Wednesday, March 15, 2006

Adam Curry and Creative Commons License

Adam Curry is an American well known for his days at MTV, as a podcaster (the Daily Source Code), at OnRamp, Inc. and THINK New Ideas, Inc., and as a celebrity (an amorphous and sometimes annoying species of self-promoters). His Dutch wife Patricia is also a celebrity and he seems determined to make his 15 year old daughter Christina one too, while loudly complaining about invasion of her privacy. Here is a link to his blog. Here is a Wikipedia entry about him, which notes "Some controversy was caused by four edits .... Curry made to Wikipedia's article on podcasting by removing mention of early work done by others ... Curry later apologised, saying he had not understood how to use Wikipedia editing functions and had been unaware of some of the prior work done by Kevin Marks."

Recently, Curry has been in the news for a suit he brought, in Holland, against what he describes as a Dutch gossip rag, for among other things reproducing photographs in which he states he owns copyright and published on Flickr under the Creative Commons "attribution-non-commercial-share alike" license. Here is his Flickr page. The results of the court's judgment are the subject of intense disagreement. Here is a link with a very impressive number of comments, some quite personal and/or profane: http://curry.podshow.com/?p=49 .

There does appear to be agreement that the court found the Creative Commons license to be enforceable and violated, although the damages were very low. The violation found appears to have been copyright infringement, not breach of contract, leading one to wonder how the case might have been decided in the U.S. if a fair use criticism or comment defense was raised.

5 comments:

billb said...

Honest questions: In the US, if I distribute a copyright-protected US work in violation of the license, is that a contract or copyright dispute? Does it matter if the license was negotiated and signed by both parties? Does the text of the license matter in determining the answer to the previous two questions?

William Patry said...

billb:

The answer to your questions is likely to depend on whether the contractual term violated is construed as a breach of a covenant or of a condition. Where there is a material breach of a condition, you can elect which route to pursue, contract or infringement.

billb said...

Thanks for the info. I suppose the remaing question is, in the US, is a license always a contract?

On second thought, maybe that's a little obtuse. What I'm really curious about is why would anyone presume that Curry's remedy would be in a contract rather than copyright setting? The CC licenses are, as best as I can tell, not contracts. Any one is free to consume the works covered under CC licenses in any way they like. However, the various CC licenses make various grants to distributers based on their status (e.g. non-commercial distribution: OK, commercial: not OK, changes must be redistributed as well; etc.), which are in some sense "looser" than what copyright would allow (no distribution, period). Where's the contract in this? Where's the consideration, the meeting of the minds, etc.?

William Patry said...

I think most (non-implied) copyright licenses are regarded as contracts, albeit another way to look at nonexclusive licenses (as in the CC license) is as a promise not to sue.

Paul Westman said...

billb's comments are well-taken.

Typically, as William Patry notes, copyright licenses are contractual in nature.

However, this need not always be the case.

Fundamentally, copyright is a personal property right. An author may grant a nonexclusive license to use his work in specified ways, but not in others. Such a license could be one-sided, that is, not signed by the grantee(s), and, where permission to reproduce is granted freely (without charge), consideration and other necessary contractual elements might be lacking. Violations of the terms of the license would constitute infringement, not breach of contract.

I am unfamiliar with the ins and outs of Creative Commons; CC might constitute "a promise not to sue" despite violations of its conditions (although Curry's action seems to belie this). However, such would not automatically be the case in other situations.

An example would be the common nonexclusive license known as a "permission." If a copyright owner (directly) granted to another permission to quote his work, violation of the terms of the permission constitute infringement.

The permission need not be negotiated, or signed by both parties.

A license is not always a contract.

Apart from (free) permissions and Creative Commons licenses, a third example would be licenses frequently granted near copyright notices by Internet authors and publishers. Such licenses grant permission to freely reproduce or distribute on the Internet for non-commercial purposes, or contain other limitations.