Creative Common Headache?

May 22, 2003 6:44 PM

Creative Commonslicense: could it force you to suffer for your users' sins? Dan Bricklin says the liability clauses could do just that. MonkeyX says the benefits outweigh the risks. The Commoners respond. Ming the Mechanic and others prefer an alternative scheme: Primarily Public Domain, in which all content is donated to the public domain by default unless otherwise specified. And then there's plain old-fashioned copyright, like MeFi. How do you limit the incorporation of your cyberself?
posted by hairyeyeball (18 comments total)

I have an obvious vested interest in this, but I think Bricklin brings up some important points that need to be fleshed out. Personally, I'm ok with the way things are, because when you license something under a CC license and I want to re-use the material, I have to trust that you really were the creator of it and that it was original material. If I get sued later on, I don't see why it should be my problem for finding and using your work that was released under a license. If someone found a bundle of code in Apache that was lifted from IBM, should every webmaster running apache get sued, or should the application authors that did it?

That said, I've been looking at the primarily public domain site for the past couple days, even going as far as emailing the creator and I still don't quite get what their definition means:

"Materials are deemed in the public domain, except for any express restrictions included in such Materials. Materials are posted with respect for every party's proprietary rights."

To say something is in the Public Domain except some parts is to say something is not in the Public Domain, because the PD is a fairly well-defined and rigorous area where copyright is completely given up. I don't understand how something can be deemed "mostly" public domain, because it sounds like being "mostly" pregnant to me.

Also, MetaFilter is under full copyright because I had no choice in 1999 when I built it. If I were launching it today, I'd put a license under all posts, for sure. I've talked to a couple lawyers about moving to CC licenses, but the best method would require everyone that has ever made a comment to give their consent, which is impossible since many people stopped visiting long ago.
posted by mathowie at 7:06 PM on May 22, 2003

These issues confuse me; mainly, I guess, because I don't understand the reality of the legal issues that Matt brings up. As far as I'm concerned, I couldn't care less what people do with what I create and put on the internet...writings, music, graphics, software. In my mind, even things like open source licences and creative commons licences go too far, because I really don't care. Want to download one of my songs and remix it? Go for it, I don't care, I've got bigger fish to fry.

But it's not as simple as that, is it? Could someone who understands this stuff explain (preferably in monosyllables) why I would want to attach some kind of licence of copyright to works of mine that I consider freely available to all?
posted by Jimbob at 7:34 PM on May 22, 2003

If I get sued later on, I don't see why it should be my problem for finding and using your work that was released under a license.

You can't give something away that's not yours. Although the intent of the party that copies may be taken into account to determine damages, copyright infringement is a "strict liability" tort. The plaintiff must be the holder of a valid copyright and must show unauthorized copying. If the license wasn't valid in the first place it will not even be considered.

The CC licenses and the debate surrounding them has, IMO, been a great step forward in realizing a more reasonable copyright scheme. It's not perfect but it progress.
posted by anathema at 7:57 PM on May 22, 2003

Jimbob - You wouldn't. If you really want it available to everyone. *But*, consider this - Even if you don't put a copyright notice on it, you *still* own the copyright. This is were the CC licences come in very handy. You can expressly, and unambiguously make it freely available to all. Or, and this is the really cool part, you can make it "sort of" available. As in: My Zion Park pictures are public domain and free to use in anyway. But my zoo pictures are only free to use if you don't use them commercially, since the zoo won't allow that.

Creative Commons kicks ass.
posted by y6y6y6 at 7:59 PM on May 22, 2003

So, y6/0.333, you're saying that if I don't explicitly attach a CC licence, the standard copyright applies and by default use of my material is restricted? I thought one of the pillars of copyright is that "if you don't actively defend it, you lose it". Wouldn't copyright be annulled simply because I don't try and sue the "infringers"?
posted by Jimbob at 8:13 PM on May 22, 2003

Jimbob, you are thinking of trademark law. Copyright vests automatically and remains regardless of how the copyright owner chooses to police the work.
posted by anathema at 8:23 PM on May 22, 2003

Yes thanks anathema...after I posted I thought "hmmm, maybe I getting confused with trademarks again".
posted by Jimbob at 8:31 PM on May 22, 2003

Also, if you don't do something explicit people will assume you don't want them to use it because that's the mindset most people have these days unfortunately. So they won't take it even though you don't care.

And it doesn't have to be a CC licence. But you do have to release the work explicitly. CC just makes that easy.

After I started putting the CC licenses on my stuff it's use exploded. It's very satisfying to see people doing cool things with stuff that would otherwise just be taking up space on my hard drive.
posted by y6y6y6 at 8:31 PM on May 22, 2003

Well, it is actually a bit more complex than to say that copyright automatically applies to everything. While it is true, actually getting more than a token in damages requires registered copyright. In addition copyright battles these days seems to be more of a game of financial chicken where money tends to win regardless of who is technically right.
posted by KirkJobSluder at 8:43 PM on May 22, 2003

It seems to me that the warranty mechanism is the only means a licensee has of knowing that the person granting the license actually has the right to do so. Removing the warranty would undermine the entire CC system, first in theory then eventually in practice. CC licenses would be meaningless, because most of the legal force behind them would be removed.

