July 19, 2005

Dvorak on Creative Commons: “Humbug!”

John C. Dvorak recently published this column criticizing Creative Commons. Some of his criticisms are valid; others, based on a misunderstanding of the Creative Commons licenses or the role of Creative Commons as an organization; others still, based on dangerous misconceptions about the law.

Dubbed Creative Commons, this system is some sort of secondary copyright license that, as far as I can tell, does absolutely nothing but threaten the already tenuous “fair use” provisos of existing copyright law. This is one of the dumbest initiatives ever put forth by the tech community. I mean seriously dumb. Eye-rolling dumb on the same scale as believing the Emperor is wearing fabulous new clothes.

If we cut through the prose here, we find that Dvorak worries that Creative Commons licensing might limit users’ fair use rights. This is a misunderstanding of the license. The very first substantive paragraph of every Creative Commons license says, “Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.” How any license that so prominently and so explicitly preserves users’ fair use rights could pose a threat to those rights is difficult to imagine.

I have sent notes to this operation and never received a reply, in case you’re wondering.

A valid criticism. Five minutes on the phone with a Creative Commons staffer, and this column would have looked very different.

There are several things that bother me about this initiative. First, Creative Commons is similar to a license. You sign up with the group and post a message saying that your material is protected or covered by Creative Commons.

Here, we have another misunderstanding of the license. Creative Commons is not “similar to a license”; Creative Commons is a provider of licenses that copyright holders may apply to their works. You do not “sign up with the group”; Creative Commons doesn’t need to know or track who is using their licenses, since the license is solely between the creator and the user. You do “post a message”; this message indicates under what terms you have chosen to license your work. While Creative Commons provides some facilities for authors to announce their works and the associated license terms, Creative Commons, as an organization, does not “protect” anyone’s copyrights. More on this in a moment.

This means that others have certain rights to reuse the material under a variety of provisos, mostly as long as the reuse is not for commercial purposes. Why not commercial purposes? What difference does it make, if everyone is free and easy about this? In other words, a noncommercial site could distribute a million copies of something and that’s okay, but a small commercial site cannot deliver two copies if it’s for commercial purposes. What is this telling me?

This is telling you that you misunderstand the license. Authors who make works available under Creative Commons licenses may choose from a number of restrictions on use. They may allow all use attributing the work to the author; they may or may not prohibit commercial use; they may or may not prohibit incorporation into another work, and so on. The license terms are chosen by each individual author. Dvorak is really asking why any author would choose to limit use to noncommercial purposes. As an author who licenses works (like the one you’re reading) under such a restriction, I can tell him: it’s because, if someone wants to have the potential to make money from my work outside the bounds of fair use, I want them to ask me first.

This is nonsense. Before Creative Commons I could always ask to reuse or mirror something. And that has not changed. And I could always use excerpts for commercial or noncommercial purposes. It’s called fair use. I can still do that, but Creative Commons seems to hint that with its license means that I cannot. At least not if I’m a commercial site and the noncommercial proviso is in effect.

As noted above, no Creative Commons license ever purports to limit fair use rights, and each license explicitly preserves all such rights.

This is a bogus suggestion, because Creative Commons does not supersede the copyright laws. In fact, the suggestion is dangerous, because if someone were sued by the Creative Commons folks over normal fair use and Creative Commons won the suit, then we’d all pay the price, as fair use would be eroded further.

A major misunderstanding of the role of Creative Commons as an organization. When you distribute a work under a Creative Commons license, you don’t give Creative Commons, as an organization, any special rights. If someone started distributing your CC-licensed song without attributing it to you, Creative Commons wouldn’t and couldn’t sue on your behalf. As it says in the text of every Creative Commons license, “Creative Commons is not a party to this License.”

There’s another thing that bugs me about Creative Commons. When you see its licenses the wording will say something like “Creative Commons License: Public domain.” This means that the item is not covered by copyright but is in the public domain. So what’s Creative Commons got to do with it? Public domain is public domain. It’s not something granted by Creative Commons. Yet you see this over and over as if it were!

A valid criticism, in my opinion. While Creative Commons does make available a Public Domain Dedication process, public domain status isn’t really a Creative Commons license, and nobody should refer to it as such.

Creative Commons trying to insert itself as another layer into a system that already protects content developers like me to an extreme. I mean my grandkids will own all my writing exclusively until 75 years after I’m dead, unless I sell all the rights to someone else. What more do I want from copyright?

As noted above, Creative Commons allows authors to grant more rights to the public, not to themselves.

And, yes, I think this term of protection is ridiculously long, but why would I as a content creator want Creative Commons? What does it bring to the party? It might make it easier for people to access my material and reprint some of it. But they do that already.

When it comes to text, like Dvorak’s column, fair use works pretty well to protect the user’s legitimate interests — for example, by allowing me to quote extensively from the piece to the extent necessary to criticize it. But fair use doesn’t let me record a new version of your song, or add a soundtrack to your video, or use your photo in a digital collage. Some creators want people to be able to do that, without asking first. That’s what it brings to the party.

If I have a complaint about copyright, it’s this: I think copyright laws need to get things such as Picasso art from 1924 back into the public domain, thus allowing reprints of books from 1930 without worrying about who owns the copyright. A lot of things are lost to the public domain because of the new laws. But Creative Commons has nothing to do with Picasso or anything else except new works.

Yes! Yes, that’s exactly right! That’s why, separately from Creative Commons, the Stanford Center for Internet and Society — also founded by Lessig — is working to get those Picasso works back into the public domain.

There was always something about Creative Commons and its name that bugged me, too. The name sounds like a variation of the once-powerful Common Cause political-action committee. A ring of days gone by—nostalgia. All I see here is making the very easy and simple U.S. copyright laws more complex for no apparent reason, except maybe as a protest.

That’s just silly.

Years ago, to gain a copyright, you had to fill out a form and send in the material to the Library of Congress. Now you just use the word “copyright,” add your name and a date, and publish it. What could be easier?

Here, we have a material misstatement of the law. A copyright attaches to any fixed creative work whether or not there is any notice of copyright (e.g., “Copyright Joe Gratz 2005. All rights reserved.”). Copyright holders can sometimes get more in a lawsuit if there was notice, but since 1989, notice has not been required. Copyright attaches automatically. That’s part of the reason we need Creative Commons licenses — because silence means “nobody may use this, except under fair use, until 70 years after I die.”.

Apparently simplicity was more than some people could handle, so they invented Creative Commons to add some artificial paperwork and complexity to the mechanism. And it seems to actually weaken the copyrights you have coming to you without Creative Commons. Oh, brother!

Yes, if the author so chooses, Creative Commons licenses weaken the copyright protection that’s applied by default. That’s the whole point. But they don’t increase complexity — they reduce it. If you want to make a use of the work that’s allowed by copyright laws, such as fair use, you may ignore the Creative Commons license terms and go ahead. If you want to make a use of the work that would otherwise be a copyright infringement, you’ll have to read the terms under which the author has chosen to license the work. If your use is allowed, you go ahead; if not, you have to ask permission.

A Creative Commons license is just a way of granting permission for certain otherwise-infringing uses ahead of time, so you don’t have to take the time and trouble to ask.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

Creative Commons License
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