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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.
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.

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Category Archives

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August 25, 2007

If It's All About Respect, Why Do They Look So Foolish?

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Posted by Denise Howell

So — what should Nixon Peabody have done when its embarrassing firm non-theme song made its inevitable way onto the Web? (And into the atmosphere of countless homes and offices, as its hapless victims hum and mutter it against their will and better judgment?)

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.


Would make for more congenial search results and Wikipedia copy, at any rate. (But then again, at least the firm has a Wikipedia entry.)

Comments (1) + TrackBacks (0) | Category: Blawgs | Copyright | Creative Commons | Ethics, Decorum and Manners | Intellectual Property and Technology Law | Law Is A Business | Law Practice Management | Leaks

July 10, 2007

Using Photos and Videos and the Role of the Creative Commons Licenses

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Posted by Dennis M. Kennedy

Denise Howell raises some questions for bloggers and others who embed YouTube and other videos into their blog posts. Even better, she offers some answers to the questions in her post "Embedding a Headache."

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.

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

March 15, 2006

January 21, 2006

RSS And Copyright, The "No" Example

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Posted by Denise Howell

Though I think there's the possibility an implied license argument could prevail in the right case(s) involving syndicated material, I don't for a second think it would fly in circumstances where the feed is automatically provided by a third party host, and it communicates applicable Creative Commons license commercial use restrictions. See (or more accurately, listen to) Adam Curry's Daily Source Code #320. What do you think?

Comments (0) + TrackBacks (0) | Category: Blogging Legal Developments | Copyright | Creative Commons | Participatory Law | RSS

January 18, 2006

October 25, 2005

Will the Creative Commons Licenses Be a Weapon Against Splogs?

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Posted by Dennis M. Kennedy

Spam blogs (splogs) are a growing problem. A good number of them grab the content of other blogs and copy it on the splog. It's annoying and irritating.

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.

Comments (1) + TrackBacks (0) | Category: Creative Commons

September 19, 2005

-NC Creative Commons Licenses Considered Harmful

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Posted by Dennis M. Kennedy

Erik "Eloquence" Moller has a critique of the "non-commercial use only" Creative Commons licenses in a post on Kuro5hin called "Creative Commons -NC Licenses Considered Harmful." Be sure to read the extensive comments to the post, too.

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.

Comments (3) + TrackBacks (0) | Category: Creative Commons

July 29, 2005

Lenz, Creative Commons and Emoticon Patents

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Posted by Dennis M. Kennedy

Karl-Friedrich Lenz is my favorite commentator on the Creative Commons licenses and has been a big influence on my approach to the licenses.

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."

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

June 13, 2005

Shelley Brings the Creative Commons People Out of Their Shells

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Posted by Dennis M. Kennedy

As we’ve mentioned, Shelley “Burningbird” Powers raised a number of excellent issues about the Creative Commons licenses and their interpretations. As I’ve mentioned on several occasions, it is easy to draw the conclusion that the CC licenses are more of a marketing effort for CC than a pioneering legal effort because the CC group tends to stay silent about practical questions involving the CC licenses while running victory laps every time a celebrity adopts a CC license or the number of licenses reaches another milestone.

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.

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

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

May 21, 2005

Sincerest Form Of Birdery

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Posted by Denise Howell

Shelley Powers has a new theme that rings a bit familiar. What do you think of her interpretation of the Creative Commons license we applied to Between Lawyers? If she's wrong, does she have a good parody argument? If we and/or Corante wanted to make sure the Web does not suddenly become a uniform, 3-column, red-white-and-gray place, would some minor adjustments to the notice announcing the BL CC license do the trick?

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.

Comments (4) + TrackBacks (0) | Category: Copyright | Creative Commons

April 24, 2005

For Want Of A Word

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Posted by Denise Howell

My dad just let me know about this interview with Adobe's CEO Bruce Chizen in the San Francisco Chronicle. There's a lengthy discussion of his views on software piracy (he's "con"), including his hope that the U.S. Supreme Court winds up "making it illegal for companies like Grokster to share intellectual property."

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.

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

April 9, 2005

April 8, 2005

Re: AV Squad/CC License

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Posted by Dennis M. Kennedy

I have to admire Ernie's way of apologetically talking about his simplistic analysis and then offering a very convincing argument. He convinced me.

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.

