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Comments from Frankston, Reed, and Friends

Wednesday, April 30, 2003

DanB at 11:25 PM [url]:

Creative Commons has things to say...

Glenn Brown, Executive Director of Creative Commons, posts some reactions to my post from yesterday on his weblog. He feels the word "reasonable" before "inquiry", added after discussion, helps limit the liability. If any of you have any thoughts on this whole issue, please add comments to his weblog or send them to him. I think the Creative Commons project is important, and we really should have an appropriate set of licenses to choose from that work in as many situations as possible. They are being responsive.

Tuesday, April 29, 2003

DPR at 11:00 AM [url]:

No commons left at all

Dan's post below just illustrates the insanity of the US's current copyright regime, in which every idea that's ever been expressed is considered the property of the expressor. Why bother to try to jump through these hoops? Do what engineers have done with patent law for decades: ignore it. It can't be fixed.

If someone were to repeat any of my ideas, anywhere (for example, the "end-to-end argument") they would be infringing my copyright in that expression, and probably my trademark. If you were to want to build on that idea, or criticize it, you'd have to find a different way of expressing it. And of course, if the different expression cites my work, a mere rewording shows that you almost certainly derived the new expression as a translation, which is a copy, so it may indeed be insufficient (because translation is protected by copyright, as well) to protect yourself from my suing you.

Thus a lawyer would suggest that you not ever refer to my work without negotiating a license from me. (and of course we'd have to pay some lawyer for the copyrighted template license form that we use, unless we come up with entirely new licensing language in a clean room, drawn up by people who have never seen such licenses before).

And all of this is supposed to encourage creativity?

The ideal Commons license for creativity should be: steal this expression!

DanB at 10:19 AM [url]:

An issue people may not be aware of with the Creative Commons licenses

In some discussions with Dave Winer and Diane Cabell, who is an officer with the Creative Commons project, it's come to my attention that many people may not be aware of some aspects of popular Creative Commons licenses. In particular, there are "representations and warranties" that you make. For example, in the popular "Attribution 1.0" license, it says (emphasis added):

5. Representations, Warranties and Disclaimer

a. By offering the Work for public release under this License, Licensor represents and warrants that, to the best of Licensor's knowledge after reasonable inquiry:

i. Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder without You having any obligation to pay any royalties, compulsory license fees, residuals or any other payments;

ii. The Work does not infringe the copyright, trademark, publicity rights, common law rights or any other right of any third party or constitute defamation, invasion of privacy or other tortious injury to any third party.



When you "warrant" something you are (from a lay person's viewpoint) guaranteeing the person using your work that you'll indemnify them against loss if you were wrong; i.e., you'll reimburse them for what they end up paying if they are sued. In this license, you are saying you have made "reasonable inquiry" to make sure that you have sufficient rights to what you are licensing to let others use it without paying royalties. If you put that license on your weblog, you are saying you've checked about everything, including quotes you've made, deep linking, images (including trademarks that may show in the background or people visible without a model release), sample code for patent infringement, etc., understand "fair use" law, and feel comfortable even if someone then went and put those images in a movie or something, or your sample code in a program and sold it. The standard for royalties and damages are different for different uses. (While "fair use" may cover material cited in commentary on an academic weblog, there are stories how even a TV in the background of a film showing a popular TV show requires huge royalty payments.)

This is different than many other licenses that many non-lawyers are used to. For example, the "Artistic License", used for many open source products, Perl, etc., has no such warranty about freedom from infringement. Dave's RSS license ends with "This document and the information contained herein is provided on an 'AS IS' basis and USERLAND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE USE OF THE INFORMATION HEREIN WILL NOT INFRINGE ANY RIGHTS..."

Why is the Creative Commons license so strict? That's easy to understand and appropriate: They wanted to make sure that users of the work would have the easiest situation possible to re-use the material, subject to straight-forward restrictions. The burden of checking for rights was placed on the author so it only had to be done once in advance. This is similar to many book and other commercial contracts.

What the Creative Commons people didn't do, as far as I can tell, is make a set of licenses for the casual weblogger, who does not want to consult a lawyer before each post. The Creative Commons licenses say, in effect, "After checking, I guarantee no one will sue you if you copy my work, with some restrictions". What many casual webloggers really want to say is "I guarantee I won't sue you if you copy my work, with some restrictions".

