Sometimes It's Better To Just Let People Copy Your Content Than Deal With Licensing

from the just-take-it dept

For the last few months, we've been going back and forth with a well-known major mainstream news organization about syndicating some Techdirt content. There's no monetary exchange here. They just want to republish some of our content. I'm totally cool with it, as we're perfectly happy to get more people reading what we have to say, and as we've said repeatedly, we've declared everything we do here to be in the public domain so people can do what they want with it. Yet, because of the way things work these days, this company still requires a licensing agreement, and that's meant months and months of back and forth delays as lawyers have to look over stuff. Admittedly, some of this is my fault for being slow to review things, but that's part of the hassle. I'd be perfectly happy if this publication just decided to start reposting posts here with a nice linkback without even having to go through the legal discussion. In fact, the more we've gone back and forth over the agreement, the more I realize that this license agreement only serves to make things worse for me -- because the lawyers want me to "indemnify" and promise that anything I write won't get them in legal hot water. In other words, all this license really does is create increased liability for me.

I'm almost wondering if a better strategy isn't to just follow the strategy of the site Universe Today, which was sent in (months ago, actually) by clemahieu, who put up a post telling major media properties to "please 'steal' our content":
I’m not sure if you've noticed, but Universe Today articles are showing up on other websites, including our good friends over at Discovery News, Physorg, and even the Christian Science Monitor. I've had a few people emailing me, warning me that people are stealing our content.

They're not stealing, I'm encouraging them to steal. Here's the deal, and I've actually said this for years and years: feel free to use Universe Today articles for anything you like. You don't need to ask permission. If you find an article that you like, and you'd like to put it on your website, be our guest. Free. You can put it into a website, record it as a podcast, include it your Astronomy Club's newsletter, etc.

All we ask is that you attribute Universe Today as the original source of the article, and that you give credit to the original writer. If it's on the web, please provide a link back to the original article on Universe Today. I think that's fair. Free content for your website in exchange for a link back.

We've had a few other big news organizations approach us about similar deals to the one I mentioned above, and I'm pretty tempted to just point them to this post going forward, and tell them to use whatever they want (which they could already just do) rather than have to go through the whole "license agreement" process again.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    The eejit (profile), Mar 28th, 2011 @ 3:36am

    Just, don't forget to remind them that their actions are their own, and so are the consequences. :D

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    Nom du Clavier (profile), Mar 28th, 2011 @ 4:07am

    Strange logic

    They're choosing what to republish and you have to indemnify them? Only to a lawyer would that make sense. Why don't they just go ahead and skip articles they think will cause them problems.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    charliebrown (profile), Mar 28th, 2011 @ 4:30am

    The publisher wishes to advise that the opinions posted in this comment may not necessarily reflect those of the publisher. They might, but not necessarily.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    The eejit (profile), Mar 28th, 2011 @ 4:38am

    Re:

    The publisher also wishes to advise the reader that their thoughts are no longer their own, due to the secret echo-chamber implanted in the hyperlink text.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    Hiiragi Kagami (profile), Mar 28th, 2011 @ 4:43am

    Even if "Take it for free!" was written in bold, red letters...

    ...copyright says "get a license to cover your ass".

    This is a reason I dislike Creative Commons. Not because it's trying to do something good, but it's doing it at the expense to believe copyright can't touch it.

    That's simply not true. Even with "take it" messages all over the web, there is no guarantee, unless it's in writing, the information *is* free.

    While I get the licensing issues are a pain in the ass, they're required by companies who do want to refrain from finding themselves liable over commentary stated by others.

    It's a pretty pathetic situation, but until copyright law is repealed, perhaps it's best to consider the other side and put some speed on those negotiations. If this is problematic, perhaps just say "no".

    Please stop pretending this isn't an issue for them, because it is.

    It strikes me rather perplexing those who find copyright a problem be the least to understand its ramifications on trying to give their own content away.

    Would you really accept "word of mouth" to run your business?

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 4:49am

    but until copyright law is repealed

    in other words, never.

