First, I want to congratulate Shelley at Burningbird for posing one of my biggest questions about the Creative Commons licenses with a concrete example. I've raised this question before, but in an abstract way.
One of my biggest concerns about the Creative Commons license has been the lack of guidance from CC on practical interpretation and enforcement issues. I've held off commenting on the issue Shelley raised because I expected to see something from CC on the topic. Unfortunately, my daily check of the Creative Commons blog has shown mainly the usual victory laps being taken when a high visibility site or celebrity uses or mentions the CC licenses, although Ill note that news of a tweak to one of the licenses has been mentioned. I make no secret of my belief that this approach is not especially helpful and opens the CC to the criticism that it is more of a marketing gimmick for CC than a serious effort to benefit the Internet community by providing a workable and well-accepted license.
However, we at Between Lawyers did decide to apply a CC license to this blog, despite some reservations, and it's important for us to discuss the implications of that choice.
My property law professor at Georgetown, John Steadman, wore a tie to every class that bore the words "Nemo dat quod non habet." My Latin is a little rusty, but take my word that this means "No one can give what he or she doesn't have."
The general rule in property law is that I cannot transfer to you any more rights in property than what I have (or have the authority to transfer). You may be able to point to an exception or two, but that's the basic principle. Think of the classic example of Shifty Shafer selling the Brooklyn Bridge to Jed Clampett and you will get the idea.
The same general rule applies to intellectual property law and, especially, to licensing. Although someone can give you a license to use one of his or her articles, the license has no validity if, because of the work made for hire doctrine, his or her employer is the actual owner of the copyright. The license you received provides you with no protection from a claim of infringement by the actual owner (the employer).
My approach to licensing, in general, grows out of the following principles:
- If I don't have the underlying ownership (or right to sublicense) of an intellectual property right, I can't license that right to you.
- In the case of doubt, the presumption is that the license does not allow you to take the action you want. In other words, courts do not usually find that you have implied rights under a license. If you have a license only to "reproduce" a work, it will not be implied that you have a right to "make a derivative work."
- If you want to do something specific, you do not want to rely on fuzzy and vague license language. Instead, you want to spell out clearly that you are allowed to do what you want to do. Do not rely on implications or generous interpretations.
In the comments to Denise's post on this subject, Phil Ringalda raises a very important question: what's the value of the CC licenses if you don't know that you have a valid right to use the materials? The CC home page also says, quite prominently, Publish your stuff, safely and legally, which can lead people to believe that the licenses are expansive and provide safety to users.
In version 1.0 of the CC licenses, the licenses favored publishers (and re-users) over authors and creators. In fact, there were warranties (a lawyer word think of "guarantees") that the licensor / author guaranteed that the publisher / re-user had the rights necessary to reuse the work. The idea was to make the world safe for publishers.
A number of people, including me, objected to this approach because of the burdens that it put on authors. Traditionally, if an author makes a work available for reuse for free, the author will want to provide no warranties whatsoever. That's the driving notion behind Open Source software and why the software is generally available for free.
Version 2.0 of the CC licenses dropped the warranties and became more favorable to authors than version 1.0 was. However, the CC licenses are no longer as comforting to publishers / re-users.
Now, I'm not going to opine, for obvious reasons, on any specific legal issues involving Corante and Between Lawyers, but let me talk briefly about the general issues raised when you see a CC license.
1. Who has applied the license? Realize that a CC license might be applied by only one of the people or entities that owns intellectual property rights in the work or website that bears the CC license. In many cases, the mechanism of applying the CC license will leave the answer to this question unclear.
2. To what does the license apply? Shelley's example is brilliant because it illustrates a common and plausible reading of the license and the manner in which it is applied. As a consumer, re-user or publisher of a CC work, I'd prefer to see the works to which the license applies spelled out as clearly as possible. As an author, I'd prefer to apply the license with as little work as possible, spell as little out as possible, and not limit my protections in any way because I spelled out one set of rights but left out another. There is a fundamental tension between the two approaches.
3. Does the licensor have the right to apply the CC license? This question gets to the heart of Phil's concern. I think that the real value of the CC licenses is that they take the "friction" out of common licensing transactions and reduce the need to track down authors / owners to get permissions. The trade-off comes in the lack of certainty and confidence that you have all the rights and safeguards that you desire. If the CC licenses went back to adding warranties or even requiring indemnifications, they'd be far less attractive to authors, but more attractive to publishers. In any event, I doubt that a court would decide that you had any protection from an infringement claim by the original author in the case where you relied on a CC license from someone who did not own the copyright.
4. How careful must I be in looking beyond the language of the CC license? Here's the potential problem, as you probably now realize. I find a CC licensed work and carefully study the language of the CC license. However, if the copyright owner has not applied the license, the license has not been applied to what I thought it was, or the licensor does not have the right to apply the CC license, your close reading may lead you to an unhappy result.
As I've mentioned, when I read posts from the Creative Commons blog , I'd like to see these issues being addressed, rather than self-congratulatory material and appeals to George Lucas to CC Star Wars. I've long been puzzled why the Internet community seems to be giving Creative Commons a relatively free pass on this while others get roundly criticized for nearly every move they make. In fairness, however, there are discussion lists on the CC site that seem to be reasonably active, although they are hard to locate and reach (in Firefox, I kept being bounced out to the home page when I clicked on the link for the discussion list on general licensing issues.
I thank Shelley for raising the subject for discussion and, although I kinda expect to be criticized for my approach to this issue, I simply want to start a discussion of the practical effects of the 15 million CC licenses floating around out there and urge that CC take a more visible (or at least more findable) role in addressing these types of issues.
NOTE: I enjoy Phil Ringalda's blog and his comments on this issue, especially after I figured out that he wasn't referring to me as "Hylton's pool boy." He says,, however: "So, please, if you will only listen to me once in this lifetime, *please* consider whether you have any ethical option other than to remove your CC license."
The purpose of the Between Lawyers CC experiment was to apply a CC license and follow and discuss the consequences of that choice. I believe that Denise handled the application of the license in accordance with CC instructions. Even though I hate statements that call me unethical unless I do what you want, I'll put that aside, and note that Phil's comment, as with all other comments on this issue, should be read completely and carefully.
I certainly had the most reluctance of the group in applying a CC license, but I like the idea behind the CC licenses. The devil, of course, is in the details. I'm committed to carrying out the experiment to a logical endpoint, which I hope means that we are able to get the word out on what these licenses mean and to help adjust them as needed.
If they will not work, however, then Phils comment that we all should consider removing the CC licenses does make good sense. Of course, then well get to figure out what happens when someone removes a license after people have already made use of the licensed material.