Lawsuit Over Use Of Creative Commons Content Raises Contract vs. Copyright Issue

from the the-battle-continues dept

One of the more interesting issues related to copyright law is how contract law meshes with copyright law. For example, there was the recent case (still going through the appeals process) over whether or not a copyright holder (a record label in this case) could effectively wipe out First Sale rights (allowing you to resell what you bought) via a contract. As of right now, the US courts have said no — and that’s important. If you could supercede copyright laws with contractual terms, it would make the limitations on copyright law effectively meaningless, because every product would quickly include some sort of licensing agreement that took away fair use, first sale and other exceptions (including, potentially, the idea that the copyrights might someday expire). This is not a US only issue, of course. Just recently we’ve seen blogs from elsewhere also start to discuss if contracts can increase limitations beyond copyrights.

However, there is a new lawsuit in the US that may be worth following on this topic. It involves GateHouse Media — a company that has been ridiculously aggressive in trying to stop others from doing things as simple as copying a headline and a lede. In this case, the primary issue is a little (if only slightly) more reasonable, in that the lawsuit involves a company that sells nice looking plaques to people with a copy of a newspaper article about them or their company. GateHouse offers such a service itself, and clearly sees this competition as infringing.

Where the case gets interesting, however, is that GateHouse’s content in this case (from the Rockford Register Star in Rockford Illinois), has its content covered by a Creative Commons “Attribtuion-NonCommercial-NoDerivs” license. The lawsuit covers a bunch of ground, but one interesting inclusion: claiming that the reprints are a contract violation, because they don’t follow the Creative Commons license on the content.

For quite some time, Copycense has been banging the drum that setting up Creative Commons as a contractual layer to copyright takes it into dangerous territory that isn’t good for copyright law itself or overall public policy. There haven’t been too many cases that have tested this point, but it sounds like the GateHouse Media one has the potential to raise certain questions (who knows if we’ll actually get answers) about how copyright and contracts relate to each other — especially within the realm of Creative Commons.

This has been one of my concerns with Creative Commons. Many folks who support Creative Commons licenses are justifiably worried about what happens in cases like the one above concerning promo CDs where the First Sale doctrine gets written out of copyright law via contract. Yet, at the same time, the whole basis of many Creative Commons licenses is based on this same ability to bring contract law into copyright. As much as I like the concept of Creative Commons, this still leaves me worried. The lawsuit itself may not end up challenging this point, but sooner or later, someone’s going to do so, and people who think they’re on one side of the argument may quickly find themselves on the flip side.

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Companies: gatehouse media

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Comments on “Lawsuit Over Use Of Creative Commons Content Raises Contract vs. Copyright Issue”

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30 Comments
Nick Coghlan (profile) says:

Re: Re:

The AC is right. If you *don’t* accept the CC license, then you fall back to normal “all rights reserved” copyright law. So the complaint in the lawsuit is wrong – there is no contractual violation here, it’s a straight-up copyright case.

Since the CC license in this case includes the “noncommercial” restriction, then the company making the plaques (apparently a commercial endeavour) presumably isn’t relying on that license to do what they’re doing. If they are, then the CC license terms will need to be detailed in the complaint in order to establish that the defendant is not a valid licensee (as they aren’t meeting the terms).

It’s similar to the way SCO ran afoul of the GPL when they tried to claim it was invalid in their sundry court cases. If the GPL wasn’t a valid license, then all of the GPL-covered code that SCO had distributed for years didn’t suddenly become public domain, it reverted to ordinary copyright rules, thus making SCO’s own software distribution a huge copyright violation. They lost either way (either the GPL was valid, so code they had distributed under the GPL could be redistributed by others, or it was invalid, in which case they themselves were guilty of extensive copyright infringement).

average_joe says:

Re: Re:

“Much like software licenses like the GPL, the CC licenses are licenses, not contracts. They give you extra rights above what copyright gives. If you do not want to accept them, you simply do not get the extra rights.

See also Jacobsen v. Katzer”

I did read through that case. Thanks for the cite. Very informative.

A quote:

“The heart of the argument on appeal concerns whether the terms of the Artistic License are conditions of, or merely covenants to, the copyright license. Generally, a “copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement” and can sue only for breach of contract. If, however, a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement. Thus, if the terms of the Artistic License allegedly violated are both covenants and conditions, they may serve to limit the scope of the license and are governed by copyright law. If they are merely covenants, by contrast, they are governed by contract law.” (citations omitted)

So breach of license is actionable under theory of copyright infringement or breach of contract, depending on whether the provision breached is a condition or a covenant of the license. Got it.

