The Creative Commons License: Brought to You By The Copyright Act!

Stephen Carlisle May 26, 2017

One of the most pervasive, and silliest, myths that continues to get passed around the internet is that somehow copyright is this huge drag on free speech. It’s simply not the case. The basic reasons are:

• The myth ignores the doctrine of independent creation; namely, if you didn’t copy it from someone else, it’s yours to do with as you wish.
• The myth ignores a main tenet of copyright law that facts, scientific principles, history, methods, systems, individual words and short phrases all do not qualify for copyright protection.
• Any author can choose the level of protection they desire, from complete restriction of rights to none at all, essentially dedicating the work to the public domain.

Which brings us to the Creative Commons license. This is often pushed by anti-copyright forces, namely the “copyright deniers” at organizations like the Electronic Frontier Foundation and Public Knowledge. The strange thing is that no one that I talk to on the pro-copyright side of things has any problem with this. All we want is for the author to be able to protect their work in any manner that the author sees fit, as long as that level of protection the author claims is respected and honored by others.

A while back, a librarian at NSU forwarded to me this article by Richard Poynder titled “Copyright: The immovable barrier that open access advocates underestimated.” ¹ Amongst its bold pronouncements:

“[Open Access] advocates underestimated the extent to which copyright would subvert their cause… [I]n underestimating the extent to which copyright would be a barrier to their objectives, OA advocates have enabled legacy publishers to appropriate the movement for their own benefit, rather than for the benefit of the research community, and to pervert both the practice and the concept of open access.” ²

You don’t have to go far to see where this is going. Especially when the author is throwing around the words “legacy publishers” as a pejorative, meaning “long standing business models which are getting in the way of whatever it is that we want.”

Except that, as I trudged through the 36 pages of this polemic, one thing became abundantly clear: it wasn’t that copyright was getting in the way. The problem was that the academics and researchers who thought they were at the vanguard of some sort of Open Access utopia didn’t understand the terms of the Creative Commons license that they were connecting to their work. They also didn’t understand that by handing over their work to a publisher, that they just might lose some rights to control it.

The Creative Commons licensing scheme has multiple levels to it. ³ Other than releasing your work to the public domain (abandoning your claim to copyright), the least restrictive license is the “CC-BY” license. This was the type of license recommended by this particular Open Access group.

“OA purists now also insist that only content that has been made available with a CC BY license attached can claim to be libre, and so classifiable as open access.” ⁴

The Creative Commons website describes it like this:

“This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.” (emphasis added).

So, imagine the utter shock when the academics discovered that people were making copies of their work and charging for them. This is what happens when Pollyanna idealism meets cold hard reality. Or when you simply don’t bother to read through and consider the implications of the license selected. (N.B. This is why we have lawyers.)

So what if this activity violated the license? What would the remedy have been for the aggrieved academic?

The answer, quite surprisingly for most people, is sue for copyright infringement.

The Creative Commons license does not get rid of copyright, unless of course you dedicate your work to the public domain. A Creative Commons license of “CC-BY” or greater simply waives some of your rights under the Copyright Act. It does not waive all of them, especially the right to sue for infringement.

Consider the case of photographer Larry Philpot. ⁵ He made available numerous photographs under the Creative Commons Attribution-Share Alike License. According to Creative Commons:

“This license lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms. This license is often compared to ‘copyleft’ free and open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use. This is the license used by Wikipedia, and is recommended for materials that would benefit from incorporating content from Wikipedia and similarly licensed projects.” ⁶

The Defendant, Music Times, LLC, reproduced and distributed two photographs in a manner which did not comply with the license terms. Though the opinion does not detail precisely what those items of non-compliance were, the fact that the Plaintiff pled but later abandoned DMCA claims, we can guess that the photos were distributed without the required attribution. The defendant failed to respond and was defaulted.

But here’s the pickle the Plaintiff finds himself in: he has no damages. His license essentially gave his work away for free. There is no monetary loss to the photographer. He could proceed along the lines of some sort of loss of reputation by the failure to attribute, but those would be mighty speculative and hard to prove.

But wait, this is copyright infringement. There is the availability of statutory damages. ⁷ Yes, that great bete noir of the EFF rides in to rescue the case of this Creative Commons user who is willing to give his work away for free. The Plaintiff need not prove any economic loss at all. He simply asks the Court to award him a sum between $750 and $30,000 per work infringed.

In fact, the Plaintiff provided to the Court no evidence of “any loss of licensing fees.” ⁸

However, the Court finds that “Defendant’s violation of Plaintiff’s rights must be accepted as deliberate and purposeful.” It awards $5,000 in damages and $400 for the filing fees. ⁹

So let’s step back and take stock. Under the Creative Commons license, you are licensing your work for free. Yes, there are restrictions, but you are licensing your work for free. In a normal breach of contract situation, you have to prove that you have been damaged by the breach. If your monetary damages are $0, try finding an attorney willing to take on this case. Or perhaps you are the brave soul willing to pay an attorney several hundred dollars per hour to recover no money. Every attorney I know that has heard a client say “it’s not about the money, it’s about the principle” knows better than to accept this as true. In the end, it’s always the about money. Just wait until the legal bills start piling up.

In the opinion, the Court never takes up the issue of whether a contract has been actually formed. If one has been formed, then the remedy is for breach of contract, not copyright infringement and “poof” goes the claim for statutory damages. So what is the “tipping point” here? Suppose someone claiming a license by Creative Commons complies with some, but not all of the conditions. Infringement or breach of contract? Suppose the person claiming a Creative Commons license complies with the terms, but then stops doing so. Infringement or breach of contract?

Here, assuming that the terms we never complied with, the Court seems comfortable with treating this not as garden variety breach of contract, but copyright infringement. This extra factor carries with is a whole list of presumptions and remedies favorable to the author, including, as we have seen, statutory damages.

Because without the copyright laws, the whole concept of the Creative Commons is a toothless tiger. There is no viable method for enforcing it, except for pleading copyright infringement.

So there we have it. The Creative Commons…brought to you by the Copyright Act.