I’ve long been concerned that Creative Commons (CC) licenses are not enforceable. I’d like to explain, but a bit of background is necessary first.
General Confusion About IP
My main focus here is copyright, one type of so-called “intellectual property,” or IP, since CC has to do with licenses (permissions) for copyright-protected works or authorship.
Now IP is an umbrella term encompassing a number of different, but related, areas of law, such as patent, copyright, trademark, and trade secret.1 Each of them is unjust and full of arcane, specialized concepts, non-intuitive and arbitrary rules, and ambiguous or even inconsistent provisions. It can be frustrating to discuss IP policy with laymen because of this. (And it’s always frustrating to discuss IP policy with “experts” because they almost always favor IP or at least take an ad hoc, unprincipled, utilitarian approach. They are never in favor of striking at the root or of radical proposals like copyright abolition, but only tepid and never-realized “reform.”)
The first problem is that most people can’t even keep the types of IP law straight. They talk about copyrighting an invention, though that’s what patents are for (Rothbard, in his critique of patent and state copyright, tried to articulate some limited defense of a type of private, contract-based protection for inventions, like mousetraps, using the term “copyright” to describe this).2 They confuse patent with trade secret. They confuse copyright infringement with plagiarism when these have nothing to do with each other. They confuse trademark with protecting consumers from fraud, even though this is a big lie (if it’s about consumer fraud why not just rely on fraud law? why is it the trademark owner who gets to sue the guy who defrauds his customers, instead of the customers having the cause of action? why can the trademark owner sue the guy who sells a knockoff purse even when the consumer knows it’s a knockoff? why can the trademark owner sue someone else for “antidilution” even when there is no consumer confusion whatsoever?).
And another problem is business people often use “IP” to refer to their knowhow or technology. “Our IP is our way of doing X,” etc. This seems to be some form of metonymy (or is it reverse metonymy?), in which people refer to the thing protected by IP law (designs, recipes, etc.), as IP itself. It does get confusing. And this is to the advantage of the state, and advocates of IP. Proponents are special interest factions; those harmed by IP are diffuse and ignorant of the details. The story of the state.
Most people do not understand IP law at all, yet they cling to bromides and slogans they’ve heard the intellectual propagandists sling around. They think copyright is meant to protect the author, and so on. They think copying information is somehow “theft” or “piracy”3 and that emulating others in the market is somehow “unfair competition,” even though, umm, competition is what the free market is supposed to be about.4
Copyright, Public Domain, Hypocrisy, and Ignorance
A strange criticism is often made of copyright opponents, due to the above-noted ignorance and confusion. As I noted in Copyright is very sticky!, often we opponents of copyright are accused of hypocrisy because we purportedly “copyright” our articles and books.
I’ve pointed out to such people innumerable times, to little avail, that copyright is a noun, not a verb (ever since the US modified its law per the evil, insidious Berne Convention). That is: you don’t “copyright” something–rather, you have a copyright in your original works of authorship as soon as you write them, automatically, courtesy of federal law. No copyright notice is required. No copyright registration is required. No action is required. You don’t “copyright” (or fail to copyright) your works. You have the right—the copyright—whether you like it or not. Berne requires signatories to do away with “formalities” like having to include a copyright notice or file a copyright registration (so now we have the horrible orphan works problem, inter alia.)
Well, then, why don’t you just “make it public domain,” some then retort, like snot-nosed ignoramuses. The problem is, there is no clear and good way to do this. As I explained in Let’s Make Copyright Opt-OUT, not only do we not have an opt-in system, as we should, and as we used to have (and as we have in patent law, where a positive act of applying for a patent is required for a patent to be granted)—copyright provides no way to get rid of it. It’s like other artificial, unjust positive rights granted by the state—such as the right to sue your employer for racial, sexual, or age discrimination, or your right to demand social security benefits—you cannot alienate these rights.
Why not just “make it public domain”? Gladly. I would if I could. But there is no mechanism provided for this. Merely saying “this is public domain” does not do the trick. Suppose you publish a novel and put “this is public domain” on the copyright page. Then later someone sells copies of it. You sue them for copyright infringement. What could the defense be? That you didn’t have a copyright? Nope. You did. Courtesy federal law which says the author has a copyright in works of authorship. The fact is the work is not public domain—that refers to works for which the copyright term has lapsed—not for works currently protected by copyright law but for which the author has somewhere dashed off a half-assed “this is public domain” comment.
