If they'd have asked me (or perhaps 95% of the over 1,000 people who have voted in the Volokh Conspiracy poll), I'd have told them the last thing they should be doing is invoking the DMCA. Instead I'd have recommended:

• applying an appropriately liberal Creative Commons license,


• holding a mashup contest, and


• showcasing the winner and the top 9 runners up on the firm's home page.

Shelley Powers does a great job of summing up some of the key issues and unanswered questions about the Creative Commons licenses in her post "Virgin Bites Creative Commons on the Butt." Highly recommended.

We discussed the Creative Commons licenses (and some of the issues Shelley raises) a few years ago when we started the Between Lawyers blog as an effort to show our readers how a group of lawyers would think about applying a Creative Commons license. Those posts are collected here. I also talked about Creative Commons license issues in the recent Episode 26 of the WordPress Podcast.

Danny Sullivan has this thorough and link rich post describing Google's new program that enables its Book Search partners to sell works online. (Note the messages in BOLD CAPS, and read all the links.)

I noticed that Denise Howell, among others has added some comments to Shelley's post (and posted about the issue on Bag & Baggage).

I encourage our intellectual property lawyer audience to consider participating in the conversation in Shelley's comments section.

I've been intrigued by these questions, for which I have not found good answers, since I first saw my full text posts appearing on pages at Bloglines in a way that someone could have easily considered to have been my actual blog.

What I've found that interests me most is that there is an technological argument that "repurposing" full text RSS feeds involves a form of linking rather than a reproduction of the type classically associated with the current copyright law. If that is the case, then it may be that the early web page framing cases, rather than the copyright laws, provide the legal framework for analyzing these issues. To the extent that we call can learn more specifically what is actually happening when feed items are aggregated or repurposed, the discussion of the legal issues will become more focused and more helpful.

At this point, I think it's safe to say that most authors will have at least a visceral reaction to seeing someone making money, by ads or otherwise, by repurposing or publicly aggregating their feed content. On the other hand, most bloggers would probably give permission if asked.

Unfortunately, as Denise noted in her comments to Shelley's post, resolution of these issues in the courts could take years and still leave us with open questions. In the meantime, we all still need to make decisions about how to address these issues. In a nutshell, that points out one of the growing problems with a legal system 1.0 in a web 2.0 world.

Unfortunately, today's ad programs make splogs a very attractive away to make money off advertising on blogs. I recently met an SEO expert who explained to me how splogs are perfect vehicles for ads. It's annoying and irritating that sploggers probably are making more money off splogs than bloggers are making from their blogs.

A number of people have brainstormed ways to combat the problem.

Perhaps the most interesting commentary is from Jeremy Wright, who raises a number of interesting and insightful questions.

I recommend reading and thinking about Jeremy's post and taking a look at some of the other commentary on the issues raised by splogs.

Then, I want us all to think about what it means to apply a Creative Commons license to our blogs and whether it is fair to expect that the Creative Commons organization take on a leadership role in fighting splogs by assisting CC license users in enforcing the terms of the CC licenses? In other words, as I've often asked, what is the practical value of the CC licenses or, as some have suggested, are the CC licenses primarily a marketing effort for the CC licenses?

I don't know the answers to these questions, but I would like to see the CC group more out front on the issue of splogs.

I recommend the article to all who routinely apply CC licenses without reading them (I mean reading the actual licenses, not just the summaries).

I urge people to consider especially the points Erik raises in section 2 of his post. What do you really intend "non-commercial use" to mean? Is is "commercial use" when a blog is running an ad program or otherwise generates revenue? Whose responsibilty is it to enforce the provisions of these licenses? Should the Creative Commons organization take a stronger leadership role in providing interpretations of the license provisions? Well. the last one is an easy one - the answer is "yes."

As I've said before, the use of CC licenses probably will be a good thing in a general sense, but blithely applying CC licenses without considering the consequences is still not a wise move, legally or practically.

I appreciate Erik's contribution to the debate. He may or may not be right on every issue, but he's asking some of the right questions. I still question whether the Internet community is looking critically enough at the CC licenses or whether too many people see the CC licenses as a way to join a cool club. As always, I recommend reading the discussions we had on Between Lawyers about whether we should apply a CC license.

He also has a great sense of style and humor when analyzing legal issues.

Here are two recent examples.

1. Professor Lenz dissects some comments by John Dvorak about the CC licenses. In the process, he both points out a few flaws in Dvorak's arguments (to put it mildly) and succinctly explains some of the key elements of the Creative Commons licensing approach.

