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Last post Author Topic: Are Creative Commons Licenses Even Enforceable?  (Read 13145 times)

app103

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #25 on: August 25, 2013, 03:10:43 PM »
Don't know how it works elsewhere, but in the US you have a copyright whether you want it or not. If you do CC you still have a legally enforceable copyright. If you don't want it, you can put your work into the public domain - in which case everybody owns the copyright. But there still is, and will always be, a legal copyright in effect on any original creative work.

And yes, and CC has been successfully enforced in US courts. But it works in addition to the copyright. The courts have made it clear it doesn't replace it. And filing a CC does not mean you have a "legal right" to waive copyright. In fact, the courts have repeatedly said you can't waive it.

No, you can not waive copyright. You can not waive copyright and place your works in the public domain, either. That is not a legal option available to the creator. You are stuck with your copyright, whether you want it or not.

And as the article states, it doesn't matter if you decide to allow free use, promising not to sue. Your heirs, who will inherit your copyrights when you die, made no such promise to the people that are using your work, and might not decide to honor your wishes. As the new owners of that copyright, they have that right, especially in the absence of any proof of the creator's intentions, and even where proof exists (Woody Guthrie's anti-copyright notice and how there are plenty of people currently claiming and enforcing copyrights on his works, is a perfect example.).

(Really, take the time to read the article, if you haven't yet. It raises some really good questions and makes some very good points.)

There hasn't yet been a case to test the validity of CC licenses in the long term.

There has yet been no case where an artist created a graphic and placed it on their website with a CC-BY  license, then died. Then their heirs didn't pay the hosting bill and the site, with the statement by the artist that the image was CC-BY licensed, went away. Then 25 years later, one of the heirs decides to start suing everyone that is using the image, requiring everyone to prove in court that they had permission from the artist to use that work.

There hasn't even been a case to test the validity of a CC license in the short term, where some troll posts something on their site, slaps a CC-BY license on it, blocks spidering by archive.org's Way Back Machine, changes the license to CC-BY-NC-ND, then goes and sues people that used it under the older license...anyone that used it commercially or created a derivative work.

And there hasn't been a case yet where someone puts something on his site that he never intended anyone to copy, then along comes someone else who takes it, copies it, and slaps a CC license on it, then another person seeing the CC license uses it, only to end up getting sued by the original creator who never gave his work any such license*.

How will the courts decide in these kinds of cases is anyone's guess, at this point. We really can't make any assumptions here, especially in the absence of a hand signed document giving a specific individual specific permission for use. And this was my point in the other thread when I said:

Nothing takes the place of a document spelling out your rights under whatever license the creator decides to grant you, hand signed by the copyright holder. That document is proof of permission. Anything else, no matter how fluffy and feel good it is, is not a suitable legally binding substitute.



*Technically, I could have sued a bunch of people based on a graphic that was stolen from one of my websites, for which someone stuck a portion of it in a scrapbooking kit, slapped a CC license on it requiring anyone that uses it to give them credit for it. I could have sued the creator of the scrapbooking kit, and anyone that used it, because I, the creator, never gave permission to anyone to use it other than for personal use as a desktop wallpaper. Any other use, by anyone, was unauthorized.


TaoPhoenix

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #26 on: August 25, 2013, 04:05:41 PM »

I'm daydreaming of a business model where some collection of entities (X group, plus a retainer'ed law firm) specifically creates lawsuits with the point of trying to force court decisions on open areas of the law.

Is that legal!? For example, it's not hard to find example plaintiffs and defendants to all those points, so "what are we waiting for"?

I agree that CC "sits on top of copyright", but I don't think it can be revoked after the fact because otherwise that sounds like a breach of contract for the original license. Assuming documentation is in order, it sounds just like a standardized framework for permission rights that would otherwise have to be hand drafted each time.

The reason it's all so murky is just because of how powerful Copyright got to be in the first place.


app103

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #27 on: August 25, 2013, 04:52:38 PM »
I agree that CC "sits on top of copyright", but I don't think it can be revoked after the fact because otherwise that sounds like a breach of contract for the original license.

But that's only if you can even prove it was CC licensed, in the first place, and licensed that way by the actual copyright holder.

TaoPhoenix

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #28 on: August 25, 2013, 05:18:56 PM »
I agree that CC "sits on top of copyright", but I don't think it can be revoked after the fact because otherwise that sounds like a breach of contract for the original license.

But that's only if you can even prove it was CC licensed, in the first place, and licensed that way by the actual copyright holder.