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    Capitalist Lion Tamer (profile), Mar 28th, 2011 @ 5:02am

    Re: Even if "Take it for free!" was written in bold, red letters...

    "It strikes me rather perplexing those who find copyright a problem be the least to understand its ramifications on trying to give their own content away.

    Would you really accept "word of mouth" to run your business?
    "

    Like it or not, word of mouth runs many businesses. That's why some have great reputations and loyal customers (say Apple or Nordstroms) and some have lousy reputations (Best Buy, in particular their Geek Squad, and various cable companies).

    Word of mouth is even more important now, considering how quickly this information can be disseminated. If you're constantly hassling people about using this or that thing without permission, you'll find that your reputation heads directly for the toilet incredibly fast.

    Why not preempt all the hassle by letting them know that they can borrow and reprint as long as they credit the source and link back? That's asking hardly anything and builds you a ton of goodwill, whereas DMCA takedown notices and the like tend to alienate those who could help you.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Jordan Hatcher, Mar 28th, 2011 @ 5:02am

    Public domain dedications require legal documents

    If you really want to place it in the public domain, you should use a legal tool to do so. It's not clear in every country that you can indeed dedicate work to the public domain, so a joint PD dedication and license is required.

    You can use Creative Commons CC0 to do so, available through their license chooser and directly at http://creativecommons.org/publicdomain/zero/1.0/

    For databases, you can use the PDDL by Open Data Commons http://www.opendatacommons.org/licenses/pddl/


    Putting an IP notice on the footer of your page explaining your license terms would help cut down on these requests.

    Thanks!

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 5:26am

    Re: Public domain dedications require legal documents

    Problem solved.

     

    reply to this | link to this | view in thread ]

  10.  
    icon
    douglascarnall (profile), Mar 28th, 2011 @ 5:39am

    isn't this just the situation creative commons was designed to avoid?

    I'm really interested to know why you don't just use some variant of the creative commons licensing Mike.

    Can you expound further?

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 5:43am

    Re:

    Many other bad laws have been repealed in the past. Who says copyright will not be one of them?

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 5:46am

    Re: Re:

    Have you seen any indication from Congress that they're going to weaken copyright laws anytime soon? I haven't.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 6:04am

    Re: Re:

    Except copyright isn't a bad law(s).

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    eclecticdave (profile), Mar 28th, 2011 @ 6:04am

    Re: Even if "Take it for free!" was written in bold, red letters...

    This is a reason I dislike Creative Commons. Not because it's trying to do something good, but it's doing it at the expense to believe copyright can't touch it.

    I'm not sure what you mean by this - Creative Commons licenses are perfectly valid copyright licenses.

    I agree with your general principle - if you want to give away your content, just putting "please take it" in a post somewhere doesn't really cut it - you really need a license linked to from every page so everyone knows where they stand - even if the license itself is no more complex than the WTFPL.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    brent britton, Mar 28th, 2011 @ 6:11am

    ok to steal, but... = license

    When you say:

    "steal my content, but be sure to drop a linkback and give me credit as the source"

    you are legally saying:

    "I hereby grant you a license to reprint this content provided you drop a linkback and give me credit as the sourse, and if you do not do those things I just mentioned in the proviso I will be empowered to sue you for copyright infringement and breach of contract."

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Gordon, Mar 28th, 2011 @ 6:11am

    My question Mike.....

    is why are you even bothering with these people if they want you to watch what you print so THEY don't get in trouble? If they want to use your stuff go right ahead, but they need to look at what you've written before doing so. How is that at all your responsibility?
    You write for your site, not theirs. You have to deal with what you write getting you into hot water with someone. You shouldn't then have to think about weather it gets someone else into hot water.
    It's backwards but the same as this "law" that Microsoft want's to get passed making businesses here in the states responsible for something another company overseas does.

    Christ it's early and I'm not fully awake yet.....

    My 2 cents
    Gordon

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    Dark Helmet (profile), Mar 28th, 2011 @ 6:28am

    Re: Re: Even if "Take it for free!" was written in bold, red letters...