Comments (1) + TrackBacks (0) | Category: Creative Commons

April 7, 2005

Re: AV Squad/CC License

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Posted by Ernest Svenson

I'll bet I win the award for the most simplistic analysis of the CC issue. My only defense is that I'm not as versed in copyright law as either Dennis or Marty, and I'm not as smart or industrious as any of my fellow BL contributors.

I share the concerns of Dennis and Marty, which I interpret as sensible concerns about how the CC license will be interpreted. But, after reading Denise and Tom's take, I realize that my concerns about the uncertainties of future interpretation are outweighed by my desire to promote the 'CC brand.'

I like Larry Lessig and I think what he has done in creating the CC license is bold and visionary. Of course, it makes tradionalists nervous, and that's completely understandable. We lawyers like to know exactly what rights we are giving up; experimenting with the law is not something we understand. The CC license is too new and too radical to accomplish the laudable task of making good lawyers feel sanguine. Perhaps I'm not a good enough lawyer, or maybe it's just my marginally substantiated belief that adopting a CC license 'is the right thing to do.'

What's the risk? I'm sure there is some risk, and if I let myself get embroiled in calculating the risk of adopting a CC license I could become nervous. But sometimes, as Robert Frost reminded us, you have to take the road less travelled. 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. First, though, we should adopt it. That's my take.

Comments (1) + TrackBacks (0) | Category: Creative Commons

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.

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April 6, 2005

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

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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.

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Re: AV Squad/CC License

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Posted by Tom Mighell

Okay, I'll wade in and offer the insurance defense lawyer's take on this whole CC business. Denise says we need a CC license to protect our content, while at the same time allowing it to be distributed as widely and effectively as possible. Dennis is not convinced; he believes the CC license is poorly worded and confusing. He does not say, however, that we don't need a license to protect our content (at least, I don't think he says that).

That's it? As the son of a mediator, I say we can get this settled and make it home in time for dinner. I don't think anybody disagrees we should have some sort of protections for the materials posted on this site -- after all, we expect to do great things here, right? That leaves us with two choices, as I see it: a CC license, or our own license (no doubt drafted by Dennis). I agree that certain portions of the full license are pretty dense, although I have to say the human-readable summary provides an easy-to-understand (if somewhat incomplete) description of what publishers can and cannot do. If the consensus is that language is unreasonably confusing, we need to either edit it or come up with our own license. Easy for me to say, I suppose, when the most complex documents I draft are settlement agreements and motions for summary judgment.

Should our uncertainty of how a publisher or court will interpret the license prevent us from obtaining a license at all? I don't think so. We won't be in any better or worse position than anybody else with a CC license -- we are all in the same boat from an interpretation standpoint, until some case law comes down that sheds light on what these provisions really mean. If the rest of you IP-types aren't comfortable with that, then Dennis, pull out your tablet PC and start drafting. Otherwise, I say let's go with the CC license.

So there's my vote, and my incredibly simplistic reasoning for it. I'll go back now to my torts, mental anguish, and soft tissue injuries.

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AV Squad: CC License

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Posted by Marty Schwimmer

Re Dennis's questions, is anyone aware of a case where a CC license was interpreted?

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

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Posted by Dennis M. Kennedy

I have some history on the the CC licenses, but I'd like to take a fresh look at them with the idea that we might try to apply one to this blog.

I suspect that I'll end up with agreeing with Denise on which Creative Commons license to apply to this blog (the attribution-noncommercial-no derivs license), but I actually read the license language this evening and it is hard slogging. I wonder how many people who apply the CC licenses actually read the underlying license language.

The CC licenses are also very hard to find on the CC website. A visit to the CC site and blog will make you sympathetic to the arguments of those who criticize the CC licenses as more of a marketing gimmick than a legal standard. I'd like to see more explanation of the licenses and discussion of current issues (e.g., the issues Marty Schwimmer raised about Bloglines) and less self-congratulatory material.

The summary of the license seems good, but, as someone who reviews lots of licenses, I find the actual license text to be really legalistic and hard to understand. There are a couple of sentences in there that I'm still not sure that I know what they mean.

On the other hand, I really like the strong, clear language in the CC's disclaimers of any liabilty that are prominently displayed at the top of the text of the actual license.

I've always liked the idea behind the CC licenses, but I've found the execution flawed. In fact, I was one of the people who complained about the warranty provisions in version 1.0 of the licenses. These provisions were changed to be more favorable to authors. I don't claim any credit for that, but I was pleased that CC looked closely at the issues and made some good changes.

