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Denise Howell Denise Howell
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Dennis M. Kennedy Dennis M. Kennedy
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Tom Mighell Tom Mighell
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Marty Schwimmer Marty Schwimmer
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Ernest Svenson Ernest Svenson
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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 dhowell@gmail.com.

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 tmighell@swbell.net.

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 marty@schwimmerlegal.com.

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 esvenson@gmail.com.
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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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« Re: AV Squad: What's The Story With The CC License? | Main | Experiment: Request for Comments On Capital Records v. Naxos »

April 7, 2005

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

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Posted by Dennis M. Kennedy

In this episode, Denise and Tom begin to persuade me, but it's the notion of evolving toward open source law that I find convincing.

I have to admit that Tom and Denise are so darn reasonable and I seem, well, a little petty, almost as if I still hold some kind of grudge since the day the CC group amended the first set of licenses and pointed out the names of people who had suggested the changes and LEFT OUT A MENTION OF MY NAME. Fortunately, I don't let that kind of stuff bother me.

There's a comment on one of the posts in this thread from Karl-Friedricha Lenz, who has written as much and as well about the details of the CC licenses as anyone I know. He raises a great point - maybe now is a good time to consider simplifying the license language and making it a little easier to understand.

I'd also like to see a greater effort made to collect and maintain analysis and interpretative materials. I'd also like to see a stronger leadership role from the CC in letting us know how to enforce these licenses.

I was talking to Tom today about some other things and we discussed this issue a bit.

Tom asked, "Aren't we better off with some license than no license?" You can argue that not having a license allows you to retain as many of your copyright rights as possible and allows a user/publisher to claim as few rights as possible. However, you leave the scope of what someone else can do to later interpretation.

If you use a license (of any kind), you gain the benefit of (1) explicitly setting out the terms of the license and (2) as in the CC licenses, you can disclaim warranties, limit liability and cover other important matters. The second point is very important.

You'll probably agree that these two points make us want to have a license agreement rather than not have one.

That brings us to the second part of the analysis: CC license or custom license. Let's put aside for the moment that my fellow Between Lawyers generous offer of volunteering me to write a custom license in my free time in fact will move me to conclude that a CC license is the way to go.

As the five of us batted around the notion of "open source law," we were intrigued by the idea that by standardizing on a limited number of standard licenses (or standard blogging policies, terms of use, and the like), we all might be better off because we would have standard approaches, standard expectations and we could, in fact, make transactions smoother by limiting the number of approaches for common transactions. For many businesses, then, the legal aspect of these contracts would not be the drafting of contracts by lawyers but the selection of a type of contract that best met the business's comfort with handling legal risks and best matched the way they wanted to deal with their customers, handle disputes and the like.

Over time, disputes would be decreased because people would be working under standard agreements that gave them a known set of expectations and for which a body of interpretation would have grown up. The standardization would reduce the friction that custom (and often ill-matched and poorly drafted) contracts arguably place on transactions.

In a sense, then, we look to the 80/20 rule and say that we are better off with less than perfect contracts and smoother transactions with lower legal costs (with fewer disputes) than we are with contracts that attempt to provide us with perfect protection that cause more disputes and make transactions more difficult.

It's worth emphasizing that this is a radical approach. Yet, I'm coming to believe that it may be what is required in the Internet era.

In that light, the CC licenses represent a good example of this approach. If 14 million pages have CC licenses, then we start to get the benefits of standardization, common interpretation and a reduction in the friction of transactions.

Therefore, I think that it is important to see if we can use a CC license to help further this trend, even if I might quibble with the particulars of the language or find some of it largely impenetrable.

Now, the rest of us have to be a little careful with the reasonableness and low-key approaches of our litigators, Tom and Denise. In a real dispute, they'll both turn this language inside out and point out every bit of vagueness and inconsistency.

Here's an example:

Assume someone improperly uses my material in a "Collective Work" under the CC licenses. I want them to remove my material from the Collective Work. I look at the last sentence of Section 4(a) and it says:

"If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any reference to such Licensor or the Original Author, as requested."

Do they have to remove the material or just a reference to my name? Why would I want them to remove my name if the material is still in the Collective Work?

Do you think my easy-going litigator colleagues won't have a field day with that language if a dispute ever arises? Do you have any comfort about how a judge will interpret this language? Do you really think that the nice, easy-to-understand summary will carry the day?

On the other hand, it millions of people are using this license, I think it's more likely that we'll see a more reasonable interpretation than we might in a single contract between two parties.

In the case of the latest generation of the CC licenses, I think that we are past the 80/20 range and, for most authors, the license gets you most of what you want. With 14 million uses of the licenses, we might be able to lobby for clearer provisions.

What's most intriguing to me about the CC licenses (or, more accurately, the widespread adoption of them) is that we can use programming to ensure that material is used in accordance with the applicable license by incorporating the license restrictions into the material. A custom license probably would not offer that same opportunity. This will help everyone. I'd like to have the materials I want to use self-validate that I can use them in the way I want rather than try to figure that out for myself.

As I indicated yesterday, I expect to end up in favor of moving to a CC license. Like Denise, if we reach that decision, I lean toward the most restrictive of those licenses. In other words, I don't want others making money off my work without my permission or some form of revenue sharing; I don't want people using my materials without giving me credit (attribution); and I don't want people turning my material into something else without my permission. These are the premises of the CC license Denise suggested.

If, however, we were in a world of automatic transactions and payments, a license permitting commercial use upon automatic payments might be quite interesting.

Like others have noted, however, some aspects of this license still are not very clear, especially what the meaning of "non-commercial" is.

I think that unless we hear strong objections from Marty and Ernest, you'll be seeing a CC license on this blog in the very near future.

As I mentioned to Tom today, I've all but decided to put a CC license on my seminar materials and slides, so I've been leaning in this direction for a while. I just wish they'd clean up the language a bit.

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


COMMENTS

1. Denise Howell on April 7, 2005 2:21 AM writes...

Damn those litigators...! (Where is the love, I ask you? ;))

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2. Rob Hyndman on April 7, 2005 8:18 AM writes...

Dennis,

The concerns you raise about standardizing around model sets of agreements is a key driver for the wikilaw idea I mentioned a while ago. Too bad we didn't discuss it in more depth at LexThink! (or at least I missed the sessions where it was discussed), though in the session on the billable hour I had a nice little rant for a while on how the billable hour encourages intractability in negotiations and extremely biased drafts.

Then I went and had a tea and calmed down.

:)

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