Dan Bricklin of Satn.org recently posted some thoughtful concerns about the Creative Commons licenses, in particular their common warranty clause.
Dan’s concerns take two forms: (1) Creative Commons should do more to alert licensors to the details of our warranty provision; (2) the warranty provision is too strong for the average copyright holder — that is, it makes the licensor promise too much about the legal legitimacy of the work he or she wants to license.
(I’ll start, as I often do, by cautioning that what follows isn’t legal advice. It’s an explanation of our form licenses and the policies that led us to draft them as they are.)
Point number one is well taken. After a fresh look over the site and our Commons Deed, I think we could explain the warranty provision in a more “human-readable” way. We’ll work on it — thanks for bringing it up.
I think point number two — that the warranty provision is too strong — deserves a little more discussion.
Dan says, “The Creative Commons licenses say, in effect, ‘After checking, I guarantee no one will sue you if you copy my work, with some restrictions.'”
But the licenses aren’t quite so extreme, and the “with some restrictions” part matters. Look at the text (Section 5a):
“Licensor represents and warrants that, to the best of Licensor’s knowledge after reasonable inquiry . . . Licensor has secured all rights in the Work necessary to grant the license rights . . . “
The key word is “reasonable.” It limits liability. When our licenses were still in draft, they contained no such qualifier. After many of you wrote in concerned about that, we made it more lenient by adding the “reasonableness” clause.
I agree with Dan that using Creative Commons licenses is serious business, and I would encourage any potential licensor to think hard about what he or she is doing (and yes, if in need of individual, context-specific advice, to consult a lawyer). But I think that our warranty clause helps people take licensing seriously. When you consider that (1) anyone in the world may use our licenses (2) at no charge, a reasonable promise about the source of a work seems like a small price to pay — especially to all those licensees out there. Someone has to carry the risk, and just because someone’s a “casual” weblogger doesn’t mean that his or her readers should bear it. Right?
That said, I’m happy to have more discussion on the subject. I’m open-minded.
While we’re on the subject, and with so many lawyers reading this, are the quotes I used in the Pamphleteers and Web Sites essay I mention above fair use? After much thought and looking, I think it is, but I don’t have access to case law… In which cases is it and is it not? It is just such worry that would keep me from making any warranties. I decided to take a risk on my web site without knowing for sure, since the damages would be so low, and it was for non-commercial academic use for something I thought was important to say. I wouldn’t warrant that if someone wanted to re-use it in their book. I don’t want to have to put carve outs all over my website about “I warrant this but not that”.
I think that the material many bloggers refer to is easy for a professional creating an academic or commercial work to track down and obtain rights for or determine fair use — certainly much easier than for the blogger. Since fair use in non-commercial situations is different than commercial, this is really set to confuse the normal blogger who may think they are OK, and with the common Attribution license isn’t restricting this to non-commercial. Larry Lessig’s story about the Simpsons was intended to scare people and it did. The need we licensees have from bloggers is (especially those that are difficult to track down, are anonymous, etc.) to know that their part is copyable. (Of course, on the other hand, what good is a warranty from an anonymous person?) For the researchers in the future, reading blogs (of New Hampshire primary?) like we read the pamphlets of Revolutionary times, we need to be able to publish the original parts. (See my Pampleteers and Web Sites essay.) The fact many bloggers like to paste in quotes (sometimes too long) from publications is not a problem for licensees who can deal with those quote easily. Maybe we need a way to indicate what is believed to be original (and therefore easy to use with a CC license, providing warranty or not) and what comes from others. (Of course, not everybody knows what’s copyrightable, like compilations…)
Using the works of others is a brick by brick process. It would be nice to have something that did it all for the licensee, but maybe the parts should be broken out (grant, warranty of reasonable inquiry) to be more practical for the wary casual writer. I wouldn’t want the fear of one mistake tainting a work make an important (in hindsight) author neglect to at least let their part of the work be copied without needing to negotiate with them or their heirs.
Would it really conflict with cc’s goals to offer a license, or a set of licenses, that are analogous to a quitclaim deed?
