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Are Creative Commons Licenses Even Enforceable?

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TaoPhoenix:
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.


-40hz (February 29, 2012, 05:17 AM)
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Copyright doesn't have great protection or tracking either. The big problem is that "the instant something is created, it gains automatic copyright". It doesn't have to be filed with the US copyright office, though there's something about limitations in damage recovery in a lawsuit if you don't.

Renegade:
<darkchanting>
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Pellentesque quis sodales lacus. Pellentesque...
</darkchanting>



NECROTHREAD! ARISE!

Well, IANAL, but I see no reason why you and I can't make an agreement and for both of us to explicitly deny the courts any jurisdiction. We *can* do that. Now, how much any court would respect that, I don't know. They tend to like meddling in people's business. :P But the point above was that the Copyheart license hasn't been tested.
-Renegade (August 24, 2013, 02:23 AM)
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Unless the law is cooler in Aussieland, you *can't* do that - you can't make a contract that is literally unenforceable by law. That's what that last term means.

So no matter how much dear ol' Renny says he wants to, Some Contracts Cannot Be Made. They basically cease to "legally" exist about 0.000000314159236 milliseconds after they are made.

A more silly exaggerated example is "I promise to shoot myself in the head if Microsoft Stock doesn't rise 17 points with Ballmer's departure".

p.s. please take the "anal" out of not being a lawyer. It's the worst tragedy of acronyms ever created!
:P

-TaoPhoenix (August 24, 2013, 02:48 AM)
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What do you mean tragedy? Considering how they screw everyone, I think it's rather apt. :P ;D

Now, herein are some assumptions...

Unless the law is cooler in Aussieland, you *can't* do that - you can't make a contract that is literally unenforceable by law. That's what that last term means.

So no matter how much dear ol' Renny says he wants to, Some Contracts Cannot Be Made. They basically cease to "legally" exist about 0.000000314159236 milliseconds after they are made. -TaoPhoenix (August 24, 2013, 02:48 AM)
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It doesn't matter where we are - you and I *can* contract outside of any court. What matters is the contract between us - not whether or not a court recognises it or enforces it. God knows the courts don't enforce the laws anyways, so what do they matter? Anyone heard of "too big to fail"? The laws are a joke. The courts are a joke. Justice from the system is a farce. Goldman Sachs was just able to get a "do over" for a series of trades that would have lost them 100's of millions. That's law? It's laughable.

No - our ability to MAKE a contract with each other doesn't rest in the hands of a criminal gang of thugs.

However, we are forced into allowing that criminal gang to enforce any contract we make or to resolve any disputes.

That is - the contract and that someone or some entity will enforce it are 2 distinct things.

For example, say I create a graphic under the REAL license. You think it's cute and post it to your Facebook page. Which happens to be a really bad idea because you're taking a vacation in Thailand and the graphic disparages the king. You go, get picked up and thrown in prison, then try to sue me for your use of the graphic. What does the court do? They often simply throw out portions of a contract as "unenforcable" or something. They may simply exclude the clauses about Aldebaran and all that. But whether or not they recognize the courts in the Aldebaran system doesn't have any bearing on the fact that we contracted on that.

40hz:
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.

Renegade:
In fact, the courts have repeatedly said you can't waive it.
-40hz (August 24, 2013, 07:06 AM)
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Unless your name is Satoshi and nobody knows who you are. 8)

Vurbal:

It doesn't have to be filed with the US copyright office, though there's something about limitations in damage recovery in a lawsuit if you don't.
-TaoPhoenix (March 01, 2012, 03:12 PM)
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That's it in a nutshell. Registering copyrights was originally intended as a way to create a source for other people to determine the status of a work. When the law was rewritten by the entertainment and publishing industries in 1976 it was turned into just another regulatory roadblock for competitors.

An unregistered work isn't eligible for statutory damages, although you can still sue to control its use. Since it costs money to file that means a movie studio, for example, will always be able to get damages because all their copyrights will be filed. OTOH if they infringe on some average Joe's copyright it probably won't be filed so he'll have to prove actual damages. No 'up to $150,000 per infringement' if there's no way to determine or even prove damages.

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