I learn something new everyday!

R. Miles (profile) says:

This is quite baffling.

Excuse my ignorance, but how is CC even supported by law? It’s not like these licenses are legal which is why any dispute falls under copyright violation, not CC violation.

I can’t see any legitimate reasoning to believe a CC license is considered a contract. If anything, they’re more requests than than are contracts.

I understand the purpose of CC licenses, but I think people are getting carried away for the purposes of those licenses. Basically, they just define fair use given copyright law can’t do so. My interpretation, anyway.

I suspect the contract clause of the lawsuit will be tossed when a lawyer thinks the same thing regarding CC licenses, so any “resolution” to a situation like this will probably never come.

Nick Coghlan (profile) says:

Re: Re: This is quite baffling.

Why would you think that the GPL is legally valid but CC licenses aren’t? CC works on the exact same legal mechanism as the GPL.

1. The default position in copyright law is “All Rights Reserved”. Your only means for copying a work without permission from the copyright holder is to rely on any fair use defences that are applicable in your jurisdiction (or just hope they never notice and/or never bother to sue you).

2. An open source or CC license grants a publicly available non-discriminatory license to some of those rights, so long as the conditions of the license are met. (This is just like any normal license, except that it happens to be royalty free and you don’t have to contact the copyright owner explicitly before relying on it)

3. If you accept and meet the conditions of the license, you can copy the item freely.

4. If you do not accept or do not meet the conditions of the license, it does not apply to you. Refer to point 1 for your legal situation in relation to copying the item.

The one CC license condition I have an issue with is the “non-commercial” one, as it is so poorly defined (e.g. what happens to a blog author who uses noncommercial CC items and then later signs up for the Google AdWords program?), but the rest of the CC system is a pretty straightforward extension of the open source approach to non-code items.

Lawrence D'Oliveiro says:

Re: Re: This is quite baffling.

senshikaze wrote:

… but, unlike the GPL, I don’t think CC has a leg to stand on in court.

Just like the GPL, CC is a licence, not a contract. And just like the GPL, you can try to knock it down in court if you want. But if the licence is invalid, then you have no licence to use/copy/redistribute the copyrighted material. Which means if you do so, you’re guilty of copyright infringement.

So you see, there is an incentive to treat the licence with respect.

Steve R. (profile) says:

Continued Bastardization - We Own Your Soul

Contract law, like copyright/patent law continues to be increasingly bastardized. Examples, abound with many terms of service contracts such as those of Verizon and Time-Warner Cable where you are obligated to the terms but the companies are not. Today there is NO pretense of contracts as being negotiated or even even possessing reciprocal obligations. Will sanity ever prevail, I don’t know?

Pieter Hulshoff (profile) says:

@by senshikaze, Jul 8th, 2010 @ 6:40am

They have the same leg the GPL has, and it’s one that’s well established by the courts by now. It’s called copyright law. You either adhere to the license or to the limitations of copyright law (which is usually stricter than the CC/GPL licenses) or you’ll be found guilty of copyright infringement in a court of law. At 150k USD per infringement, that’s a lot of leg to stand on, believe you me. 🙂

Anonymous Coward says:

what is funny in all of this is at the end, copyright will win out.

basically, you have two real legal modes for content: copyright or public domain. everything else is just an eula or terms and conditions over the top of one or the other.

this story is perhaps the best indication of why there is a copyright law, because it is the one standard regardless.

romeosidvicious (profile) says:

Re: Re:

You present a false dilemma. There may be two modes for copyright, protected or public domain, but the licenses in question grant rights beyond copyright. If you choose not to accept the license then you have only whatever use copyright grants you so it is not a question of the two states of copyright but rather one of if the creator of a work is allowed to grant rights above and beyond what copyright offers. Copyright remains untouched by the discussion.

I also disagree with Mike that challenges to CC licenses could end up harming what little rights the public has left. As long as the licenses only grant rights and do not restrict rights I think everything will be fine. I don’t see the courts allowing a license to remove rights and they have not ruled that way yet. The same dangers to the public rights granted by copyright exist in any challenge to a EULA, the GPL, or any other license that relies on copyright as its base. I don’t think the treat Mike sees exists and I think it’s pretty much crying wolf to demonize CC licenses when the EULAs are likely a much larger threat.