One of the main goals of the Creative Commons licensing project is to remove as much legal doubt as possible from the re-use of creative materials. Another goal is to minimize the amount of rights-clearing that must go on in the chain of creativity. Having the original licensor promise to clear these rights — within reasonable limits — furthers these goals. Letting the original licensor pass that risk on to all licensees undermines these goals; it creates a situation in which every licensee must in fact do his or her own due diligence for every single transaction. What good is the license if that’s the case? “Feel free to use my work provided you can prove that I’m not passing liability on to you” — that seems unfair, and tremendously inefficient.
So some sort of warranty is crucial. If we can come up with a way to soften our current warranty without passing on too much risk to licensees, then I’d be open to doing so. (I have trouble imagining how this would be done, since, again, someone must bear the risk.) But the idea of removing any type of warranty whatsoever isn’t compatible with our goals.
Well, the last thing I want is to hurt the “some rights reserved” movement, especially over a policy that, as these posts show, has become a source of concern to many of you. The timing of this discussion couldn’t be better, in that we’re about launch a new “Discuss” space on this site dedicated to communty-based development of proposed changes like these, new license options, etc. So, what I’ve argued above notwithstanding, I’d like to at least put this warranty issue on the table, both in our internal discussions here at Creative Commons and in our forthcoming discussion space.
Glenn Otis Owen: “One of the main goals of the Creative Commons licensing project is to remove as much legal doubt as possible from the re-use of creative materials. Another goal is to minimize the amount of rights-clearing that must go on in the chain of creativity. Having the original licensor promise to clear these rights — within reasonable limits — furthers these goals. Letting the original licensor pass that risk on to all licensees undermines these goals; it creates a situation in which every licensee must in fact do his or her own due diligence for every single transaction. What good is the license if that’s the case? “Feel free to use my work provided you can prove that I’m not passing liability on to you” — that seems unfair, and tremendously inefficient.
“What good is the license?” What a surprising question.
Without the license, you can’t use the work. It’s as simple as that.
“Passing the risk on to the licensee, that seems unfair”?
No.
The licensee gets to use the work for free. Asking for any kind of guarantee on top of that seems to be somewhat cheeky. I, as someone who donates his works to the “Creative Commons”, have to assume uncalculable liability to an unknown number of anonymous licensees, to compensate them for their friendly willingness to use my work?
You must be joking. I’ll be damned if I’m going to pay people even one dime for the privilege of having them use my works.
Glenn Otis Owen: “So some sort of warranty is crucial. If we can come up with a way to soften our current warranty without passing on too much risk to licensees, then I’d be open to doing so. (I have trouble imagining how this would be done, since, again, someone must bear the risk.) But the idea of removing any type of warranty whatsoever isn’t compatible with our goals.”
Your goals seem to be not compatible with mine as an author. The solution to that is easy. I have removed all reference to your licenses from all of my works, replacing them with (for the time being) “all rights reserved”.
Maybe I’m not a lawyer and don’t quite understand what is going on here, but it seems that if the CC license says: “I’m putting this stuff under this license, so you are free to use it” while not also saying: “I’m pretty sure I haven’t stolen this stuff from anybody else” it wouldn’t be much good. Even saying “I’m pretty sure” seems like a concession to me. Without a clause saying that you are free to use this stuff BECAUSE I don’t mind AND BECAUSE it is my work, what good would it be? Without is, the license would just be saying “I’m not going to care if you take this work, but who knows where I got it from, so somebody else might care – but you’ll have to check that out yourself.” That wouldn’t be as helpful for the person wanting to use the work, and it wouldn’t go along with the CC mission. I think that somebody putting stuff up under the license should have the responsibility to say to others: “this is mine, and you can use is according to these guidelines.”
The core problem is that copyright infringement is a strict liability offense. If you copy a copyrighted work, without authorization or a defense, you’re liable for infringement, regardless of whether you knew you were copying or unauthorized. “Innocent infringers” might face a smaller damages penalty (as low as $200 per infringement, versus willful infringement, where damages can rise to $150,000), but they’re still on the hook.
The existing set of CC licenses does one kind of burden- and risk-allocation — if you see one of these licenses, you know you’re free to use the work on those terms and can hold the licensor accountable if the license’s assertions are negligent. But that’s not the right choice for every licensor.
I agree it would be valuable to have licenses that made the opposite choice too — a mere quitclaim that asserted only that the immediate licensor would not assert rights against one who followed his license terms. The no-warranty license would pass along the rights, and only those rights, that the licensor had to confer, leaving to each potential licensee the decision whether the work was “safe” for re-use. That license gives less assurance than the current CC set, but it removes one potential plaintiff from suit, so in many cases it’s better than no license at all.