So what we have here is a situation where the copyright system imposes copyright even on people who hate it, and does not let them get rid of it. And then, the asshole supporters of copyright blame those their system imposes copyright on for having copyright, or for not getting rid of it, even though there is no way to get rid of it. This is akin to the supporters of affirmative action accusing successful black people who oppose state-mandated affirmative action of hypocrisy—after all, say the statists, these blacks benefited from affirmative action while decrying it. Even though this accusation implicitly assumes the recipient of affirmative action did not really deserve his success but only got it due to the power-whites’ benevolence—a charge they usually vehemently object to when it is used to oppose affirmative action. It is bad enough to harm both innocent whites, and blacks, by foisting affirmative action (and anti-discrimination laws) on them, but it is even worse to then to blame them for hypocrisy for opposing it while “benefiting” from it, even though they have no choice about receiving this alleged “benefit.” This is a clear case of adding insult to injury. And we have a similar situation when copyright opponents are criticized for hypocrisy, for … having copyright imposed on them. Or for not getting rid of it—when it is impossible to do so. Come again? Such accusations drip with dishonesty and malevolence. Or maybe it’s just rank stupidity.
That said, I am all in favor of people getting rid of copyright if they can. I think a case can be made that a moral, libertarian person (thus ruling out anyone in favor of copyright) ought to refuse to sue anyone for copyright infringement, and ought to disavow it if he can. But what options are open to do this? As indicated above, there is no federal form to fill out, no box to check, that lets you relinquish your copyrights. “Well just don’t sue anyone!” someone might say. But this is commercially naive. Others need to know that you cannot win a copyright lawsuit against them if they use your work; otherwise they’ll feel a need to refrain from using the work unless they first seek and obtain permission. The reason people don’t use others’ works is they are aware it is copyrighted, and that they need to get permission unless they want to risk a lawsuit. If you want to release your work into the public domain as much as possible, you need to make it so that third parties can rely on your inability to win a copyright lawsuit against them.
Suppose I send my short story by email to Teeboy. I say “you are free to do whatever you want with this.” Then he publishes it. Now I sue him for copyright infringement. What’s his defense? Well he can produce the email which gives him permission. It’s a contract. A license. Permission. Or at the least, I would be estopped from complaining. (“Estoppel,” incidentally, is one of my favorite legal concepts, and indeed I built on it to develop a libertarian theory of rights. See New Rationalist Directions in Libertarian Rights Theory, Punishment and Proportionality: The Estoppel Approach, etc.) Of course one thing Teeboy can rely on here is his ability to prove the communication, since I sent it to him by email; we had a one to one communication. We negotiated, so to speak. Even if it was only oral, he could testify as to our conversation and potentially prove he had permission.
In a copyright-free world people don’t have to ask your permission to use information they learned from you. They don’t have to fear a lawsuit. In a copyright world, copyright holders could achieve a situation similar to this if they could simply forfeit their copyright. But federal law provides no way to do this; it in effect makes copyright inalienable. So this approach is out. So the other approach would be to somehow grant irrevocable permission to everyone in the world to use your works. Then anyone using your work would have a defense if you or your heirs were to sue for copyright infringement, since permission (license) is a defense to copyright infringement, just as someone invited to your house cannot be charged with trespassing. The problem is you don’t have a one-to-one contract with every third party in the world. So how do you set up a license that applies to everyone?
Suppose you just slap on the statement “this work is public domain” to our work. But this is simply untrue. It is not public domain—public domain means works whose copyright term has expired. That happens 70 years after the author’s death. Merely saying “this is public domain” or even “I hereby declare the term to be expired” doesn’t do it, any more than declaring “I hereby relinquish my right to sue all employers for age discrimination” has any legal effect. Still, if someone reads this “public domain” declaration and relies on it, and you later sue them, then they can probably escape liability by showing that you gave them permission (license). I.e., the fumbling and ineffective attempts to “make” something public domain could serve as sufficient communication of intent to grant a license, that is, permission, to use a copyrighted work. (Or, at the least, the copyright holder would be estopped from asserting copyright against someone who had relied to their detriment upon the public domain declaration.)
