Joi Ito's Web

Joi Ito's conversation with the living web.

Karl-Friedrich Lenz and others are dumping the Creative Commons license because they don't like the fact that the original licensor guarantees to the licensees. If I understand this correctly, it means that if I snap a photo of something, someone copies it from my site and posts it and get sued, it comes back to bite me.

Me sense is that this is the way it should be. Tell me if I'm missing something.

Here's my view.

Copyright is not some clearly defined law. It is law and technology that is the codification of what society thinks is "fair use", "free speech" and many other things at the time. Hollywood and a lot of other people are pushing to limit things like free speech and fair use. Someone has to fight for it. There have to be suits, people have to get mad and we have to fight.

If you try to pass the risk to service providers and corporations, they'll just say, "we don't want to be the next Napster," and will most likely prohibit sharing and posting rather than take the risk. What the CC license does is allow the service provider to say, hey, all of the stuff here is tagged with copyright info and guaranteed by each of the people. Sue, them, not us.

For the individual who gets sued, yes, it's tought and we have to fight to help these folks (that's what the EFF is for), but having the individual who originally posts the stuff be responsible does a few things. It distributes the risk. It's much more likely for Hollywood to sue a big company with money than an individual. It will get people thinking about and fighting for their right to fair use and free speech.

I'm sure there will be a chilling effect and this chilling effect might be non-trivial, but my sense is that the chilling effect on service providers who have to "police content" will be so quick that we'll have restrictions on our free speech via technology faster than you can say, "Mickey Mouse."

So what does this mean to Joe CC user? When you are about to post a picture or a quote that is questionable from a free speech or fair use perspective, be prepared to defend yourself. But, as the Chicago Manual of Style says:

The Chicago Manual of Style
The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly. Furthermore, excessive caution can be dangerous if the copyright owner proves uncooperative. Far from establishing good faith and protecting the author from suit or unreasonable demands, a permission request may have just the opposite effect. The act of seeking permission establishes that the author feels permission is needed, and the tacit admission may be damaging to the author's cause.


Let's see. We have three people in this game. Original author A using a CC license. Another person B using A's content as a licensee. And some copyright holder C who says his copyright is violated by that content.

Your argument seems to be that you want individual authors (A) to be sued, as opposed to big corporations and service providers (B). You think that A should fight, not B.

However, the CC license is a contract between A and B. C is not a party to that contract. So the CC license won't stop C from suing B, if they prefer to do so. B can say "sue them, not us", but C can choose to sue B anyway. No contract C isn't a party to can remove any liability of B in his relation to C.

My objection to the warranty is that B pays nothing to A. So I don't think it's fair that A should take on any liability for B.

Disclaimers of all warranties have been standard for most licenses for donating content to the public, for example the GPL. This new policy of CC is departing from past standards in a major way.

I guess I was thinking that B was another person, not the service provider. I thought that CC would help get the service provider out of the loop.

As I understand it, A isn't taking on liability for B. A is guaranteeing that the content is his own to license.

Of course, in theory, this means that if B gets sued, then A has a liability. And it is true that someone could come up with frivolous, awkward suits which would draw A into a big mess that was not of his/her making. While A would have right on his/her side, he/she might not have the time or money to prove it.

However, this scenario is unlikely for these reasons:

1. Why would anyone bother doing this?

2. if the content is purely web-based, it could be dealt with without litigation. If everyone takes down the offending material, then it is very unlikely that litigation would proceed.

As far as I can see, the GPL does also imply a guarantee that the content does legitimately belong to the licensor. It's not beyond the bounds of imagination that a GPL licensor could get sued by a licensee if a claim was made against him by someone alleging infringement, and the licensor did not aid the licensee's defence.

(all my humble opinion of course, I'm not a lawyer, and I don't play one on the 'Net.)

The GPL expressively rejects the idea of an implied guarantee. See GPL, section 11. And it gives as a reason "because the program is licensed free of charge", which is right to the point. I object to slapping people with liabilities for their generosity in contributing to the commons.

If A's liability to B is only theoretical, then there is no point in including the warranty in the first place.

If on the other hand there is a real chance that B will be able to sue A under the terms of that warranty, then A is paying B the economical value of that chance. That's not fair, and the GPL understands that point. People using the CC license want to give away content for free. They don't expect to pay anyone anything.

Karl-Friedrich. I will have to go and read the license in more detail, but I guess I still think that it is important that people take some responsibility for the assertion that what you are publishing is in fact yours to publish. When I use something from your page, I want to know that you feel strongly that you have the right to grant me that license. As a service provider, I would also like to know that you understand that you are responsible for your assertion. I do understand your point and this issue is complex. I'm going to talk to the CC people again, study the license and the service agreements of various service providers and will try to loop back here with a more thoughtful posting.

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