My text is very hyper, and my recent photographs are clearly mine, having stopped linking to images as of the beginning of the year. But blog template puts all past material under CC license I chose. Hmm. Doesn’t look like it’s working if it isn’t obvious to reader as I might think it was that I routinely quote extensively. Shouldn’t it be the responsibility of the licensee to figure out this difference, something “via” someone? Is there any particular worry if the licensee preserves the reference of quoted material as I posted it? Is use of pseudonym ok? Many of these issues are brought out above, but mention them again, as there are nuances of difference in choice of words.
Glenn, that’s great news. I think the “some rights reserved” movement is very important. Extending it to cover even more cases is something the future will thank us for. I’m sure there are a wide variety of cases we should start looking at for easing the burden on re-use. The “all or nothing” approach of the initial licenses is a great start, and will handle lots of traditional material. With the proliferation of new types of media creation, from blogs to postings from cell phone cameras, we’ll need to think even broader and into the whole gathering process of expressive material.
I have blasted this warranty clause recently on my blog. I think it should be deleted immediately from all CC licenses.
Your argument that the CC licenses may be used by anyone at no charge is beside the point. This has really no influence on the balance of interests between licensor and licensee.
The real point is that the licensees pay nothing to licensors. So if that warranty has any economic value, people actually end up paying a large number of anonymous licensees for the privilege of having their content used by them.
This is not fair.
Please adress this issue in a more thorough way. It has the potential to completely ruin any good will Creative Commons has enjoyed with creators. I for one am not pleased.
Aren’t we talking about balancing unfairness to the blogger with unfairness to the reader?
A blogger who posts copies another person’s copyrightable material is going to be liable for copyright infringement, no matter what, unless that copy is a protected “fair use”. True, the blogger may not have the legal ability to make a sound judgment about whether the use is fair or not, and that’s unfair to the blogger. Copyright law is so vague and complex that even many attorneys couldn’t predict it either. Bad laws? Many think so.
However, the posting blogger certainly does know whether or not her post is her original writing or whether its been copied from someone else. Should that blogger be infecting her unsuspecting readers with copyright liabilty by falsely implying that she has the right to allow them permission to copy it when she really doesn’t? Isn’t that unfair to the reader?
I think a huge problem for many bloggers is that they have no concept of how dragonian the copyright laws are…or what their own liability is for using other’s work (regardless of whether they pass liability on to others).
On the other hand, as a general matter, short quotations for non-commercial use usually are considered “fair use” although that is NOT a universal rule and depends, in any particular case, on the length of the original work and the impact on that’s author’s revenuew, and other details specificied in the law at 17 USC 107.
(Warning: long post. Summary: Share your own information, but let each beware what he does with others’; i.e., permissive input, strict output.)
In favor of the quitclaim license, it is possible that the licensee might be in an entirely different legal jurisdiction, or be in a different informational context, or the like. Suppose I quote from X’s movie on a blog, while reviewing it (fair use). I license to Y, but Y then makes a movie that includes a close-up shot of my blog (probably not fair use). Or suppose I make drawings in a country that has signed some but not all of the usual copyright treaties, and I can legally use the image of a certain cartoon rodent, but some (most) of my potential licensees cannot. So the question becomes: Can I, when choosing a license, anticipate all the possible reuses of my creation and determine that no currently-existing (or prospective corporate) third party might have grounds to sue my licensee? Doubtful.
I therefore favor something along the lines of Ewan McNeill’s quitclaim proposal above: “I warrant that my use of third parties’ material is legal, by license or by fair-use law” — and then construct the licensed material in such a way that a reader can see what was used and how — “and that, if you did the same in my jurisdiction (namely, _______) and with the licenses I hold (namely, _______), you would be legal also. But I cannot warrant that your jurisdiction would treat this case the same way. I license you to redistribute my original content, but your fair use of others’ content is your own responsibility.”