To Bricklin's concern about webloggers running afoul of fair use and facing legal penalties: Those issues would exist regardless of the existence of the CC licenses. In fact, the consequences would likely be more severe *without* CC. Most webloggers, in the absence of a CC license, would resort to good old-fashioned copyright, and would face the legal penalties associated with claiming copyright on something that isn't yours -- which are likely to be somewhat stiffer than those associated with a vague "breach-of-contract" that might be brought against a violation of a CC license.

I think the practical upshot is that maybe CC licenses are not well suited to the cut-up world of weblogs. I see no reason why the licenses have to be neutered to accommodate somebody trying to apply them where they don't belong.
posted by jjg at 8:57 PM on May 22, 2003

KJS, copyright does vest automatically as long as the work meets the statutory requirements for copyrightable subject matter. To even get into court to bring a claim of copyright infringement (which is a different issue) you must register your work. And yes, the timing of the registration can effect what kind of damages you may be entitled to.
posted by anathema at 9:27 PM on May 22, 2003

KJS, copyright does vest automatically as long as the work meets the statutory requirements for copyrightable subject matter. To even get into court to bring a claim of copyright infringement (which is a different issue) you must register your work. And yes, the timing of the registration can effect what kind of damages you may be entitled to.

I guess one of the things that bothers me about how copyright is concieved and actually exists is that there is a big gap between what the law says, and how the law is put into practice. While it is true that the creative work is copyrigted the instant is is fixed in any form, that protection is not very useful without gobs of time and money.
posted by KirkJobSluder at 11:17 PM on May 22, 2003

So, y6/0.333, you're saying that...

So, Jimbob, assuming that 0.333 = 1/3, you're saying that

y6y6y6 = y6/(1/3)

(y6)³ = 18y

y³/y= 18/(6³)

y²= 1/12

y= 1/(2√3) = 0.288675...

and therefore

y6y6y6 = 216 x (1/(2√3))³ = 9/√3 = 5.1961524...
posted by rory at 4:46 AM on May 23, 2003

"that protection is not very useful without gobs of time and money"

This is only true in specific cases, not in general. Not even close. In cases where I have needed to assert my copyrights I've been able to do so with nothing more than a single threatening email. People will wet their pants and curtail use immedietly once you tell them you're going to sue them for everything they have. Even if that's not true.

"y6y6y6 = 216 x (1/(2v3))3 = 9/v3 = 5.1961524..."

No. But that's very close actually.
posted by y6y6y6 at 4:49 AM on May 23, 2003

KJS, copyright does vest automatically as long as the work meets the statutory requirements for copyrightable subject matter. To even get into court to bring a claim of copyright infringement (which is a different issue) you must register your work. And yes, the timing of the registration can effect what kind of damages you may be entitled to.

Now this is interesting, about how you have to have your work registered to even bring a claim of infringement. (What do you mean by saying it's a different issue?) So, if you have to have it registered to derive any real-world benefit (i.e., the insurance of knowing that you'd be able to sue for damages against infringers), what's the point of automatically-vesting copyright? If I don't explicitly register copyright on something I create, and someone infringes on the implicit automatic copyright, I'll get laughed out of court? Doesn't seem fair.
posted by Vidiot at 5:04 AM on May 23, 2003

I use the CC "some rights reserved" variant on my web stuff, primarily because it asks that I get attribution when folks copy me. I was concerned about the issues that Dan brought up, but in the end decided the benefits outweighed the risks. Of course, IANAL, so I could be wrong.

Basically, I chose it because it seemed to match what I wanted people to be able to do and didn't seem as if I was saying "you can't copy."
posted by tommasz at 5:20 AM on May 23, 2003

5.1961524 - the new universal constant for the rate of decay of copyright enforcement?
posted by Jimbob at 5:55 AM on May 23, 2003

The way I think PPD works is that, if you, say, put a page on my wiki for comments, you can specify how you want it used: modify freely but don't use commercially, like that. The blog format isn't set up so well for that, as MM points out in the case of MeFi.

The idea of having to learn something about the tawdry legal profession just in order to yack and be yacked at on my blog is, of course, distasteful, but what if, say, Beavis and Butthead's creators catch some of my commentors imitating the two adenoidal youths ("Dude, this site is totally GAY!") and decide to hold me responsible, as the licensor of the content? I think commercial sites do some sort of disclaimer on, e.g., reader letters: "These letters contain the opinions of our feeble-minded audience and we accept no responsibility for them." I wonder if that wouldn't be useful for a place like MeFi, where you can't possibly be expected to exercise editorial control over what people say ... like when I accuse Jimbob of being a notorious thespian and libel him egregiously. The fact-finding on that charge could take years.
posted by hairyeyeball at 10:07 PM on May 23, 2003