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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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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May 24, 2005

Dennis Re The Sincerest Form of Birdery

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Posted by Dennis M. Kennedy

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 I’ll 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 Phil’s comment that we all should consider removing the CC licenses does make good sense. Of course, then we’ll get to figure out what happens when someone removes a license after people have already made use of the licensed material.

Comments (9) + TrackBacks (0) | Category: Creative Commons


1. Denise Howell on May 24, 2005 11:18 PM writes...

Great post Dennis. On your last point, "then we’ll get to figure out what happens when someone removes a license after people have already made use of the licensed material," I'm sure you already know this but I'll mention for our readers that the licenses address this eventuality; ours does at para. 7(b).

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2. Shelley on May 25, 2005 2:17 PM writes...

I don't have trackback, but I recently linked this in a post at my weblog. Excellent write up Dennis. Really first class.

Thank you.

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3. vrimj on May 25, 2005 4:32 PM writes...

The thing I have often wondered about the creative commons is why they deal exclusively in licenses. In many cases it seems like what people really want in many cases is an easement. Transfering a property right to the public domain whould prevent problems if heirs cased trouble or the underlying copyright was sold.
I admit to knowing more about dirt ownership issues, but is there some reason that you can't have an IP easement with notice?

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4. vrimj on May 25, 2005 4:32 PM writes...

The thing I have often wondered about the creative commons is why they deal exclusively in licenses. It seems like what people really want in many cases is an easement. Transfering a property right to the public domain whould prevent problems if heirs cased trouble or the underlying copyright was sold.
I admit to knowing more about dirt ownership issues, but is there some reason that you can't have an IP easement with notice?

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5. Gerry on May 28, 2005 10:19 AM writes...

Well, dirt and IP are really quite different things even if the current legal fasion to them more that way. The Constitutions language about "limited" grants of patents and copyrights suggests that the natural or default state for intellectual property is a shared cultural commons.

Jefferson is quite clear on the concept that ideas can be shared with little cost to the author or inventor to the great benefit of the public. Would that the public give support to the producers of public works so that more might contribute their works directly to the commons.

On the subject of validating that the actual author assents to placing a work under a CC license, I don't think it is as big of a concern as you suggest. Not that it isn't one, and in the OSS community we have the example of SCO's lawsuit which involved their claim that Linux infringed on copyrights they owned. Beyond the FUD of SCO's claims and tactics in this matter, if there ever were a legal finding that a particular piece of code infringed on a copyrighted work, it would be a simple matter to replace it. Patents are another matter, but it is always possible to write an entirely new piece of code with the same function.

If a space is declared to be a CC space, for example a blog or Wiki, then it becomes the author's responsibility to clearly mark material in that space that is restricted. True, there is no time limit on such a claim, so if a publisher were to release something subject to a later claim there is the possibility of liability, but I would think it would be rather limited. Remember that the cost of reprinting digital works can be near zero.

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6. Charles Norman on October 31, 2006 2:20 PM writes...


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7. Ahmed Taber on November 1, 2006 1:00 AM writes...


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8. Cory Carder on November 1, 2006 6:39 AM writes...


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9. Donavan Canada on November 1, 2006 1:32 PM writes...


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