But unless we have the Kinsella-Teeboy email trail in a one-to-one situation as described above, we have a problem: how does the random third party prove that he had permission? Let’s say Kinsella posts his essay on his website, along with a legally inept “this work is public domain” tag. Well just by posting it on a public website, an implied license is granted for people to copy the file for purposes of personal viewing on their browsers. So Kinsella can’t sue John for clicking on a link to and reading the essay; Kinsella gave permission for such uses, implicitly, by putting it online. But what if Teeboy then republishes the essay in his for-profit book. After all Kinsella had written in a footnote, “this work is public domain.” So then Teeboy’s book comes out, and makes lots of money, which gets Kinsella angry (he hates it when fellow writers make money, you see, since he’s a misanthrope, like most copyright proponents effectively are). So Kinsella goes to WordPress, removes the “public domain” text, registers the copyright (you don’t have to register a copyright to have one, but you have to register it as a formality before you sue), then sues Teeboy. What is Teeboy’s defense? Well, that he had a license, or maybe some kind of estoppel argument. After all, Kinsella had a “this is public domain” notice on the essay when Teeboy copied and republished it.
Sure. But how does Teeboy establish that there was such a notice that he saw and relied on? Kinsella has removed it from his site. And suppose Kinsella had also disabled the WayBackMachine’s spiders so that there is no Internet Archive cache of the site either. Was Teeboy supposed to have done some PDF screen snapshot of his browser depiction of Kinsella’s site the day he copied the text? And archive that in some way guaranteed to be able to be authenticated at a future copyright trial? Really? No. No way Jose. No one will or can do this. Could Teeboy testify at trial that he remembers seeing some kind of permission notice? What if Kinsella has replaced it in the meantime with a CC-BY-NC license statement, meaning no commercial re-use is permitted? Maybe Teeboy won’t even remember what the original “license” said when he copied it. After all it’s just in a footer on Kinsella’s website. It’s not even in the text of the article he downloaded. Maybe when he gets the lawsuit he thinks, “Uh oh, I guess I messed up. Better call my lawyer and settle this.”
The problem is that there is not an actual one-to-one negotiated contract, with a paper trail and a document with signatures that each side can produce as evidence to show what terms were agreed on. There was never even a meeting of the minds between two parties who know each other. We have just a notice posted ephemerally on the footer of an article or site by the author, which might be removed or modified later. How can random third parties rely on this? Maybe it’s a setup. Maybe they will copy something based on some public domain clause, and then be sued later, after the clause has been disappeared.
The Problem with Third Party Licenses
And this gets me to my concern with Creative Commons licenses. How does the typical one work? It’s some line of text inserted in the footer of an article or a website on which the article appears. Often it’s inserted by the site owner, instead of the author, and says something like “this article is licensed under a creative commons __ license”. Now there a few odd things about this. First, if Kinsella writes a novel and signs a contract with Teeboy permitting Teeboy to republish it, then Teeboy can truthfully report “this version is reprinted with permission”. Because Kinsella granted Teeboy permission, as evidenced by an actual agreement between them. The comment is just a reference to a previously established legal fact that has independent existence and evidence (such as a copy of a signed document). The negotiated and signed contract creates (and can prove) the existence of the license; the notice Teeboy places on the work does not create the license, but just refers to it.
But if I just put an essay on my website and slap a “this essay is published under a CC-_ license”, what does that mean? Am I reporting that it is already under a license, as in the Kinsella-Teeboy case? If so, when was that license negotiated? Where is proof of it? No, that is not what is going on. Rather, by this language I am seeking to create a license. I am trying to bring a license into existence by the mere act of declaring that there “is” one. It’s bizarre. It’s like people believe in incantations—you can just declare legal facts to exist, as a magical Creator or something.
In any case, when I declare that the work “is published under a CC-BY license,” who is the license between? For license is permission, a contract of permission: between licensor (the author) and one or more licensees: in this case, it’s supposed to be a contract between me, as licensor, and everyone in the world, as (potential) licensees.
