The Creative Commons organization is celebrating its 10th anniversary this week.

Founded in late 2001 by Lawrence Lessig, Hal Abelson, and Eric Eldred (of Eldred v Ashcroft fame), the organization sought a techno-utopian “legal insurrection” that would “provide an alternative to traditional copyrights by establishing a useful middle ground between full copyright control and the unprotected public domain. Today, the organization struggles for relevance as interest in the principles it embraces continue to decline.1

Perhaps the most visible output of the Creative Commons organization are its various licenses. These licenses are drafted by, but not administered by, the Creative Commons organization. All the licenses require attribution, or credit, of the original author by licensees. The six licenses offer some combination of whether or not the creator allows commercial usage of her works, derivative uses, and a “share alike” provision (where downstream uses must be licensed under the same terms as the original license). Creative Commons also provides marks to indicate that a creator waives all rights to her work, or that a work is in the public domain.

The Creative Commons licenses are just one of many public copyright licenses. Such licenses owe their origins to, and are most often used for, free and open source software. Though there are distinctions between “free”, “open source” and “public”, it is likely that the majority of such licenses are public.2 The distinctive feature of public copyright licenses — what sets them apart from negotiated or private licenses — is that permission to use the work under the terms of the license is given ex ante to anyone in the public. In this fashion, public copyright licenses are similar to “clickwrap” or “browsewrap” license agreements.

But the organization, which has raised around $30 million over the past decade,3 does more than just draft these licenses. Creative Commons is involved with a number of initiatives to provide greater public access to scientific research, educational tools, and government data.

But today I want to focus on the licenses and how they have been handled in courts.

Creative Commons in Courts

The Creative Commons wiki includes a page devoted to case law from all over the world involving Creative Commons licenses. Several of these cases only involved Creative Commons licenses collaterally.4 One would note the small number of cases across the globe in the past 10 years. The dearth of litigation over Creative Commons licenses should not be surprising, as their very nature suggests that the majority of licensors are uninterested in pursuing legal remedies for uses of their works.

Commentary on cases involving Creative Commons licenses seem to indicate a concern over whether courts would have trouble enforcing the terms of the licenses, but as the cases below indicate, courts have had no such trouble, treating the licenses the same as any other copyright license.

Curry v. Audax — In one of the first cases confronting the enforceability of a Creative Commons license, a Dutch court enjoined a tabloid in 2006 from future reproduction of photos taken by Adam Curry, a former MTV VJ, which had been uploaded to his Flickr account. The BY-NC-SA license was accepted as valid by the court without discussion, and despite the tabloid’s argument that it was misled by the notice “This photo is public” accompanying the images. However, the court denied monetary damages to Curry. It found that the tabloid had failed to disclose a copy of the Creative Commons license with the photo, but since it had included a traditional copyright notice (“Photos © Adam Curry”), there was no evidence of harm arising from the failure of disclosure. The court also did not find harm arising from the commercial use of the photos in part because the photos are freely available online.

Jacobsen v. Katzer — Though this 2008 US case did not involve a Creative Commons license — it instead dealt with the free and open source Artistic License — the Federal Circuit’s decision is likely applicable to Creative Commons licenses. Indeed, the court referred to CC licenses at several points in its opinion. What’s notable about this decision is that it is one of the few court decisions involving public licenses that includes substantive discussion of their enforceability. Here, Jacobsen had written software that allowed model train enthusiasts to control their trains via computer and released the software under the Artistic License. Katzer was alleged to have copied portions of this software for his own non-free software program in violation of the terms of the License. Jacobsen moved for a preliminary injunction against Katzer, which was denied by the District Court after it held the violation was a breach of contract rather than copyright infringement, which creates no presumption of the irreparable harm necessary for a a preliminary injunction. The Federal Circuit reversed the District Court’s ruling, finding that violating the terms of the Artistic License was copyright infringement, not breach of contract. Broadly speaking, this holding is better for creators, as the remedies for copyright infringement better align with their goals.

Chang v. Virgin Mobile — The black eye of the Creative Commons organization, this litigation began when mobile phone company Virgin Australia used a photograph taken from Flickr in an advertising campaign. The photo was of a minor girl and uploaded by her church counselor, who published it under a CC BY license. Creative Commons itself was named in the complaint for negligence regarding its license, but they were voluntarily dismissed from the action. The District Court ultimately dismissed the suit for lack of personal jurisdiction. Nevertheless, the suit raises significant questions. Chang alleged invasion of privacy alongside copyright infringement; had the suit gone forward, Virgin may have faced liability under this cause of action even if it had complied with the CC license. I say “black eye” because this case highlights the ease one may find one’s works being used contrary to one’s wishes under a CC license. In addition, it showcases the pitfalls of the license, namely, the absence of any help from the Creative Commons organization and the lack of a forum selection clause.