So, what should you do if you want to let people copy your work but don't want to warrant that you've checked everything? That's a good question. But, rather than wait for an answer, I decided I should at least let people know of the issue. The Creative Commons people are right now starting to think about this in relation to all of the other desirable aspects of Creative Commons. In the meantime, there are other licenses you could use (don't ask me which). You could continue to use the Creative Commons license and hope nobody gets sued. It's up to you.

For the SMBmeta Initiative specs, I included a disclaimer saying (borrowing a bit from Dave's RSS license): "This work is licensed under the Creative Commons Attribution License [linked] subject...to the deletion of all of the representations and warranties in Section 5a of that license. THIS WORK IS LICENSED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING...WARRANTIES THAT USE OF THE WORK WILL NOT INFRINGE ANY RIGHTS OF OTHERS." The problem with that approach is that I'm linking to Creative Commons, which everybody knows (or at least should know) does have the warranties. Worse yet, if I used a Creative Commons logo (which I didn't) in connection with my custom license version, that might be considered a misuse of their trademark, since their trademark currently implies that one can copy without worrying about liability arising from disclaiming the warranty.

In any event, we'll be hearing more about this in the coming months. The bottom line for people: Read legal material you use and ask questions if you don't understand something. Legal material is like software code: The details matter. At least the license material you use is in "readable shared-source".

Monday, April 28, 2003

DanB at 12:36 AM [url]:

Online piracy is not like shoplifting

I keep hearing the tag line "Pirating works online is the same as shoplifting a videotape, book or computer program from a department store" or something to that effect. It seems to just be taken as a given, and then used as reason for all sorts of laws that distort the balance between authors, distributors, and the general public. But it's not true.

Each copy of a videotape, book, or computer program in a department store is separately bought and paid for by that store from a wholesaler before being put on the shelf. Each shoplifted copy is not just a missed sale, but it is also out-of-pocket money paid without a return. If the shoplifter never intended to buy the item, the store loses the same amount of money as it would if the shoplifter were a purchaser who decided to save their money this time by breaking the law. To the distributor of the videotape, book or computer program, or the author, the shoplifted copy is actually a boon: They get the wholesale payment for items that would not have been purchased in addition to the payments from all those that are or would have been. They have no direct loss in any case from shoplifting. Only the department store has a loss, and it is a very real loss, one-to-one with each shoplifted copy. The shoplifted copies, also, are not likely to have any benefit for the store. Unlike the artist, the enjoyment of that copy is not likely to benefit the store if it results in attendance at concerts or any other "new fan" benefits. In addition, the location and circumstances of the shoplifting are the same as purchasing: in the store with a physical object. With online piracy, the location and circumstances are different than purchasing a movie or book (at least until authorized online copies are as easy to get as unauthorized ones). Software is different. Buying software legally online is almost just as easy as pirating it today. Software has been susceptible to piracy for decades, yet, according to the BSA (an anti-piracy group) "the commercial software industry...[is] the fastest growing industry in the world." (I wrote about this back in August of 2000 in an essay titled "The Software Police vs. the CD Lawyers".)

Pirating works online is really more like kids watching a baseball game through a hole in the outfield wall, or listening to a concert just outside the gate. There is no out-of-pocket expense for that particular copy, just a possible loss of potential revenue. If your costs are low enough and you have some sales, you can tolerate lost sales that have no expense and still actually make a profit. (It's like some summer concerts where the patrons pay a lot to sit in seats up front while thousands of others sit on the field outside listening for free.) No matter what your costs, if you have to buy each copy in advance, and then lose copies to stealing, too much stealing will drive you out of business. (The actual costs of producing creative material is dropping through the benefits of technology, though the choice of certain distribution channels is making the cost of marketing that material go up. Choosing different distribution channels could lower that marketing cost, as well as distribution costs, substantially. Technology is always opening up new methods for distribution.)

So, if we are basing our laws on the belief that online sharing is the same as shoplifting, we are making a mistake. If we are trying to "make the punishment fit the crime", we must understand that the crimes are different. If we wonder why "Students would never enter a Blockbuster store and with furtive glance stuff a DVD inside their jacket and walk out without paying" but do share digital copies, realize that the economics are different, and understood to be different by the ones making the copies. Let's argue the issue based on what copying is and not what it is not.

There are those that want to turn artistic works in copyable media into discrete physical objects with all the restrictions that entails. This is not a good thing and will hurt society which is based upon building on the works of others without diminishing those original works. Let's not pretend that the transition has already occurred.

For more, see the Archive.

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