But I am afraid see many problems with this whole approach. The first is the common law doctrine of consideration. This means a contract is not binding as between A and B unless each one gave up something, agreed to something. The things exchanged need not be equal, but you have a contract to exchange something for nothing; you need at least a “peppercorn” in exchange. This is why many contracts (fictionally) say that A pays $1 (or $10) to B—to ensure there is a peppercorn of consideration. Otherwise the contract is not binding. So in a CC license, the author grants permission to everyone in the world. But what do they give in exchange that could suffice as consideration for the contract to be binding? Take the most liberal grant, CC-BY (CC0 I omit, since even CreativeCommons.org doesn’t claim it’s effective everywhere). In this case the author grants permission (license) to others to use the work—so long as they provide attribution. I suppose the requirement of the licensee to “provide attribution” could count as consideration, but it seems weak to me. (The common law doctrine of consideration is unlibertarian and unjustifiable. In civil law systems, consideration is not required, but there must be a lawful “cause” which is “the reason why” a party obligates himself. See La. Civ. Code, arts. 1966 and 1967“. I discuss this in A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, at pp. 16-18 and n.12.)
And a more serious problem is the evidentiary one. How does the “licensee”—the random guy browsing and using the web and copying content that appears to be creative commons—prove later that it “was” “licensed” if the notice has been removed? Imagine an older author who has a site, with his works up and with a CC notice on the footer of the site. Some author incorporates part of his writings into her new novel. Then the older author dies, and his family neglects his site, which then disappears. Now the young author has a successful novel. The heirs (children) of the old author notice this and get angry, since they have absorbed the stingy copyright mentality of our time. So they sue him. What is his defense? It cannot be fair use. And it cannot be “the work I borrowed from was in the public domain,” since it was not. It can only be, “well the original author gave me permission.” Okay, prove it. Where is your signed license agreement? Where is the contract. “Uh, I swear, I think I remember seeing it somewhere on the website I got it from… but it’s down now…” You see the problem.
Or consider this scenario. A posts an article on his site. Later B posts A’s article on B’s site, with the notice: “Published under a creative commons license.” As an example, consider Libertarian Papers, the journal I established in 2009. Each article carries this notice: “This article is subject to a Creative Commons Attribution 3.0 License (creativecommons.org/licenses).” And the reason is that I have each author sign an agreement between him and the journal where he agrees to grant this license upon publication, to the public. The statement in the * footnote is not the grant; the grant is a signed contract with the journal. But in the case of A and B just noted, what if B never got A’s permission, or never got a signed contract? So C then includes A’s essay, from B’s site, in a book. Then A sues C for copyright infringement. Unless C can prove that A authorized B to put the CC notice up, how is it a defense? In other worse, when you see a CC notice on an article on the web, unless it’s on the author’s own website (and how do you really even know that?) then how can you be sure it’s the copyright owner that is actually attempting to grant a CC license? How can any purported CC license be relied on? Suppose you are a major publisher and want to include an article you have seen online in a new commercial book. Normally the publisher contacts the author and asks permission. But if there is a CC license (let’s say it’s a broad one, like CC-BY) the publisher should not have to ask the author permission. It can rely on the CC license grant. But it can’t. It can’t know that it’s legitimate, binding, enforceable, or provable. Or so it seems to me. So it has to do what it has to do normally: contact the author and ask permission. So … what is different than if a CC license had never been granted?
So I have serious concerns that CC agreements are not enforceable. Or that they are not obviously enforceable—which is enough to mean that others will not be able to rely on it being effectively public domain, and will feel compelled to seek the permission of the author to avoid liability—just as is done now, under the copyright system.
Examples of CC
Let’s take some examples. On my site and others such as that of Libertarian Papers, I include a footer with the CC-BY mark. Mises.org also puts CC-BY on its site, and on the copyright page of its books.
Some sites use -SA (share alike, similar in some respects to copyleft) or -NC (non-commercial). I don’t like -SA much, although I grok why some prefer it to -BY, but in any case I really despise -NC.5
The visionary Leonard Read used to put this notice on FEE publications: “Permission to reprint granted without special request.”6 LewRockwell.com adopts a similar approach: “Copyright © 2012 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.”
QuestionCopyright.org uses a a similarly informal disclaimer: “Copyright notice: These web pages are devoted to questioning the idea that copyright is necessary for the promotion of creative expression. Therefore, our content is released to the public and can be considered to be in the public domain: you may copy, share, excerpt, modify, and distribute modified versions of this and other pages from QuestionCopyright.org. We ask, but do not require, that you credit QuestionCopyright.org when appropriate and link back to the original article for online citation.”
In Mike Masnick’s Sky is Rising presentation, he appends to the end: “Public Domain Notice: This work is dedicated to the public domain.”