If you think there is a threat then the GPL is likely a much larger threat than CC licenses due to the complexity. CC licenses only grant rights and take nothing away and if you don’t agree with them you are limited to fair use. A CC license, in essence, gives the end user of the content a defense in court and the owner of the content more control of their work while allowing them to allow other to make use of their work. Since copyright is not like trademark the only other real option is selective enforcement of copyright as it does not cause you to lose your copyright. I would much rather see CC licenses used to spell out an end users rights and have those rights granted to all end users, or all non-commercial end users in some cases, than have copyright holders never say what they will allow and have the public find out only by who they sue for what.

It’s no often I disagree with Mike on copyright issues but here I do. I do not believe that CC licenses are a threat and I actually believe this lawsuit is a good thing as the producer of the content has allowed use of their work that basic copyright would not and their goodwill has been taken advantage of by the defendant. Licenses are contract law and always will be and enforcing them has to be done through contract law (IANAL) as far as I know. The end user of the content in question made use of the content outside of the stated allowed uses. I would have preferred to see this handled through a series of exchanges where the end user admitted they screwed up and stopped but that didn’t happen so the next recourse is a lawsuit. I am rooting for the plaintiff in this case. If they win we have court decisions that say (at least at the time of this posting):

1. You can’t remove rights through a license
2. You can grant extra rights through a license

And with those two decisions out in the wild I think the world of copyright will be a better place.

I won’t get into positing on the implications for a lot of licenses such as the GPL if it was to be found that you couldn’t grant extra rights through a license. If you are worried about CC licenses then you should be just as worried about challenges to the GPL.

Hephaestus (profile) says:

Re: Re:

“you have two real legal modes for content: copyright or public domain. everything else is just an eula or terms and conditions over the top of one or the other.”

The problem with that view is that you are restricted to only contractually allowing terms and conditions on the level of copyright or public domain. You cant screw with first sale, or assign or transfer rights.

Steve R. (profile) says:

Re: Surely You Jest

Anonymous wrote: “this story is perhaps the best indication of why there is a copyright law, because it is the one standard regardless.” (emphasis added).

Copyright is NOT one standard it is a moving “standard” that is becoming increasingly whimsical in interpretation and continuously ever more onerous to the public.

Crosbie Fitch (profile) says:

Licenses restore liberty. Contracts exchange property.

Licenses restore liberty.

Liberty is inalienable and can only be suspended (unethically) by legislative acts such as copyright and patent.

Because liberty is inalienable an individual cannot sign it away in a contract.

You will also find clauses in copyright legislation that jealously reserves its power (to exclude others from producing copies or performing works), i.e. NOTHING else, not even contract can suspend an individual’s liberty to produce a copy of a published work.

However, because copyright does suspend an individual’s liberty concerning some aspects of cultural works, people get the idea that such liberty is alienable and can be contracted away.

Licenses are not contracts. They are conditional restorations of the liberty suspended by copyright, e.g. “You are free to copy this work after 2011”. Licenses therefore do not necessarily require agreement. However, licenses could be provided as part of a contract, e.g. “If you pay me $5 I will give you a license that allows you to publicly perform this work until 2011”.

Contracts exchange that which can be exchanged, i.e. that which is alienable such as property, or unethically, those transferable privileges such as copyright (exchanging the public’s inalienable liberty).

All this is academic. If the couch potato content consumer doesn’t notice their liberty being alienated from them by copyright then you might as well let it be alienated from them by contract, even an adhesive contract (if you buy this product you surrender your liberty to give it a negative review).

BC (profile) says:

Re: Licenses restore liberty. Contracts exchange property.

Licenses restore liberty?

Obviously you have not read the EULA terms on commercial, proprietary software. In that case, the license attempts to impose terms that are more restrictive than copyright, such as “you may not reverse-engineer” or “if this license is terminated you must return all copies to us.”

Of course, you really mean “OPEN SOURCE Licenses restore liberty”

A license is just a specific type of contract. There is nothing other than the cost to prevent you and your lawyers from negotiating an alternative license structure with a software vendor such as Microsoft. Shrinkwrap/EULA/CC licenses are just standardized boilerplate contracts designed to cover the widest possible range of use contracts for copyrighted material.

Crosbie Fitch (profile) says:

Re: Re: Licenses restore liberty. Contracts exchange property.

No, I really mean licenses restore liberty (suspended by copyright).

They can do nothing else. Licenses are not micro-legislatures able to bind passers-by to unjust laws of their own choosing.

The possessor of a copyright protected work has a choice:
a) enjoy their own liberty restored back to them by the license (subject to its conditions, e.g. no reverse engineering), OR
b) enjoy as much of their own liberty as remains to them by (unlicensed) copyright (which doesn’t prohibit reverse engineering).
c) ignore the 18th century privilege of copyright as an injustice and enjoy their own liberty underogated, especially their natural right to make copies and derivatives.

