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Thursday, October 06, 2005
Creative Commons
I've heard a bit about this "copyright of the future" business, but never really looked into it until today. It all seems rather interesting - the idea, as I gather it, is to allow for something of a spectrum between "all rights reserved" (no one can do anything with your work) and "in the public domain" (anyone can do anything they want with your work). So a Creative Commons license allows one to have options like "you can do stuff with my work, so long as you don't profit from it", and so on.
What I can't seem to get a straight answer on, however, is the legality of all this. Would a court uphold these various and sundry copyrights, were they breached? How can this creative commons organization even write these legal contracts? Colin, you're a lawyer (says I to the law student of like 5 weeks), what's the deal here? Or anyone else know more about this?
I've heard a bit about this "copyright of the future" business, but never really looked into it until today. It all seems rather interesting - the idea, as I gather it, is to allow for something of a spectrum between "all rights reserved" (no one can do anything with your work) and "in the public domain" (anyone can do anything they want with your work). So a Creative Commons license allows one to have options like "you can do stuff with my work, so long as you don't profit from it", and so on.
What I can't seem to get a straight answer on, however, is the legality of all this. Would a court uphold these various and sundry copyrights, were they breached? How can this creative commons organization even write these legal contracts? Colin, you're a lawyer (says I to the law student of like 5 weeks), what's the deal here? Or anyone else know more about this?
Comments:
Cool concept. Before continuing, let me add the following caveat: the only thing law school has taught me is certain is that there's no certainty with regards to legal resolution. Despite its claims to logic, reasonableness and "scientificity", the law is a subjective animal. This is why lawyers don't make promises about trial results, not even in those cases common sense claims are crystal clear.
Now, the first thing that struck me when I read the brief description of the concept is that there wasn't a reliable way to protect material from use without resorting to copyright. You might think that having to agree to a rider before entering a website would be sufficient, but I have serious doubts as to that. There are issues with regards to understanding (did they have any idea what they were agreeing to), seriousness (were they at all serious about abiding by the rules), possibly unconscionability or unequal bargaining power (basically abuse of power resulting in non-consensual/non-binding agreement), and probably many other things I know even less about that the laundry list above.
All that said and done, these people obviously thought about that and came up with a much better concept. From what I gathered from reading the legal jargon off the contract on creative commons itself (http://creativecommons.org/licenses/by/2.5/legalcode), the creator of the content actually takes out a copyright on the material. This protects the material from use (as much as copyright ever does, anyway). Then the contract itself grants the person wishing to use the contract certain rights to the material, basically giving them restricted use under the terms.
Now, as to the enforceability, there are myriad issues of which I'm mostly unaware (but I'm aware that I'm unaware so there). We have talked about the process of offer, acceptance and consideration (and talked about how it isn't really the best model for contract law. But anyhoo). The basic concept is that for a contract to be binding there has to be an offer (in this case, the contract posted via hyperlink on the website), acceptance (the offer here states implied acceptance when you use the material. I'm not sure what the issues are surrounding applied acceptance, but I'm sure they exist) and consideration (basically, the person receiving the promise has to give something in exchange for there to be a binding contract).
The issue of consideration is complicated. One of the easiest issues is that the consideration doesn't have to be fair, but does have to be non-negligible. For instance, if Geoff were to promise to give me $100 the next time I see him and I were to send him an email saying I accepted his offer then there would be no binding agreement because simple acceptance isn't consideration. However, if I'd also included in that email a picture of some dirty dishes "in consideration of the promise" then there might be a binding agreement (leaving aside all matters of seriousness, etc) since the trouble I took to take the picture and attach it would be consideration of the promise. Just because Geoff doesn't get anything out of it doesn't mean it isn't consideration.
How consideration applies in this case is that the content creator offers you the rights to use their material and you accept those rights while agreeing to abide by the conditions they set out. Sounds like consideration doesn't it? But wait... before agreeing to the contract you were already bound by those conditions (because they're a subset of the conditions of copyright!). So... you've agreed to do something you were already bound to do. Uh oh.
Now, the above argument may be flawed or just plain wrong. I make no guarantees (god, I'm going to be so good at this lawyer thing ;), but I think that there may still be some consideration in the picture. Basically, by using the materials, you give the artist more exposure and that is of value to them and might count as consideration.
Or not.
