copyright: January 2008 Archives
For those who are interested, I've made a PDF version of the paper on Creative Commons licences and warranty issues which I referred to in previous postings. It's an assessment paper and consequently wasn't written to the same standard as it would have been if it was for publication. The paper also had to comply with a word limit, so its treatment of some areas is necessarily superficial. I'd be interested in reader's comments.
In my last posting, I talked about the problem of people purporting to license material under a Creative Commons licence, where they had no right to do so. One such scenario is:
So what do you do? You sue A. Except that the terms of the CC licence try very hard to prevent you from doing that. See for example cl 5-6 of the CC Attribution 3.0 unported licence:
This is serious stuff. The version 1.0 licences expressly warranted 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 hereunder and to permit the lawful exercise of the rights granted hereunder ...' The post-1.0 licences basically say 'I give you the right to reuse this stuff, but I refuse to say whether I'm the copyright holder, and if I'm not, you can't sue me.'
The disclaimer and limitation of liability clauses aren't air-tight, or at least not in all cases. If there was fraud involved, they wouldn't be effective. There may be applicable warranties which are implied by statute which the licensor can't contract out of. A court might hold that these clauses aren't sufficient to contract out of liability in negligence.
The paper which I referred to in my previous posting explores these issues in more detail. The deletion of warranties after the 1.0 licences has a lot of history (involving much dummy-spitting and beating of chests), and I don't defend everything that the 1.0 licences warranted -- they went too far in some areas. But I think that the post-1.0 licences have gone too far in the other direction -- by disclaiming warranties as to the validity of the licence, and attempting to contract out of all liability, IMHO they disclaim too much to be useful, or at least, they disclaim too much to fulfil their stated goals.
- A finds a copyright picture of a cat on the Internet;
- A inserts a humorous caption, and publishes the resulting captioned picture on flickr under a Creative Commons licence which permits commercial re-use;
- B finds the picture on flickr, and starts selling t-shirts with the picture on them, not realising that they are infringing copyright;
- C, the person who owns the copyright in the original picture, finds out that B is infringing their copyright and sues B. (Yes, they could also sue A, but lets assume B has deeper pockets and is a more attractive target)
So what do you do? You sue A. Except that the terms of the CC licence try very hard to prevent you from doing that. See for example cl 5-6 of the CC Attribution 3.0 unported licence:
5. Representations, Warranties and Disclaimer
UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.
6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This is serious stuff. The version 1.0 licences expressly warranted 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 hereunder and to permit the lawful exercise of the rights granted hereunder ...' The post-1.0 licences basically say 'I give you the right to reuse this stuff, but I refuse to say whether I'm the copyright holder, and if I'm not, you can't sue me.'
The disclaimer and limitation of liability clauses aren't air-tight, or at least not in all cases. If there was fraud involved, they wouldn't be effective. There may be applicable warranties which are implied by statute which the licensor can't contract out of. A court might hold that these clauses aren't sufficient to contract out of liability in negligence.
The paper which I referred to in my previous posting explores these issues in more detail. The deletion of warranties after the 1.0 licences has a lot of history (involving much dummy-spitting and beating of chests), and I don't defend everything that the 1.0 licences warranted -- they went too far in some areas. But I think that the post-1.0 licences have gone too far in the other direction -- by disclaiming warranties as to the validity of the licence, and attempting to contract out of all liability, IMHO they disclaim too much to be useful, or at least, they disclaim too much to fulfil their stated goals.
Given my apparent reputation as being 'anti-copyright' (which I'm not), you'd think I would be a major supporter of things such as the Creative Commons project -- but I'm not. Creative Commons has got far too many bugs and other assorted problems for my liking. Many months ago I wrote a paper describing some of the faults that I perceive with the licenses and the movement, one day I'll probably clean it up and publish it on the net. I might even publish it under a Creative Commons licence.
I can do this, because it's an original literary work, and I'm the author, so I own the copyright which subsists in it, and I can license it as I please. But some people don't know or don't care about little details like that.
Take as an example the Flickr user anomalous4. It might be unfair to single them out for criticism on this issue, since I'm sure there are thousands of other people out there doing the same thing, but they seem to be a fairly clear-cut example of the problem, and they came to my attention after one of their pictures was posted on Cute Overload today.
Yes, it's a cute pic. Click on it, and you end up on the page for that pic on flickr. The description of the picture? "don't know source of pic." They have other lolcats on their flickr profile, here's another one. The description of that one? "Original from ????? don't know".
I'm inferring from the descriptions that anomalous4 has given those images that they have found the original cat pictures from somewhere, edited the pictures to insert a humerous caption, and put them on their flickr profile. The problem is, anomalous4 has purported to license both of those images under a Creative Commons Attribution 2.0 licence, which they almost certainly had no right to do. You can't give people permission to use copyright material that you've just randomly appropriated from somewhere on the Internet because it was cute.
This is an admittedly trivial example. It's not likely that the original copyright owner would find out that this was happening, they may not care, and they probably wouldn't sue. The risk to people who reproduce anomalous4's CC-licensed lolcats is pretty tiny. But then again, cute overload might put it in their 2009 calendar, and get sued by an angry litigious photographer who thinks they've stolen their photo.
My point is this, and it was a major theme of the paper that I wrote criticizing the CC licences: When you release material under a CC licence, you are inviting other people to reuse it and purporting to give them permission to do so. If you don't have the right to license that material, the people who reuse it could get sued. You owe it to them to only CC-license material which you have the right to license. Usually, that will mean that it's your own original work (sticking a caption on somebody else's cat photo doesn't count) or that the non-original components were also CC-licensed.
I can do this, because it's an original literary work, and I'm the author, so I own the copyright which subsists in it, and I can license it as I please. But some people don't know or don't care about little details like that.
Take as an example the Flickr user anomalous4. It might be unfair to single them out for criticism on this issue, since I'm sure there are thousands of other people out there doing the same thing, but they seem to be a fairly clear-cut example of the problem, and they came to my attention after one of their pictures was posted on Cute Overload today.
Yes, it's a cute pic. Click on it, and you end up on the page for that pic on flickr. The description of the picture? "don't know source of pic." They have other lolcats on their flickr profile, here's another one. The description of that one? "Original from ????? don't know".
I'm inferring from the descriptions that anomalous4 has given those images that they have found the original cat pictures from somewhere, edited the pictures to insert a humerous caption, and put them on their flickr profile. The problem is, anomalous4 has purported to license both of those images under a Creative Commons Attribution 2.0 licence, which they almost certainly had no right to do. You can't give people permission to use copyright material that you've just randomly appropriated from somewhere on the Internet because it was cute.
This is an admittedly trivial example. It's not likely that the original copyright owner would find out that this was happening, they may not care, and they probably wouldn't sue. The risk to people who reproduce anomalous4's CC-licensed lolcats is pretty tiny. But then again, cute overload might put it in their 2009 calendar, and get sued by an angry litigious photographer who thinks they've stolen their photo.
My point is this, and it was a major theme of the paper that I wrote criticizing the CC licences: When you release material under a CC licence, you are inviting other people to reuse it and purporting to give them permission to do so. If you don't have the right to license that material, the people who reuse it could get sued. You owe it to them to only CC-license material which you have the right to license. Usually, that will mean that it's your own original work (sticking a caption on somebody else's cat photo doesn't count) or that the non-original components were also CC-licensed.