I think you’ll find the last option is becoming ever more popular.

A license is NOT a type of contract.

Bruce Partinton says:

Note that the “non-commercial” license part of CC really means “no unauthorized commercial use” and explicitly suggests would-be commercial licensees to contact the creator. (Or so it was when I signed up with Archive.org.)

Maybe the idea is this would presumably lead to a negotiated contract — I certainly wouldn’t base a business on someone else’s work without minimizing my legal exposure to them popping up and suing for my profits + damages — that could be enforced in court in parallel to copyright, not in opposition.

The real issue is likely to be exclusive licensing — could someone release music, say, under a CC-NC license, then negotiate an exclusive license with a commercial third party, and subsequently revoke the CC license for all others?

Crosbie Fitch (profile) says:

Re: NC

NC is more an ill thought out aspiration for the jealous, e.g. “If you make any money out of this work I’ll sue unless you come to a profit-sharing agreement with me”.

Unfortunately it doesn’t matter whether your commercial use is permitted by copyright or not, NC simply warns you of the publisher’s antagonistic mentality toward unauthorised commercial use. It doesn’t actually prevent you being sued.

For example, you can make a copy of an NC work and give it to your brother, e.g. a T-shirt transfer of a CC-NC Flickr photo. No money has changed hands so this isn’t commercial. However, there’s nothing in copyright that prohibits your brother from selling that transfer for $10 (or T-shirt for $50 – he hasn’t made a copy, just attached the copy he’s been given to a fabric backing).

Even though this commercial use is permitted by copyright, the NC clause means you’ll be hearing from the copyright holder’s lawyers. Well, you would if they could actually afford to hire any, which in 99.99% of cases they can’t.

Unlike the GPL, which is principled on restoring the freedom of the public, Creative Commons is principled (if at all) on an assumption that the author should have a right to suspend or restore the public’s liberty as they see fit. But that modulation (of copyright) is impotent if the copyright holder is also impotent to enforce any infringements. Creative commons is thus not much more than “If I could afford to sue you for infringement, I would only sue you if you did X”. And that effectively translates to “If you want to stay my friend please don’t do X”.

As for revokability, CC licenses are perpetual (except where the jurisdiction limits otherwise).

Karl (profile) says:

CC "vs." Copyright

I think some of y’all are missing the point.

A Creative Commons license is a form of copyright. There is no “CC vs. Copyright.” CC doesn’t “give you rights that copyright doesn’t,” it is just another (usually less restrictive) copyright license.

For example, using a CC-BY-NC license in a commercial work is no different than using any other copyrighted material in a commercial work. If you do it without permission, you’re infringing. Similarly, statutory rates apply – you can pay songwriters statutory rates to use their CC-BY-NC songs in your commercial. And if that use is Fair Use, then it’s exempt, CC-BY-NC or not.

See, for example, their Response to ASCAP’s deceptive claims:

Creative Commons licenses are copyright licenses – plain and simple. Period.

That’s why I don’t understand this statement:

the whole basis of many Creative Commons licenses is based on this same ability to bring contract law into copyright.

Matthew Ricketts says:

CC, GPL, etc.

The whole concept of these things is to act like responsible, trusting, open, aware, elevated human beings – those who use these licenses 1)want to share their ideas freely 2)want to trust others to respect their desires and keep their name associated with all original stuff, however the author/creator specifies, and 3)take the unbearable aspects of commercialism, legal fees and lawyers and money-grubbing out of the flow of art, music, and information.

You shouldn’t have to have money to read quality, listen to quality, or whatever – but you should be evolved enough to respect that it’s not yours to do with what you choose.

AttorneySteve (profile) says:

Let us not forget contract law 101....

In order for there to be a binding enforceable contract there must be “bargained for” legal exchange/detriment. For example, you mow my lawn and I pay you 50 bucks. Its called “consideration” and this is generally needed to have a legally enforceable contract. Here, the person using the creative commons “license” did not bargain for anything, they simply used the content within the parameters allowed by the licensor. It seems clear to me, under the typical CC circumstances, you have a license to use content, the breach of which is copyright infringement and not a contract (“benefit of the bargain” being the typical remedy ion contract law). I don’t see any bargaining/exchange/consideration. However, I would look closely to the terms of use and any statements made by the author to see if there is any type of quid pro quo offer being made. This is not legal advice only my general two cents.

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