    "I agree with your general principle - if you want to give away your content, just putting "please take it" in a post somewhere doesn't really cut it"

    This is the problem with an automatic opt in copyright system. You've got content, people that want the content, and other people that want to disseminate that content to people. With our system, you have to automatically assume you can't have the content. Why is that the default?

    Wouldn't it be easier to require registration for copyright? A registration with explicit rules about how you mark the content in different mediums? Say, a blog that wishes to enjoy copyright must display the mark on their homepage banner? That way, if (insert major media publication here) wants to use the content, they just check for the mark and if it's not there they're good to go. Instead we have a system in which everyone is so afraid to act that they don't.

    I'm pretty sure that isn't the point of copyright....

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    Greevar (profile), Mar 28th, 2011 @ 6:30am

    Re: Re: Re:

    It's a bad law if nobody but those that have a vested interest in its perpetuation obeys it. It's a bad law. It's restrictive and riddled with abuse. It's also completely impotent against those that violate it. What more do you need to call it a bad law? Does it need to kill babies?

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 6:33am

    Re: Re: Re:

    Congress is not where the pressure is coming from, you are looking at the wrong place.

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    Greg G (profile), Mar 28th, 2011 @ 6:38am

    Whatever happened...

    to a simple disclaimer?

    The views reflected in the following article do not necessarily reflect those of this [insert media type here].

    Lawyers are the only ones that freak out when you say "Sure, you can repost my article, free.. no charge."

    And in some cases it's always best to go by the philosophy of "if you can't be 'em, join 'em. Then when they aren't looking, beat 'em."

     

    reply to this | link to this | view in thread ]

  21.  
    icon
    Josh in CharlotteNC (profile), Mar 28th, 2011 @ 6:44am

    Re: Re: Re: Re:

    Does it need to kill babies?

    No, I think patent law has that one covered fairly well.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 6:50am

    Re: Re: Re: Re:

    Considering that it would be up to Congress to repeal the laws, I'm looking in exactly the right place. Who do you think is going to repeal the laws?

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    PRMan, Mar 28th, 2011 @ 6:53am

    Indemnity clause?

    I would be "too busy" after that request for sure. That's ridiculous.

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    eclecticdave (profile), Mar 28th, 2011 @ 6:54am

    Re: Re: Re: Even if "Take it for free!" was written in bold, red letters...

    Absolutely, my comment was intended to point out what you need to do under the current system and should in no way be regarded as conferring my approval of said system ;-)

    In fact I'm not sure there is any need for registration as such - how about if there were just some rules that say if you put a (c) on the front page/album cover/whatever then you've claimed copyright, otherwise it's PD?

    OTOH an unenforceable law is no better than no law, so what say we just scrap the whole thing ;-)

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    Hiiragi Kagami (profile), Mar 28th, 2011 @ 6:57am

    Re: Re: Even if "Take it for free!" was written in bold, red letters...

    Creative Commons licenses are perfectly valid copyright licenses.
    No, they're not. Creative Commons is a non-profit and has no ties to federal jurisdiction to circumvent copyright law.

    CC is just a glorified "Go ahead and take it" system. Until CC is embedded into copyright laws, none of it is "free for the taking".

    See, even you're confused by it. That's pretty telling right there.

    @Lion:
    I've not seen a business run word of mouth in a long time. Saying "Sure, we'll have that for you by Friday." means nothing until the Friday arrives and the item is in hand.

    Guess what happens when it's not.

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    Chargone (profile), Mar 28th, 2011 @ 7:00am

    Re: Re: Re: Even if "Take it for free!" was written in bold, red letters...

    actually, i suspect it Is. at least in part.
    note that is != was, but the big corporations with their lobbiests basically control the is on this matter.

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    Marcus Carab (profile), Mar 28th, 2011 @ 7:04am

    Re: Public domain dedications require legal documents

    I agree that the CC0 license helps, but it seems like a bit of a problem that it took a private third party to create a legal mechanism for public domain dedication in the U.S. - and that said mechanism requires a "Public License Fallback" clause since it's not entirely clear that a true public domain dedication is even possible under current copyright law.

