# Defending Creative Commons

- Author: Joichi Ito
- Date: 2003-05-14T06:34:35Z


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 StyleThe 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.





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Intellectual Property