Well not counting "swiping" people's work, that's the same problem with regular copyright. But "proof" could be some kind of crypto-signed certificate. You could even make an audio format where the "cert travels with the song". That's why I was saying "assume the documentation is there" - aka there's lots of work to do, but let's examine the raw legal status of the license itself.


app103

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #29 on: August 25, 2013, 05:42:56 PM »
But "proof" could be some kind of crypto-signed certificate. You could even make an audio format where the "cert travels with the song". That's why I was saying "assume the documentation is there" - aka there's lots of work to do, but let's examine the raw legal status of the license itself.

Yes, there is a lot of work to do, and none of it is going to help anyone that is using CC licensed works, today. If you go back earlier in this thread, before it was raised from the dead, I did state how the problems could have been avoided in the first place. But then again, these problems do exist because the CC people specifically didn't want to avoid the problems they knew would happen. It was too much trouble, fuss, bother, and expense to do things right, so they did them half-fast.

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #30 on: August 25, 2013, 09:09:57 PM »
No, you can not waive copyright. You can not waive copyright and place your works in the public domain, either. That is not a legal option available to the creator. You are stuck with your copyright, whether you want it or not.

Not really sure I buy it.

(Really, take the time to read the article, if you haven't yet. It raises some really good questions and makes some very good points.)

Still not sure I buy it.

From a purely US-centric view of law, well... whatever. As far as I can see, that's just a game of trying to predict what the courts will recognize or enforce, and not particularly interesting.

The more interesting thing seems to be the discussion about copyright/public domain/etc.

To mitigate the risk of getting this thread sent to the Basement, I'll merely post links without comment:

http://falkvinge.net...king-without-paying/

http://falkvinge.net...scussion-on-sharing/

Some interesting things on the topic there, though from a different perspective.

Once it is figured out *what* these things are, then the "legal" debates seem to make more sense (not that anything in the debate make sense - merely that red herrings are then obvious).
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40hz

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #31 on: August 26, 2013, 05:31:28 AM »
No, you can not waive copyright. You can not waive copyright and place your works in the public domain, either. That is not a legal option available to the creator. You are stuck with your copyright, whether you want it or not.

Not really sure I buy it.



Actually, that is the case. It's come up in court.

And April is right about you not being able to directly assign something to public domain in the USA. In 1979 they 'clarified' the rule. The only way something enters US public domain now is when the copyright naturally expires. The old method of electing to "immediately expire" your own copyright no longer applies. Copyright can't be waived. However, the rights granted under it can be abandoned - which amounts to the same thing.

Quote
...you can voluntarily abandon your United States copyrights:

It is well settled that rights gained under the Copyright Act may be abandoned. But abandonment of a right must be manifested by some overt act indicating an intention to abandon that right. See Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960).
.
.
.
Most documents have a conventional location for a copyright notice (e.g., the bottom of page 1 of a scientific paper). You can write "Public domain" in this location rather than "Copyright 2005," "Copyright 2006," etc. This, by itself, clearly satisfies the "overt act" test.

You can write a subsequent document saying "I hereby place my paper `On The Origin Of Species' into the public domain." This, by itself, clearly satisfies the "overt act" test.


-------------------------------------

From a purely US-centric view of law, well... whatever.


Well...the USA is where the bulk of us here at DoCo live...and US law is what we have to live under so...whatever. Like the old disclaimer says: "The law gives you specific rights. You may also have other rights, which may vary from state to state."
:P



« Last Edit: August 26, 2013, 05:40:37 AM by 40hz »

app103

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #32 on: August 26, 2013, 05:44:50 AM »
To mitigate the risk of getting this thread sent to the Basement, I'll merely post links without comment:

http://falkvinge.net...king-without-paying/

http://falkvinge.net...scussion-on-sharing/

Some interesting things on the topic there, though from a different perspective.

I don't see how any of that relates to Creative Commons licenses. Don't forget, Creative Commons licenses allow for more than mere sharing. A CC-BY license pretty much allows one to do anything, as long as they give credit...anything.

He even says

Quote
(Another special case of contracts have an exchange of value is not discussed here, as they don’t concern brief and efficient interactions on a free marketplace, but significantly more complex, long-term relationships.)

This is all about contracts.

A Creative Commons license is a contract. And that is what we are discussing here...not the copying and sharing of commercially produced movies and music. That would be like comparing ice cubes to oranges, when you get into things like creating derivative works, based on a CC-BY licensed work, and selling it commercially. Nobody is arguing that the CC-BY license contract doesn't allow that. What we are talking about is the enforceability issues that the whole thing creates when you can't prove a contract exists.