    Certainly has changed a lot since the days of opt-in, 14-year copyright. Too much, some might say...

     

    reply to this | link to this | view in thread ]

  28.  
    icon
    Dark Helmet (profile), Mar 28th, 2011 @ 7:08am

    Re: Re: Re: Re: Even if "Take it for free!" was written in bold, red letters...

    Hmm, I'm not a copyright abolitionist, so just scrapping the whole thing w/o a plan for a rewritten law isn't something I'd be fully behind. I think copyright can still serve a purpose, albeit in an extremely limited fashion....

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    Chargone (profile), Mar 28th, 2011 @ 7:19am

    Re: Re: Re: Re: Re:

    ... i hit the funny button then went 'hold on... patent law is one of the major factors in the shinanigans surrounding the big pharmaceutical companies... damnit, it's not funny when it's True!' :S

     

    reply to this | link to this | view in thread ]

  30.  
    icon
    chris (profile), Mar 28th, 2011 @ 7:31am

    Re: Re: Re: Even if "Take it for free!" was written in bold, red letters...

    I've not seen a business run word of mouth in a long time. Saying "Sure, we'll have that for you by Friday." means nothing until the Friday arrives and the item is in hand.

    Guess what happens when it's not.


    i think you are confusing "word of mouth" with "giving your word".

    "word of mouth" is what other people say about you to other people. giving someone your word is a promise to do what you said you would do.

     

    reply to this | link to this | view in thread ]

  31.  
    icon
    Sean T Henry (profile), Mar 28th, 2011 @ 7:32am

    Re:

    "the lawyers want me to "indemnify" and promise that anything I write won't get them in legal hot water. In other words, all this license really does is create increased liability for me."

    There is a quick fix to this problem agree to it and place in the agreement that Techdirt will not post anything that will get them in trouble as long as they review the post before copying in an actively decide on what articles to use.

    That way you push the burden back to them, the one who is copying it.

     

    reply to this | link to this | view in thread ]

  32.  
    icon
    Mike Linksvayer (profile), Mar 28th, 2011 @ 7:51am

    Re: Re: Re: Even if "Take it for free!" was written in bold, red letters...

    Creative Commons licenses are perfectly valid copyright licenses.
    No, they're not. Creative Commons is a non-profit and has no ties to federal jurisdiction to circumvent copyright law.

    CC licenses don't "circumvent" copyright. They are copyright licenses, grants of permission from the copyright holder to the public. Public copyright licenses have been upheld many times around the world. http://wiki.creativecommons.org/Case_Law has some relevant links.

    https://creativecommons.org/weblog/entry/17422 addresses some previous Techdirt posts on CC.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 7:52am

    Re: Re: Re: Re:

    I'm not quite sure why yo want to pretend no one obeys copyright law. The vast majority of people comply with copyright law and have no problem with it.

    On the internet, I see more people understanding fair use and netiquette than ever before.

    As far as breaking copyright law with regard to IP, people only do that because they are currently availed to it, and/or the risk of being caught is low.

    Since the beginning of time laws have always been slower to catch up than technology.

    That certainly doesn't mean copyright is going to disappear. That's some seriously delusional thinking there...

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 8:05am

    Copyright is one one of many laws over which corporate lawyers obsess. This, coupled with the fact that they work with boilerplate and the fact that they need to demonstrate to their corporate clients that they are "really, really" looking out for them, virtually ensures that what should and could be done in a fraction of one hour of attorney time is expanded to days, weeks, or even months.

    For example, "but we might be sued for defamation", "we might be sued for legal rights presently unknown and want to make sure we are protected from the unknown", "we are a large company with deep pockets, so we want to ensure that are deep pockets are zipped up tightly", "we need to make sure that we do really have rights that are irrevocable", etc., etc., at infinitum.

