Creative Commons Confusion

Adam Curry posted a classic edition of the Daily Source Code today in which he tells the story of his recent lawsuit against a Dutch tabloid’s editors. But more than that, he goes into a great deal of personal history as somone trying to do good while in the public eye. The lawsuit, by the way, was over unauthorized use of Adam’s photos posted on Flickr with a Creative Commons License. The program was enough to remind me that I’ve been wanting to post these thoughts about the misunderstandings of copyright and licensing.

As of 1976 (here in the U.S.) anything you write or publish is automatically covered by copyright law. No longer do you have to put that little © symbol on your works, although it does make it clear who the copyright holder is. You don’t need to register your copyighted works unless you want to litigate, and even registration can be deferred until that time. Copyright protects your rights and (supposedly, but no longer very well) the rights of the commons. The latter is an important subject, but not the one I want to address today. For the sake of this discussion, just consider the aspect of copyright that reserves for the copyright holder certain rights.

A license, on the other hand, is a granting to others some of those rights normally reserved for the copyright holder. A license never strengthens your rights to what you’ve created. If anything it weakens those rights by giving something to someone else. The Creative Commons licenses — and there are many varieties — are an attempt to clarify and simplify licensing, particularly in cases where the licensee is anonymous: a person or persons among the commons. A Creative Commons license grants certain rights to individuals or organizations without the copyright holder (the licensor) having a clue as to who those individuals or organizations might be. Creative Commons is a brilliant idea, not only because it allows granting of limited rights to the commons, but because the licenses are generally straightforward and don’t require lawyers or even phone calls to make clear what’s allowed and what isn’t.

Contrary to what Adam suggested, however, I don’t believe his case in The Netherlands is a test of the validity of the Creative Commons licenses. I haven’t read the judge’s opinion — it’s probably in Dutch anyway — but from Adam’s comments it seems to be just a copyright case. Again, the issue here is that a Creative Commons license does nothing to protect a copyright holder from illegal use of his/her intellectual property. If anything, Adam’s rights in his photos would have been more secure had he not opted to publish under a CC license.

So remember, when you publish under any of the Creative Common’s licenses, you’re not providing yourself any additional protection. What you’re doing is granting rights to others.

Update: Looks like people who know more than I do about this (i.e., lawyers) may disagree. A post on Groklaw entitled Creative Commons License Upheld by Dutch Court translates the Dutch ruling. Still, I don’t think this was a legitimate challenge of a CC license. No specific provisions were attacked.

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