We are not talking about you getting to see a movie for free.

We are talking about you being able to take a CC-BY licensed work of art, using it to illustrate a series of childrens books that become as popular as Dr Seuss, leading to merchandising based on that artist's artwork, leading to an animated series based on that artwork, which the artist fully allowed you to do with the CC license contract, and then later not being able to prove that contract existed in the first place, or that it allowed commercial use, or the creation of derivative works.

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #33 on: August 26, 2013, 06:15:21 AM »
Sorry. When I jumped in here it was from a recommendation in another thread. We're obviously not talking about the same things. So, no need to breed more red herrings.
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40hz

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #34 on: August 26, 2013, 09:20:28 AM »
 rh.gif

TaoPhoenix

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #35 on: August 26, 2013, 10:05:20 AM »
We are talking about you being able to take a CC-BY licensed work of art, ... and then later not being able to prove that contract existed in the first place, or that it allowed commercial use, or the creation of derivative works.

I both want to "assume good faith" while giving a wink and nod to malice. But I sorta see the "proof it existed" as "sorta the easy part" in the sense that me-as-reuse-artist saw *something* to even think they were in CC-land at all. So for example doing a "Save-Page-As--Webpage-Complete" with a timestamp should "sorta work". I know, you can get all fancy about how to certify it, but let's stay simple "in this paragraph" so we can go to the next batch of issues down.

I'd hope that a CC-BY license should be one of the easier ones to use. So far they seem to be holding up, because in the few early cases, it seems they started boiling down to rather simple other aspects. Club Owner Club owner #1 said he was using only CC music, but he was mistaken and/or bluffing, so he lost, but only to the extent those other songs got in there. Another one ended up being about Personality Rights and not CC.

But when Club Owner #2 proved he used CC music only, he won.

What we need is a crispy case where someone uses a CC-BY song, maybe in a movie, it goes viral, and then the owner gets grouchy and tries to wiggle out of it. CC-BY is essentially about exposure, an implicit "piggy back on your marketing" tradeoff. So in the rare case someone hits it out of the solar system, that "exposure only" will have to do, with no $, too bad you didn't bet better on yourself.


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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #36 on: August 26, 2013, 10:15:46 AM »
It's worth noting the issues app103 has pointed out are the inescapable result of how modern copyright has evolved as a 1-size-fits all regime. It started as soon as guidelines designed to fit printed publications were extended to cover music. With every additional content and media type it has essentially become a complex web of kludges required to handle exceptions. This would be true even without the current level of industry interference and control.

The similarity between literary works, research reports, musical compositions, theatrical scripts, movie screenplays, and computer code is purely cosmetic. Add in performances, broadcasts, and various types of permanent and transitory digital copies and that illusory link disappears. Even if you begin with the assumption that the premise of copyright is protecting creators, at the very least it would require a complete ground-up overhaul.

In reality, though, the merits of copyright, or lack thereof, are irrelevant. Its real world effectiveness has always been dependent on technological limitations which have long since ceased to exist. The question we need to be asking is simply this. What can we do to reward, enable, and empower creators? If we begin with anything more restrictive than that we only reduce our chances of finding the best answers.
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app103

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #37 on: August 26, 2013, 10:23:18 AM »
What we need is a crispy case where someone uses a CC-BY song, maybe in a movie, it goes viral, and then the owner gets grouchy and tries to wiggle out of it. CC-BY is essentially about exposure, an implicit "piggy back on your marketing" tradeoff. So in the rare case someone hits it out of the solar system, that "exposure only" will have to do, with no $, too bad you didn't bet better on yourself.

Ah, but then would their song ever have become popular at all without that CC license? Would the artist die as an obscure nobody without that exposure? What he does with his free fame after that is up to him. Releasing an album and taking advantage of the free publicity he got from the movie to sell it, would be the intelligent thing to do.

I think that CC license would have been him betting he would be famous if he had the chance to be heard by the masses. How could one bet better?

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Re: Are Creative Commons Licenses Even Enforceable?
« Reply #38 on: August 26, 2013, 11:19:16 AM »
Ah, but then would their song ever have become popular at all without that CC license? Would the artist die as an obscure nobody without that exposure? What he does with his free fame after that is up to him. Releasing an album and taking advantage of the free publicity he got from the movie to sell it, would be the intelligent thing to do.

I think that CC license would have been him betting he would be famous if he had the chance to be heard by the masses. How could one bet better?

Of course! I agree!

I was just trying to make a hypothetical argument on why the concept wouldn't hold up under a "strict" test.