    Simply posting the original content with a "have at it notice" will be met with the rejoinder "but there has to be an exchange of consideration, because without it we are getting nothing more than an at-will license that can be withdrawn at any time". Again, etc., etc., etc.

    And, yes, you are absolutely correct that "Stepford Wives" lawyers working solely from boilerplate do every in their power to make sure they receive everything free and clear of any legal liability by making sure that all liability is shifted to you. Actually, it is all quite pathetic, but what do you expect from people obsessed with boilerplate and almost certainly divorced from any understanding of what the actual business deal really entails. You could sell a company a rock taken from a creek bed, and the company's internal or outside counsel would probably insist that it is free from any and all trademark, patent, copyright, unfair competition, defamation, product liability, etc. claims" that come to their fertile minds.

    Frankly, at some point in time a light bulb should go on that a formal, signed contract is to much of a hassle and drop the matter.

    Whenever faced with boilerplate contracts such as you talk about, I have always taken perverse pleasure in using a red pen to "X" out virtually all of the boilerplate and say "here it is...take it or leave it". While there have been a few exceptions, they usually take it. Of course, it helps when one on the business side of the issue talks with his/her counterpart at the other company and lets him/her know what the heck is going on. This generally results in the business person telling the lawyers to knock it off, quite stalling, and approve the darn thing...NOW!

    I happen to upload photographs to a royalty-free website that makes my photos available for use by others. Of course, the site has terms of use that place limits on what downloaders can do with photos, limits that I view as just plain silly. Hence, I have unilaterally modified the terms associated with my photos to render the terms of use irrelevant. In my case I have provided the following terms:

    "Please feel free to modify and/or use these uploads for any purpose whatsoever (commercial or personal, for-profit or not-for-profit, for print, for web, for "print on demand", for web templates for sale or distribution, for "whatever", etc.) You do not need to contact me before or after using an image, though a note is always appreciated if you have the opportunity to do so. Similarly, attribution is nice, but not necessary."

    Is the language legally perfect? Not really, but it seems to do the trick. Users like it so much that they quit worrying about all the boilerplate BS that would appear if it was a formal, official looking contract. Even large, nationat retailers have felt comfortable enough that they have used my photos in national campaign ads. Why, because they felt comfortable enough with the statement that they did not even bother to send it out to lawyers to review.

    Bottom line, if you make it simple enough lawyers are never even consulted. Keep them out and things get done. Bring them in and you soon discover it is not work the effort.

    And to think, all this is coming from someone who is continually called here an "IP maximist", which has never been the case and never will be.

     

    reply to this | link to this | view in thread ]

  35.  
    icon
    Wayne Borean (profile), Mar 28th, 2011 @ 8:11am

    Creative Commons 2.5 Attribution License

    You can use my stuff any way you want, just as long as you give me attribution. So far I've been mirrored, and translated into Russian and Spanish. I like being told about it of course, because I like knowing when people use stuff, but that's just ego boost on my end. It's not necessary.

    Wayne

     

    reply to this | link to this | view in thread ]

  36.  
    icon
    The eejit (profile), Mar 28th, 2011 @ 8:25am

    Re: Re: Re: Re: Re: Re:

    No, it's actually funnier because Monty Python couldn't do a damn thing with copyright law, it's insane enough as it is.

     

    reply to this | link to this | view in thread ]

  37.  
    icon
    duffmeister (profile), Mar 28th, 2011 @ 8:26am

    Re: Public domain dedications require legal documents

    This is not public domain at all...... just a free license

     

    reply to this | link to this | view in thread ]

  38.  
    icon
    Nina Paley (profile), Mar 28th, 2011 @ 8:27am

    I can relate

    The phalanxes of lawyers in gatekeeper systems have really hindered the Free distribution of Sita Sings the Blues, too. It's like "Free" is some pathogen lawyers can't digest. That, in fact, is the ONLY drawback an artists face in freeing their work: other parties' lawyers not knowing how to deal with it.

     

    reply to this | link to this | view in thread ]

  39.  
    icon
    The eejit (profile), Mar 28th, 2011 @ 8:33am

    Re:

    Would you be so kind as to register adn rpovide a link? I'd be very interested to find out about this.