2. He has a great, concise analysis of a Microsooft patent application for "custom emoticons." You should read the whole thing, but here's the money quote:

"While the patent office should reply with a big custom emoticon for 'Rolling on the Floor Laughing' to this application, they probably won't."

Shelley, like me, lives in St. Louis, and we both have that Missouri “Show me” attitude toward things. However, I was surprised that the discussion Shelley initiated a while back and the conversation we at Between Lawyers had about applying a CC license drew nary a notice from the CC group.

Shelly’s latest effort, called "What We Hear" did raise the CC people from their slumber and I highly recommend Shelley’s post and the comments to it as a great resource on some of the practical issues involved in the CC licenses.

I think that Shelley by far has the best of the argument. As I mentioned when Between Lawyers decided to adopt a CC license, there is a disconnect between the way the CC licenses are presented and the actual language of the licenses. It is important to realize that the licenses tend to favor publishers and re-users rather than authors. That’s OK, but it’s not clear that everyone who applies these licenses understands that they do have legal consequences and that the licenses are more than a badge showing that you are a member of the CC club.

That said, there are also legal consequences of not having a CC or other kind of license. Those consequences might be OK with you, or they might not. For example, I prefer not to have a CC license on my personal blog. The CC licenses do not work for what I intend there and I prefer to retain as many rights as possible.

As Shelley points out, if you post a graphic showing use and non-use of CC licenses and suggest that the non-using world "is yet to be liberated," it raises some expectations about what's in the licenses, the benefits of them and the type of help you are likely to get from the CC in the case of disputes. As in all things, it's best to read the licenses carefully rather than to assume what they say from descriptions and summaries.

Shelley and others have asked us why Between Lawyers does not remove the CC license from our blog, especially in light of the lack of response from the CC group to issues we raised. That’s a fair question. The answer is this: we wanted to discuss the CC licenses, decide whether to apply one, apply it and report on our experiences – good and bad. That is the essence of our public CC experiment. If we document our experience, it will help others make sound decisions about the CC licenses.

Of the five of us, I am the one most likely to want to yank the CC license, but I’m committed to the experiment. I’m also encouraged that CC spokespeople are providing comments on Shelley’s blog.

As we’ve said, there are substantial benefits to the Internet community through standardization on a limited number of content licenses. CC is a laudable experiment in that regard, but CC also has some responsibility to spend some time helping licensees understand the practical impact of the licenses and determine how to treat specific issues that arise. If they do not do so, they need to "show me" how the CC licenses "liberate" me.

Shelley’s efforts have contributed greatly to the public good and I hope that the CC group answers her call. Even better, it'd be good if this leads to a larger discussion of a wider set of issues involving these topics.

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.

Birdfood for thought.

[Update:] Though Shelley makes some excellent points and she and I have been having fun, I had to go and get a little lecture-y about the risks of this kind of thing. And you should read the whole comment thread.

Ouch. Maybe this was just a misstatement. (With all due respect to Mr. Chizen, whatever your views on P2P networks there's no getting around the fact the sense of this sentence could have been greatly improved by the addition of just one word, e.g.: "unlawfully share intellectual property," or, better and shorter, "share our intellectual property." A great deal of the intellectual property being shared on P2P networks is there because its creators want it there. Also problematic is the fact that based on this phrasing Mr. Chizen might be confused about just who is doing the sharing.) But misstatements like this from CEOs of major technology companies are just...sad. Maybe the rethink(ip) folks are right that in this day and age intellectual property law needs to become part of the standard educational curriculum.

Let me flip Ernie's Robert Frost reference. The selling point of the CC license is that it creates a "road more traveled." The benefits of this approach to licensing come from its widespread use.

Lawyers are known for always saying "no" to new things. Part of what Between Lawyers is about is showing ways lawyers can say "yes."

Ernie says:

"I say we go with the CC license and work from within that system to make it better, more understandable and more predictable. If lawyers aren't willing to give it a shot, then why would ordinary artists and creators? Copyright laws are out of synch with reality. We need a new approach, and the best proposal so far is the CC license. It's not perfect, but it can be improved and we should improve it. But first we should adopt it."

As I've said, I like the direction the CC licenses are taking us. I like the directions the Open Source licenses are taking us. It's important to look at what the licenses say and push for changes that will improve them. My own history shows that the CC group will listen to constructive criticism and make reasonable changes.

Let's help push this approach forward. Count me in.

Marty, I'm feeling like we're reaching a consensus here. What's your call? If you're in, we can get the license applied to this blog and maybe write a bit about that process. I believe that the general rule would be that since Denise recommended that we adopt the license that she volunteered to be in charge of implementing it, right?

We'll have to talk about how far out of synch copyright law is with real world behavior one of these days.