

Comments (3) + TrackBacks (0) | Category: Copyright | Creative Commons


1. Jack Krupansky on April 5, 2005 6:14 PM writes...

It might be instructive for any licensing proposal to explore the limits and edges of the fuzzy border line between "fair use" and infringement.

Take any of your works and show me one "use" that's just barely "fair" and then show a few very modestly broader uses that would be clearly infringement (including derivative works as well).

Until we can get a better handle on what consititues fair use in a hyper-linked world, talk of variations in licensing will be moot.

A set of side-by-side fair/not-fair examples would help enlighten the debate tremendously, unless the goal is to extend the debate rather than to try to bring it closer to a consensus.

Until then, we'll all labor on with own own quirky internal models of what constitutes "fair" use.

-- Jack Krupansky

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2. Denise Howell on April 5, 2005 9:10 PM writes...

Great suggestion, Jack, thanks. The difficulty in carrying it out is that, due to the extent to which courts apply the fair use doctrine on a case by case basis, it's very hard to come up with concrete examples of what would or would not *certainly* be considered fair use. There are a host of variables, and when the issue comes before a court it does the math anew almost every time. That said, I do think it's an instructive suggestion and we'll think about whether there's anything useful we think we can add. In the meantime, the best readily accessible resource I know of on this is here: the Stanford Copyright and Fair Use Center.

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3. Denise Howell on April 5, 2005 10:04 PM writes...

A good resource on current developments in fair use: the IP Central weblog's fair use category.

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