Denise Howell Denise Howell
( Profile | Archive )

Dennis M. Kennedy Dennis M. Kennedy
( Profile | Archive )

Tom Mighell Tom Mighell
( Profile | Archive )

Marty Schwimmer Marty Schwimmer
( Profile | Archive )

Ernest Svenson Ernest Svenson
( Profile | Archive )

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
About this blog
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.
In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Between Lawyers

« Re: AV Squad/CC License | Main | Re: AV Squad: What's The Story With The CC License? »

April 6, 2005

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

Email This Entry

Posted by Denise Howell

Some follow up thoughts from me on the issue of whether we should adopt a Creative Commons license, and if so which one:

  1. I find myself in Tom's camp rather than Dennis' on the issue of the clarity (or lack thereof) of the language included in the long/actual versions of the CC licenses. (Is this any surprise given that Tom and I are both litigators, and thus don't actually draft these sorts of things?) My take is the licenses get their essential messages and points across, and to the extent there is any ambiguity in their actual text, one of the first pieces of interpretive evidence is likely to be the short, "human readable" version. Dennis' concerns are well thought out and well taken, but I'm comforted by the fact that the initial and revised versions of the licenses have the benefit of considerable sage input, and, as Tom points out, all similarly situated CC licensors will be in the same boat on issues of interpretation, which seems like it can only help reasonable and sensible interpretations of the licenses to carry the day.
  2. More troubling to me than the language are the implementation issues, but I think we can deal with those. Things any potential CC licensor needs to carefully consider are how to tag works (including whether to separately tag individual bits of work or apply one tag broadly), and how to most effectively include license information in any related metadata (for us, the site's RSS feed). As long as these multiple moving parts convey a consistent message, as the rights holder I think you've done your job in communicating the license terms.
  3. The only thing CC licensors (creators) and licensees (users) can do if third parties muddy things up (see Phil's Technorati example) is complain about it and seek better functionality if things are causing confusion, and compliance if license terms are being ignored or arguably violated. Things move quickly on the Web and lots of eyes are on Creative Commons. I'm optimistic that many of these glitches are inevitable growing pains that can and will be cooperatively addressed.
  4. Dennis asks, "[I]f someone copies a post and uses it on a site that runs GoogleAds, would that be a commercial use and a violation of the license?" I think there's definitely the potential for violation of the noncommercial use licenses in any situation where the use has any kind of commercial context. However, in instances where the use meets a sufficient number of the fair use criteria, I think the fair use doctrine will likely control.
  5. With three litigators and a trademark guy as the alternatives, Dennis, you'd definitely be drafting any kind of custom license. ;) Much as you're my hero in so many ways, and much as I have faith in your ability to draft something that is the epitome of clarity and effectiveness, I have a couple of reservations about going "off CC." For one thing, Corante uses RSS 2.0 to syndicate its blogs, and I don't know if (and doubt?) there is an RSS 2.0 module that would accomodate a custom license. So I don't know if our feed could effectively communicate our license information if we went custom. Also, see my comments above about the potential benefits of the collaborative input the CC licenses have and continue to receive, and of the influence of CC licensors as a group.
  6. Tom's point about "needing a Creative Commons license to protect our content" needs some clarification. In my opinion our work here already has more protection under existing copyright law than we actually care about it having. A license lets us identify some reuses of our work that we think are just fine, and in fact welcome, while also specifying which copyright protections that otherwise apply by default we would like to retain. This helps us by encouraging others to discuss and build on our ideas, and helps those who would like to do so understand the parameters we've expressly approved.
  7. I'd rather see Dennis further enlighten us about the mysteries of law, tech, and his inbox than become our Leonberger of licensing.

Comments (2) + TrackBacks (0) | Category: Copyright | Creative Commons


1. Dave! on April 7, 2005 1:45 AM writes...

Re: #5
Assuming your RSS file is generated via a template, you could have the template insert the license terms into the RSS file each time it was generated. If you wanted to get fancy, just create your own XML namespace and you could insert license terms in valid XML into the RSS file exactly as CC does. It's pretty trivial, technically speaking.

I think it would be a shame if a legal group blog made up of prominent legal bloggers chose not to adopt the CC license in favor of their own. There's absolutely nothing wrong with it... and I understand Dennis' concerns. But to those outside the legal community (and more than lawyers read this blog, I'm sure) it implies a lack of faith in the CC license, for whatever that is worth.

Permalink to Comment

2. Denise Howell on April 7, 2005 2:27 AM writes...

Gotta admit, creating my/our own namespace seems intimidating, but it seems more user-friendly than trying to make readers and their reading tools of choice swallow the whole of the license whenever the RSS is generated. Am I overestimating the complexity of the one, and the cumbersomeness of the other?

Permalink to Comment


Email this entry to:

Your email address:

Message (optional):

New NY Advertising Rules Are Out There
(Head)Hunting Season
Best Wishes for 2007!
Legal Services and the LongTail
New Bar Blogging Policy Emphasizes Cluefulness, Participation
Disturbing Study on Treatment of Minority Female Lawyers
Are Blawgs Dead?
The Gospel of Blawging