Stating that a work is “considered to be” or is “dedicated to” the “public domain” would probably be read to indicate a license (permission) on the part of the author (presumably the copyright holder) to others to use the work, even if the work is not technically in the public domain. Or at least the owner would be estopped from objecting to some third party’s use of the work if it was in reliance on some earlier “this is public domain” statement that accompanied the work. I imagine the same goes for various CC notices. But is a CC license, or a less formal one such as others noted here, actually enforceable as a contract?
This question is addressed on the CC wiki:.
Are Creative Commons licenses enforceable in a court of law?
Creative Commons licenses are drafted to be enforceable around the world, and have been enforced in court in various jurisdictions. To CC’s knowledge, the licenses have never been held unenforceable or invalid.
Please note that CC licenses contain a “severability” clause. This allows a court to eliminate any provision determined to be unenforceable, and enforce the remaining provisions of the license in question.
Now if you follow the foregoing link you get a skimpy table of cases:
|09-1684-A (Lichôdmapwa v. L’asbl Festival de Theatre de Spa)||Belgium court found a spa liable for violating the CC BY-NC-ND license on a musical work.|
|Chang v. Virgin Mobile||Flickr CC BY photo used in an Australian phone advertisement|
|Curry v. Audax||Dutch court upheld CC BY-NC-SA license when Flickr photos were used in a tabloid|
|Gerlach vs. DVU||German court upheld CC BY-SA and granted an injunction against improper use of a photo|
|Jacobsen v. Katzer||Open source software case where violation of the open source license did create copyright infringement|
|SGAE v. Fernandez||Spanish court dismissed suit by a collecting society when bar owner could prove was playing CC licensed music|
|SGAE v. Luis||Bar claimed to play only CC licensed music but also played non-CC music, found liable for copyright infiringement of non-CC music|
|TA 3560/09, 3561/09, Avi Re’uveni v. Mapa inc. ישראל: לראשונה, ביהמ”ש אכף רישיון קריאייטיב קומונס||Israeli court found person liable for violating a CC BY-NC-ND license on photos|
As far as I can tell none of these cases shows a plaintiff-copyright owner who tries to deny his previous “grant” of a CC license in an attempt to assert copyright, and a successful showing by the defendant-victim that the plaintiff’s copyright assertion is thereby blocked or estopped. They primarily seem to show that CC licenses are limited and still permit copyright claims to proceed. For a case showing that CC is enforceable against the licensor (which is all that matters), we would need a case where someone used a copyright-protected work in a way that is normally considered infringing, and where they can prove they did this in reliance on some kind of CC notice embedded in or associated with the work, and where the copyright holder nevertheless sues for copyright infringement but the user wins because it is considered a licensee whether the current copyright owner (who may not be the same entity as the one that put up the CC notice originally) likes it or not. Now my guess is that in such a case, if the defendant can prove that there was a CC notice, then the copyright owner will lose, if only on estoppel grounds. But to my knowledge there are no such cases yet. And there are unlikely to be, for some time, since people that put up CC notices are not usually the type of people to sue for copyright infringement. But given the fact that websites come and go, and that copyright lasts for life of the author plus 70 years and are inheritable, is it hard to imagine cases where this might happen/? For example suppose some friendly artists has a CC notice on his site now and many uses are thus made of his art. Then he dies, and his site’s domain is not renewed and it disappears. Twenty-five years later a malicious heir sues various users of the work. How can they prove they “had” a license?
That said, what can one do, as a copyright holder who hates copyright, but try? Here is what I have put into the * footnote of a forthcoming law review article. I hope it works:
I hereby grant a Creative Commons Attribution 3.0 License (creativecommons.org/licenses) in this article. Were it possible to strip it of copyright entirely I would do so; alas, thanks to statist copyright law, this is no easy task. See Stephan Kinsella, “Copyright is very sticky!,” Mises Economics Blog (Jan. 14, 2009), blog.mises.org/9240. I hereby commit not to assert or enforce the attribution requirement of the foregoing license, while lamenting that this commitment may not be legally effective.
That said: if anyone knows of any definitive law review articles or cases that establish the enforceability of CC licenses, please let me know.
In the meantime, I am sticking with CC-BY in the hopes that it will at least work an estoppel, but avoiding CC0 because of complexities and fear that it might not work.