Gerlach vs. DVU — A German court granted a preliminary injunction in October 2010 against a “German far-right” political party for copyright infringement.5 The copyright owner had uploaded a photo to Wikipedia under a CC BY-SA license. The political party copied the photo onto its own website but did not include attribution or a copy or link to the license deed. The court accepted the enforceability of the Creative Commons license without comment. The Creative Commons wiki notes that presumably, had the political party complied with the license terms, the use would have been legal.

Lichôdmapwa v. L’asbl Festival de Theatre de Spa — In October 2010, a Belgian court held a theater company liable for infringing the copyright of a musical work licensed under Creative Commons. As in the above case, the Judge upheld the validity of the CC BY-NC-ND license without discussion, noting only that Dutch, Spanish and American courts have upheld their validity. It found that the theater had violated three of the license’s terms: the use was commercial since the company used the work in an advertisement, the company had modified the work contrary to the prohibition on derivative works, and the company had failed to provide attribution.

Avi Re’uveni v. Mapa inc. — An Israeli court, in 2011, found a book publisher liable for copyright infringement of photographs uploaded to Flickr and released under a CC BY-NC-ND license. However, it appears (I’m unable to locate an English version of the opinion) that there was no discussion of the license’s text; according to one report, the court concluded “It was simply an infringement of copyright. Period.” What’s more, the court noted that failure to attribute was a violation of moral rights, making any fair use defense inapplicable.

No. 71036 N. v. Newspaper — This little discussed case originates from a Rabbinical court in Israel in 2011. I’m not familiar with Rabbinical law, and no English translation of the court decision seems to be available, so I’m relying solely on the Creative Commons wiki for the facts. The dispute here was between a photographer who had posted photos online under a CC BY-SA license and a newspaper which had reprinted them without attribution. The court treated the CC license as any other copyright agreement and found that the newspaper was liable because of a religious/moral obligation to adhere to the license’s terms and the copyright laws of Israel.

Using Creative Commons licenses

Should creators use Creative Commons licenses? The idea behind the licenses is a good one: copyright gives creators the choice of how and when to exploit the products of their labor. But unfortunately, despite the ease in using the licenses — or perhaps because of this ease — creators and users should take note of some concerns raised about them that urge caution.

Noted copyright scholar Jane Ginsburg raises some of these concerns in her 2009 article Public Licenses: The Gift That Keeps on Giving. In 2007, ASCAP addressed some of the defects in the licenses in its article 10 Things Every Music Creator Should Know About Creative Commons Licensing. Others who have examined these licenses include the Copyright Alliance in What is a Creative Commons License? and attorney Chris Castle, who has written on specific concerns for musicians and co-writers.

Chief among the concerns raised in these articles is the fact that Creative Commons licenses are irrevocable, that the licenses allowing derivative works remove the ability of copyright owners to prevent objectionable derivative works (for example, modification of works by political parties or interest groups that a creator disagrees with), and the fact that the Creative Commons organization merely provides licenses and does not help in any way with enforcement or administration of the licenses. Other licensing entities and collecting societies do indeed monitor uses of specific licenses they administer to ensure compliance and administer royalties.

There are concerns for users of Creative Commons licenses as well. As noted above, the licenses have a number of terms, like the requirement that the license language itself is copied or linked to, that many currently do not comply with. And several of the cases dealing with CC licenses have involved situations where these conditions have not been met. Second, the onus is on the user to ensure that the work is indeed licenseable. Though the terms of the CC licenses include a warranty that the licensor is authorized to release the work under the license, the organization itself does not verify this. There is nothing stopping someone from slapping a CC license on a work without authority, or ensuring that any underlying works can be licensed in such a manner. Finally, a CC license only covers copyright. Works may require other permissions — for example, photographs or videos that include people may implicate rights of publicity or privacy that are not covered by the license.

In the end, creators should approach Creative Commons licenses with the same amount of diligence as any other deal offered to them. Whether or not the license is appropriate is a decision for the individual creator.

Footnotes

  1. See, for example, Anil Dash, The Web We Lost (Dec. 13, 2012); Brian Proffitt, GPL, copyleft use declining faster than ever, ITWorld (Dec. 16, 2011). []
  2. See Jordan Hatcher, Open Licenses vs Public Licenses, Open Knowledge Foundation Blog (Oct. 15, 2010), “I haven’t done a full survey, but the majority of open licenses (in terms of popularity) probably also fit the definition of public licenses”. []
  3. Tax returns from 2002-2010 show total contributions and grants of $25,994,142. Though I was unable to find more recent returns, adding the average yearly contributions and grants for two years to this total would put the estimated total through 2012 at $31,770,618. []
  4. These include SGAE v. Luis and SGAE v. Fernandez. []
  5. See German court enforces Creative Commons license for more background. []