Rick Prelinger’s remarks highlight a connected (and potentially nasty) problem. Suppose I legally create and license some work, which is then reused by a licensee who does break laws or commit torts in the process. Maybe he does so by aggregating short, fair quotes from film reviews (including mine) to assemble extended, plagiarized pieces of script. (Or maybe he uses my remarks about the postal system as the springboard for a long treasonous rant about ubiquitous government thugs, in which case there’s no third party and this is a completely separate issue after all.) Whatever he does, he gets his bum hauled into court, and it comes up in the proceedings that I published it and licensed it to him! Ack. Maybe the license needs to run, “The fact that you may derive a work from my original material is separate from any other legal aspect of your doing so. This license guarantees only that, under stated conditions, I myself will not take action against you for this use. Other legal (or financial, or social, or (heaven forbid) psychological) consequences remain solely your responsibility. By using material under this license, you agree to waive all claims against me and hold me harmless in any proceedings arising from your use.”
I just became aware of this discussion, and I’d like to add my voice to those who are concerned about the issue. I’m quite sure that most contributors to the opsound project are not at all aware that they’ve agreed to take on these liabilities, even though they’ve been strongly encouraged to review the licenses carefully. The community of musicians involved with the project represent a fairly wide range of views on copyright issues, and their work may often include samples or elements of other material, so the questions raised above are quite keenly relevant. I’m personally not sure that it would be fair for me (or opsound) to recommend that some of these artists in particular adopt a license that may add to their liability. It’s my hope that you’ll seriously reconsider the warranty clause.
The CC warrantee seems to make linking more dangerous than it has to be. If I publish a link on my website to something that is later found to be contraband, I can avoid liability by taking it down when I receive a notice. But if I publish a link on a website covered by the CC warrantee, I assume liability in advance of getting a notice.
I’m particularly interested in SMIL documents containing a list of URLs. If one of the URLs is to an item that is found to be an unauthorized distribution, and I published the playlist unde a CC license, I am liable.
This isn’t an abstract point. Because of the prevalence of samples in current music, it’s hard to avoid trespassing on somebody or other’s domain when you link to audio files. So how should people who work with music proceed?
Perhaps it would be useful or instructive to look at the typical warranty under ‘all rights reserved’ and make sure that the ‘some rights reserved’ warranty does at least as well. Or is that negotiated per-licensee? Is it standard for one party or the other to assume the risk? The CC licenses don’t have to be perfect, they just have to be better than the standard ones (which should be easy since they’re so bad, right?).
From reading through the comments it seems to me that there is a need for a licence that says basically “you have permission to use my work (subject to conditions), and based on reasonable investigation I believe everything except the things I’ve clearly marked as taken from other sources is free from other claims”.
The difference being that the licensor can exclude things from the guarentee by, eg, setting them off in block quotes, attributing them to another person, linking to the source, etc. Presumably the licensor thinks that such uses are probably fair use for them (or covered by a non-commercial-use licence, etc) but isn’t willing to guarentee that to the world, for every possible use, without payment. I’m certainly reluctant to make potentially risky guarentees to the world without payment, as it appears others are.
The potential licensee can then be certain what they still need to persue rights on (or verify is covered by another CC licence, or is fair use, etc). And if they’re happy they have the right to use the quoted content, can be sure they have the right to use the rest of the original content too.
This seems, to me, a fairer distribution of the risk in a no-payment-received situation.
Perhaps its hard to tell what is what and which is which. I am using creative common license right now, but I am not fully satisfied. The whole legal thing makes the creativity look so confusing.
We don’t live in a perfect world. Where we are not secure by the unwrongful deeds and the unfair use of someone else’s works.
As of now, the lawyers are costly and with limited options available for the bloggers, its good that creative commons took a step ahead. But the debate is on. Dan’s view of this is quite judgemental where as Glen and the guys took a step further and went and created it and Glenn is quite open to discuss it as well. Which opens new hopes for adjustments and betterment of the license.
In the mean time, I’ll have to carry on with creative commons.
A CC public domain license adds clarity to the situation surrounding a work’s copyright status. It’s effectively mute, though, regarding other rights in the bundle. We’re pleased to warrant the PD status of our films. We have little or nothing to say (and nothing to warrant) about issues that may arise in the context of different uses, such as rights of privacy and publicity and defamatory use. I’m not sure where to begin educating the public on sticky non-copyright issues that affect the reuse of rich media content, especially film and video. But in order to tap the world’s rich audiovisual heritage, we need to start somewhere.