Now, the first thing that struck me when I read the brief description of the concept is that there wasn't a reliable way to protect material from use without resorting to copyright. You might think that having to agree to a rider before entering a website would be sufficient, but I have serious doubts as to that. There are issues with regards to understanding (did they have any idea what they were agreeing to), seriousness (were they at all serious about abiding by the rules), possibly unconscionability or unequal bargaining power (basically abuse of power resulting in non-consensual/non-binding agreement), and probably many other things I know even less about that the laundry list above.
All that said and done, these people obviously thought about that and came up with a much better concept. From what I gathered from reading the legal jargon off the contract on creative commons itself (http://creativecommons.org/licenses/by/2.5/legalcode), the creator of the content actually takes out a copyright on the material. This protects the material from use (as much as copyright ever does, anyway). Then the contract itself grants the person wishing to use the contract certain rights to the material, basically giving them restricted use under the terms.
Now, as to the enforceability, there are myriad issues of which I'm mostly unaware (but I'm aware that I'm unaware so there). We have talked about the process of offer, acceptance and consideration (and talked about how it isn't really the best model for contract law. But anyhoo). The basic concept is that for a contract to be binding there has to be an offer (in this case, the contract posted via hyperlink on the website), acceptance (the offer here states implied acceptance when you use the material. I'm not sure what the issues are surrounding applied acceptance, but I'm sure they exist) and consideration (basically, the person receiving the promise has to give something in exchange for there to be a binding contract).
The issue of consideration is complicated. One of the easiest issues is that the consideration doesn't have to be fair, but does have to be non-negligible. For instance, if Geoff were to promise to give me $100 the next time I see him and I were to send him an email saying I accepted his offer then there would be no binding agreement because simple acceptance isn't consideration. However, if I'd also included in that email a picture of some dirty dishes "in consideration of the promise" then there might be a binding agreement (leaving aside all matters of seriousness, etc) since the trouble I took to take the picture and attach it would be consideration of the promise. Just because Geoff doesn't get anything out of it doesn't mean it isn't consideration.
How consideration applies in this case is that the content creator offers you the rights to use their material and you accept those rights while agreeing to abide by the conditions they set out. Sounds like consideration doesn't it? But wait... before agreeing to the contract you were already bound by those conditions (because they're a subset of the conditions of copyright!). So... you've agreed to do something you were already bound to do. Uh oh.
Now, the above argument may be flawed or just plain wrong. I make no guarantees (god, I'm going to be so good at this lawyer thing ;), but I think that there may still be some consideration in the picture. Basically, by using the materials, you give the artist more exposure and that is of value to them and might count as consideration.
Or not.
Wow, awesome response, thanks. As to the subjectivity of the law, I started thinking about what I'd heard judges decree in certain trials, and once I remembered that, I really became aware of how subjective the law is, as you say. I suppose it only makes sense, as there are a million shades of grey in the real world.
From what you've said about consideration, I would think that exposure would be
consideration, but as you say, it's not totally cut and dried. I suppose one of the main things a lawyer needs to able to do is find elements of the situation that makes the laws bend their way, and then convince others (namely, the judge) of that point of view.
Seems like you've learned a lot in a few weeks. :)
From what you've said about consideration, I would think that exposure would be
consideration, but as you say, it's not totally cut and dried. I suppose one of the main things a lawyer needs to able to do is find elements of the situation that makes the laws bend their way, and then convince others (namely, the judge) of that point of view.
Seems like you've learned a lot in a few weeks. :)
I do feel like I've learned quite a bit these past few weeks.
With regards to consideration, I think my explanation was a little sloppy. In particular, consideration means that the person accepting the offer has to suffer some legal detriment (and I think that detriment has to be at the request of the offeror). In other words, they either have to refrain from doing something they're legally allowed to do or do something they're not legally required to do.
In this case, since they aren't required to use the materials doing so constitutes consideration. The fact that this might help the creator of the materials is actually irrelevant.
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With regards to consideration, I think my explanation was a little sloppy. In particular, consideration means that the person accepting the offer has to suffer some legal detriment (and I think that detriment has to be at the request of the offeror). In other words, they either have to refrain from doing something they're legally allowed to do or do something they're not legally required to do.
In this case, since they aren't required to use the materials doing so constitutes consideration. The fact that this might help the creator of the materials is actually irrelevant.
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