In the earlier versions, I thought that the licenses favored publishers over authors. Now, I feel that they are much better for authors, but publishers will now probably struggle with the dense language of the license grants.

I hate the idea of applying a license when it contains language that I don't fully understand. In the case of the CC licenses, we can't change or clarify the language. I wish I could find more discussion of what is intended by some of the language in the license. For example, in Section 2, there's a notion of no intention to limit a limitation that is really difficult to understand. I don't think you'll find that manner of construction recommended in Ken Adam's excellent A Manual of Style for Contract Drafting. The examples given on the CC website are the least complicated examples you'll run into.

I'd like to encourage more people to read the actual language of the license. I'd love to find out that most people think that this license language is simple and clear and that I'm seeing issues that aren't really there, but I suspect that many others will find the language pretty opaque.

By way of comparison, I like the Open Source licenses because (1) they are not dense with legalese and (2) the Open Source community encourages and keeps up a lot of discussion about the interpretation questions arising in the licenses. The CC website, however, does look really nice.

I'm curious about what others think. As I said, I like the idea behind the CC licenses. If we apply one, I agree with Denise's choice. However, I'm reluctant to apply a license to this blog with provisions that are not very clear. Admittedly, as lawyers, we can easily (and cheaply) write our own custom license (although I suspect that task would fall to me - another reason the CC license has a certain appeal to me).

I couldn't find any examples of how the license might be interpreted in various circumstances. For example, if 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?

More importantly, if someone who wants to republish or reuse our content cannot easily understand what they can do under the license we apply, how does the CC license really help us?

I must admit that I'm not convinced that going the CC route is something that we need to do. However, if we can apply one and get a mention on CC blog, that might be good for enhancing our traffic and search engine rankings. That's definitely something to consider.

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April 5, 2005

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

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Posted by Denise Howell

I'll come out of the gate as someone who favors applying a Creative Commons license to this weblog. As I see it, part of the reason we're writing this is to distribute the information as widely and effectively as possible, without completely giving away the farm as to our copyrights. As long as reuse of our work is reasonable and within parameters we can all live with, everyone benefits. The particular license I like for our purposes is the attribution-noncommercial-no derivs flavor. It tells people we want attribution, and it essentially tells them to get our permission before using our work commercially and/or in a derivative work. It's the closest to full copyright protection of the text-appropriate CC licenses, and I think it strikes a good balance conceptually.

It's once you leave the conceptual realm and enter the realm of execution that things get messy. Shelley Powers and Phil Ringnalda have pointed to some great examples recently of how efforts to locate CC licensed works or communicate the applicable CC license can be imprecise, inaccurate, or confusing. There's no doubt that it's early on in the implementation of tools that are intended to either convey the license the rightsholder wants applied to a particular work, or find works that are available for a desired use. (On the latter point, my take is ourmedia and the Internet Archive are probably more accurate at this point than the Yahoo! CC search.) As Shelley's post illustrates, the process of communicating whether and how a work is licensed is still being hammered out and may be for some time. (Example: Atom 1.0 includes the ability to specify different copyright treatment at the item level in a feed, while other means of syndication apparently don't.) There's also no doubt there are and will continue to be those whose attitude toward the terms of the actual license — or in the case of unlicensed works, the effect of the copyright — is more cavalier than it should be.

Is any of this a reason for us to forego a CC license for Between Lawyers? I don't think so. There is much we can do to help communicate our intentions clearly. We can make sure any license we choose is referenced visually and in our feed. And for our purposes, I don't see us needing or wanting to specify different licenses for different aspects of our work here, but if the need should arise it shouldn't be too difficult to clearly spell out our intentions. (For others who make lots of different media types available from one source, this might be a much bigger concern.) The implementation and communication of licenses online is an area that will continue to develop, and the confusion we see today might well find its way into some legal disputes. But I don't think that's a reason to throw the baby out with the bath water. Instead, if you think it's in your interest to adopt a license (as I do for us here), it's something to to be aware of and take reasonable steps to address.

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

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Posted by Marty Schwimmer

An argument for the Creative Common license is that many disputes over utilization of intellectual property can be alleviated through the use of tagging content with code such as the CC license. If AFP could use code to prevent Google from scraping its headlines, then no lawsuit.

How are the CC license and other coding solutions doing in developing their potential? If bad guys aren't going to program their software to recognize such tags, then is there a point to it?

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March 31, 2005