     

    reply to this | link to this | view in thread ]

  40.  
    icon
    Chris Rhodes (profile), Mar 28th, 2011 @ 8:34am

    Re: ok to steal, but... = license

    Agreed, I had this thought as well. You can't truly both offer up your content free of restrictions and then want to place restrictions on it.

     

    reply to this | link to this | view in thread ]

  41.  
    icon
    Hiiragi Kagami (profile), Mar 28th, 2011 @ 8:53am

    Re: Re: Re: Re: Even if "Take it for free!" was written in bold, red letters...

    Heh. I see. You're right. My mistake for the blunder.

     

    reply to this | link to this | view in thread ]

  42.  
    icon
    Fraser Cain (profile), Mar 28th, 2011 @ 8:57am

    My position on this

    I'm glad you like my content policy. I've had many people ask me why I don't just go ahead and use a CC license. Here's why. I want people who know me, and my site to copy my content for their own sites. I don't want people just searching the internet with a driftnet, looking for free content they can use to make their scraped content mashups.

    So if you're a Universe Today reader, and you'd like to use my content for your astronomy club newsletter? Awesome, be my guest. You're a reader, you know my policy, we're cool.

    But if you've got huge scraper bots running from hacked servers in Russia, seeking out creative content articles you can scoop up and convert into some kind of blackhat SEO scheme, I'd rather you didn't notice me.

     

    reply to this | link to this | view in thread ]

  43.  
    icon
    Hiiragi Kagami (profile), Mar 28th, 2011 @ 9:00am

    Re: Re: Re: Re: Even if "Take it for free!" was written in bold, red letters...

    Your links just proved my point, Mr. Linksvayer.

    Until a court of law proves infringement did not occur can the licenses be accepted.

    Therefore, you can defend CC all you want. However, it's still doesn't remove the protection needed just in case, one day, an artist wakes up and decides they're having a bad day.

    No contract. No content. No exceptions.

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 9:04am

    The issue seems to have little to do with the ability to copy TD content and more to do with the potential risks of doing so. If they pick up an article and you've gotten some facts wrong or inadvertently libeled someone, they don't want to get caught up in a lawsuit. If they do, they want you to be responsible for the consequences.

    Your content is not free; it carries risk to republish. They find these risks unacceptable. You can indemnify them and reduce the risk in exchange for some more publicity, you can find somebody who will accept the risks as-is, or you can stay here.

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 9:43am

    If Mike's works are in the public domain the moment they're published, what gives Mike the right to license the content to anyone else? It's not his to license, right? And if Mike has in fact licensed the works, doesn't that mean they're not really in the public domain? Inquiring minds want to know. It seems to me that either he licenses the work, or the work is in the public domain. I don't see how it can be both.

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    Michael, Mar 28th, 2011 @ 10:01am

    Re:

    That's the problem.

    In the past, Mike has attempted to put his work in the public domain. He has stated repeatedly that anyone can use his content without asking. He has also said you can use it without attribution - he wouldn't like it, but giving the content away means people may do things he doesn't like.

    So, despite him saying all of this in writing - repeatedly, when a company comes along and want to use the content, their lawyers say THEY HAVE TO LICENSE IT.

    One of the problems with copyright law as it is:
    You cannot create a work and put it into the public domain even if you want to.

    Isn't that weird? A content creator is not allowed to do what they want with their content when what they want to do is give it away.

     

    reply to this | link to this | view in thread ]

  47.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 10:09am

    Re: Re:

    So are these works by Mike copyrighted and licensed, or are they in the public domain? It can't be both. Or, to look at it another way... either way it's fraud, right?

     

    reply to this | link to this | view in thread ]

  48.  
    icon
    Mike Masnick (profile), Mar 28th, 2011 @ 10:36am

    Re:

    If Mike's works are in the public domain the moment they're published, what gives Mike the right to license the content to anyone else? It's not his to license, right? And if Mike has in fact licensed the works, doesn't that mean they're not really in the public domain? Inquiring minds want to know. It seems to me that either he licenses the work, or the work is in the public domain. I don't see how it can be both.


