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Are Creative Commons Licenses Even Enforceable?

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app103:
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.
-40hz (August 24, 2013, 07:06 AM)
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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.
-app103 (August 23, 2013, 09:27 PM)
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*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:

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:
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.
-TaoPhoenix (August 25, 2013, 04:05 PM)
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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:
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.
-TaoPhoenix (August 25, 2013, 04:05 PM)
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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.
-app103 (August 25, 2013, 04:52 PM)
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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:
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.
-TaoPhoenix (August 25, 2013, 05:18 PM)
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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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