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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Filed Under: contract, copyright, creative commons
Companies: gatehouse media


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  1. icon
    Crosbie Fitch (profile), 8 Jul 2010 @ 12:29pm

    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).

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