    It is entirely possible to license works in the public domain. The whole point of this particular "license" as clearly stated in the article, is to go above and beyond what simply reusing the content would allow. The lawyers want to have clear statement that they lack liability. You can still do that even with public domain content.

     

    reply to this | link to this | view in thread ]

  49.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 10:58am

    Re: Re:

    It is entirely possible to license works in the public domain.

    Possible, but it's fraud, no? If it's in the public domain, it's not yours to license. How can you grant rights that you don't have?

    From the Tenth Circuit:
    The significance of the copyright sequence, combined with the principle that no individual may copyright a work in the public domain, is that ordinarily works in the public domain stay there. See Country Kids ′N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1287 (10th Cir.1996) (holding that a doll design could not be copyrighted because it was characterized by “typical paper doll features found in the public domain”); Lipton v. Nature Co., 71 F.3d 464, 470 (2d Cir.1995) (“[F]acts are considered to be in the public domain and therefore not protectable under copyright law....”); Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 48 (5th Cir.1995) (holding that certain flowers could not be copyrighted “because these same flowers already existed in the public domain”); United States v. Hamilton, 583 F.2d 448, 450 (9th Cir.1978) (noting that “a map *1190 which represents a new combination of information already in the public domain lacks any element worthy of copyright protection”); M.M. Bus. Forms Corp. v. Uarco, Inc., 472 F.2d 1137, 1140 (6th Cir.1973) (“Elementary legal words and phrases are in the public domain and no citizen may gain monopoly thereover to the exclusion of their use by other citizens.”); Amsterdam v. Triangle Publ'ns, Inc., 189 F.2d 104, 106 (3d Cir.1951) (“The location of county lines, township lines and municipal lines is information within the public domain, and is not copyrightable.”); Christianson v. West Pub. Co., 149 F.2d 202, 203 (9th Cir.1945) (“The outline map of the United States with state boundaries is in the public domain and is not copyrightable.”) (internal quotation marks omitted); Meade v. United States, 27 Fed.Cl. 367, 372 (1992) (holding that “defendant's LOVE stamp” could not be copyrighted because it “exist[ed] in the public domain”); see also Toro Co. v. R & R Prods. Co., 787 F.2d 1208, 1213 (8th Cir.1986) ( “If the disputed work is similar to a pre-existing protected work or one in the public domain, the second work must contain some variation recognizable as that of the second author.”).
    Golan v. Gonzales, 501 F.3d 1179, 1189-90 (10th Cir. 2007).

    And I know you've read this: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244

    The whole point of this particular "license" as clearly stated in the article, is to go above and beyond what simply reusing the content would allow. The lawyers want to have clear statement that they lack liability. You can still do that even with public domain content.

    Are you actually licensing the content, or are you just making a contract where you indemnify them from liability? It sounded to me like you were doing both. I would be very surprised if in this contract you were not granting them the right to use the content. My point is that if the work is truly public domain, you don't have any rights in it that you could transfer.

     

    reply to this | link to this | view in thread ]

  50.  
    icon
    Mike Masnick (profile), Mar 28th, 2011 @ 11:23am

    Re: Re: Re:

    no individual may copyright a work in the public domain

    I'm not *copyrighting* it.

    Are you actually licensing the content, or are you just making a contract where you indemnify them from liability? It sounded to me like you were doing both. I would be very surprised if in this contract you were not granting them the right to use the content. My point is that if the work is truly public domain, you don't have any rights in it that you could transfer.

    That's what happens when you make assumptions. You get it wrong. No we are not granting a right. We are simply letting them know that they will not have any issues with us if they do republish it -- they wanted that clear -- and then we're debating about the indemnity stuff.

     

    reply to this | link to this | view in thread ]

  51.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 11:37am

    Re: Re: Re: Re:

    I'm not *copyrighting* it.

