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Are Creative Commons Licenses Even Enforceable?

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app103:
Part of the problem is that a lot of people don't really understand what they are giving up when they slap a CC license on it. Some think it's a free copyright of some sort for people that can't afford to register their works with the copyright office. They don't know how any of it works. I can understand not understanding copyright, not understanding that things are automatically copyrighted at the moment of creation without the need to register your works.

But to slap a CC license on it without understanding that you are giving people the right to copy your work, thinking that somehow this actually protects your work from being copied is something I do not understand how so many people make that mistake. The license is quite clear about it in easy to understand language.

The CC license badge is not a cool looking decoration to stick on your site. It actually means something. You can not stick it on your site with the thoughts of "I need some cool looking buttons to fill up this empty space over here, hey this little black and white one looks really cute and matches my blog's template."

I have seen blogs with a CC-BY-SA license notice on them, giving people a right to copy the articles right along side a "Copyscape-do not copy" notice. That's a contradiction and shows a lack of understanding of CC licensing.

http://cranialsoup.blogspot.com/2008/05/creative-commons-and-authors-true.html

The blog I linked to in that post is a good example of what is wrong. Back then he had both notices on his blog, one right on top of the other. Today he has neither. Anyone that copied his articles back when he had the CC button on his site can not say "but he gave me permission with that CC license". You can't find any evidence of this anywhere on his website today. How do you prove you have that right if him or his heirs ever decide to sue you for republishing his work?

Requiring an author to register each work individually, every single article, and then publish the CC license registration number at the bottom of the article, will offer the opportunity to remind them each and every time what they are giving up, what others will be allowed to do with their works, and force them to be much more conscious of their decision.

Making them click an "I agree" button each and every time may make them stop and think. It will also make it impossible for them to change their minds later and attempt to take it back, protecting those that reuse the works of an idiot or CC license troll. Simply removing notices from your website and denying they were ever there won't work. The work will still be registered in the database.

40hz:
The real problem with Creative Commons IMO is that they tried to keep it loose and on the honor system while at the same time trying to give it some legal 'teeth.'

That doesn't usually fly in a courtroom.

While I admire the motivation and the philosophy behind it, I can't help but think it's largely unworkable in its current incarnation. Mainly because it attempts to provide all the protections that a registry would provide - without actually maintaining a registry.

So whenever push comes to shove, it's extremely difficult to enforce CC provisions if a well-financed challenger stepped up to the plate over a given piece of creative work. And all assertions to the contrary on CC's website, it's still not a given. Most judges take a fairly dim view of assertions and appeals to justice in the absence of due diligence and an actual law to fall back on.

If CC wants to be taken seriously, it's going to have to get much more serious about what it's doing. Because right now it's more like a social club than a licensing organization. If you read the policy pages on the website, CC makes all sorts of claims and establishes a fairly specific set of rules. Then it negates it all with the following:

Can Creative Commons give legal advice about its licenses or other tools, or help with CC license enforcement?

No. Creative Commons is not a law firm and does not provide legal advice or legal services. CC is similar to a self-help service that offers free, form-based legal documents for others to use. CC also provides a jurisdiction database where you can compare the international licenses (formerly known at the "unported licenses") and ports (adaptations of the international licenses for particular jurisdictions), and a license versions page where you can compare the differences between license versions.

The CC wiki has a list of lawyers and organizations who have identified themselves as willing to provide information to others about CC licensing issues. However, please note that CC does not provide referral services, and does not endorse or recommend any person on that list. CC's Affiliate Network may also be a good resource for information about the licenses in a particular jurisdiction, though they should not be contacted for legal advice, at least in their capacity as a member of our CC Affiliate Network.

Who gives permission to use works offered under Creative Commons licenses?

Our licenses and legal tools are intended for use by anyone who holds copyright to the work. This is often, but not always, the creator or author. Creative Commons has no authority to grant permission on behalf of those persons, nor does CC manage those rights on behalf of others. CC offers licenses and tools to the public free of charge and does not require that creators or other rightsholders register with CC in order to apply a CC license to a work. This means that CC does not have special knowledge of who uses the licenses and for what purposes, nor does CC have a way to contact authors beyond means generally available to the public.

If you would like to obtain additional permissions to use the work beyond those granted by the license that has been applied, you should contact the rightsholder.

Does Creative Commons collect or track works licensed under a CC license?

CC does not collect content or track works except by way of example. CC builds technical tools that help the public search for and use works licensed under our licenses and other legal tools. For instance, the CC Network allows creators and users to express their support for Creative Commons, and also provides a tool for creators to authenticate ownership of their works. CC also offers tools like CC Search to help the public discover works offered under Creative Commons licenses on the Internet via CC-aware search engines and repositories.
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So ok...there's no registration, no tracking, no support, no legal assistance...just a bunch of 'feel-good' stuff about sharing and being open. All very noble. And I mean that in all sincerity. But it hardly gives a CC license issuer much to work with if somebody violates those rules. Because without an underlying law specifically for CC, or an organization that keeps track of registrations - and attempts to enforce the rules - you're basically just issuing your own personal license. Except in this case, it was written for you by CC.

Not very good protection. More along the lines of using "moral suasion" as they (used to?) teach in management school.

And any good attorney will tell you if you have genuine faith in the notion of "moral suasion" when dealing with business, they have a bridge on Brooklyn they'd like to sell you.

TaoPhoenix:
Interesting stuff.

From what I have seen, it's almost the other way around - everyone who "Shares" something that Infringes Copyright seems to be "Automatically ReLicensing" the original copyright into CC-BY-NC-SA. You know: "Hi Youtube, I posted this episode, it belongs to Warner Studios, no disrespect intended."

app103:
Interesting stuff.

From what I have seen, it's almost the other way around - everyone who "Shares" something that Infringes Copyright seems to be "Automatically ReLicensing" the original copyright into CC-BY-NC-SA. You know: "Hi Youtube, I posted this episode, it belongs to Warner Studios, no disrespect intended."
-TaoPhoenix (March 01, 2012, 07:59 AM)
--- End quote ---

Technically, that's not true since the original copyright holder never gave them a license giving them permission to share it in the first place. Sharers that don't have a license to redistribute don't really have much of a leg to stand on in court if they get sued. And neither do those that reshare from them. A takedown notice sent to Youtube would get it removed and the uploader really wouldn't be able to dispute it by saying "but I have a license to redistribute it".

TaoPhoenix:
Interesting stuff.

From what I have seen, it's almost the other way around - everyone who "Shares" something that Infringes Copyright seems to be "Automatically ReLicensing" the original copyright into CC-BY-NC-SA. You know: "Hi Youtube, I posted this episode, it belongs to Warner Studios, no disrespect intended."
-TaoPhoenix (March 01, 2012, 07:59 AM)
--- End quote ---

Technically, that's not true since the original copyright holder never gave them a license giving them permission to share it in the first place. Sharers that don't have a license to redistribute don't really have much of a leg to stand on in court if they get sued. And neither do those that reshare from them. A takedown notice sent to Youtube would get it removed and the uploader really wouldn't be able to dispute it by saying "but I have a license to redistribute it".
-app103 (March 01, 2012, 02:32 PM)
--- End quote ---

I think we are agreeing, which suggests you haven't seen my "quotes" convention. A posted episode is certainly Infringing, no quotes. However when the poster uploads it and adds the key phrase "This is not mine, it's from the movie studio", I then meant that they are (yes, illegally) effectively altering the license. (Because you have to ask, either how can they not know that they are infringing, or they know they are but think that the penalties somehow don't apply to them.

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