    If you are granting a license, then you are indicating that you have ownership of the rights being licensed, i.e., the copyrights.

    That's what happens when you make assumptions. You get it wrong.

    You are the one who said "syndicating" and "license agreement." Those terms imply that you are actually licensing the works. Don't blame me for the confusion you started.

    No we are not granting a right. We are simply letting them know that they will not have any issues with us if they do republish it -- they wanted that clear -- and then we're debating about the indemnity stuff.

    You are granting them a right, but just not the right I'm talking about.

     

    reply to this | link to this | view in thread ]

  52.  
    icon
    Rose M. Welch (profile), Mar 28th, 2011 @ 11:39am

    Re: Re: Even if "Take it for free!" was written in bold, red letters...

    Why not preempt all the hassle by letting them know that they can borrow and reprint as long as they credit the source and link back?

    That was the opposite of her point. I've done quite a bit of business design, and I always hesitate before using resources I didn't create from scratch, even if they were free and available for commercial use.

    Why? Because they can always change their minds later, and even if a judge looks at my screengrabs of their 'IT'S FREE' posts, I still a) don't have an actual license in hand and b) we'd still have to hire an attorney and go to court. In other words, there's still too much liability for us, not for the original creator.

    So I spend time recreating what others have already done and wasting my client's money.

     

    reply to this | link to this | view in thread ]

  53.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 12:16pm

    Re: Re: Re: Re:

    I bet it's fun to try and explain to them that the works are in the public domain and you can't license them. I'm sure that blew their minds. ;)

    You got me thinking though. Since copyright is the default, how do you legally put a work into the public domain? Can you really just put up a blanket "everything I post on techdirt is public domain," or do you need to relinquish your rights for each article individually?

    If it really is the least bit difficult to put works into the public domain, I'd have to agree with you that that is stupid. It should be easy-peasy to do.

     

    reply to this | link to this | view in thread ]

  54.  
    icon
    Greevar (profile), Mar 28th, 2011 @ 12:23pm

    Re: Re: Re: Re: Re:

    When did I say it was going to disappear? If what I said, inferred that, then I'm not the delusional one. It is a bad law because it's myopic, impotent, anachronistic, and perpetuating a false dichotomy. Just because technology outpaces the law doesn't detract from the fact that this one is bad.

    I'm astonished that your experience is that most people understand and obey copyright. You must see a very limited cross section of society to make that determination. I've dealt with many people who are very intelligent otherwise, that have no understanding of, and no desire to understand, copyright as it really is.

     

    reply to this | link to this | view in thread ]

  55.  
    icon
    SteelWolf (profile), Mar 28th, 2011 @ 12:52pm

    Re: Re: Re: Re: Re: Even if "Take it for free!" was written in bold, red letters...

    I'm always puzzled when I see people saying this. I have a lot of respect for your opinions and posts here and you seem to have an excellent grasp of how things work and where they're going.

    What precise benefit do you see of copyright that we cannot get without it? The things I see advocated here work just fine without government-granted monopolies, so why need them at all?

     

    reply to this | link to this | view in thread ]

  56.  
    icon
    Jimr (profile), Mar 28th, 2011 @ 1:09pm

    Ask the buy indemnity insurance for you.

    Simply ask them to pay for your indemnity insurance in exchange for letting them re-post your stuff for free.

    Back in the individual Consulting days a client required indemnity insurance and simply billed it to them as an expense for doing business with me - they happy paid with out questions.

     

    reply to this | link to this | view in thread ]

  57.  
    icon
    The eejit (profile), Mar 28th, 2011 @ 3:22pm

    Re: Re: Re: Re: Re:

    No, because, and this may be difficult for you, copyright is automatic int he US.

     

    reply to this | link to this | view in thread ]

  58.  
    icon
    Hephaestus (profile), Mar 28th, 2011 @ 3:49pm

    Mike put the CC BY or CC BY-ND lisc image at the end of each article and be done with it. I would personally use CC BY this way they can use the articles as source material or in whole.

     

    reply to this | link to this | view in thread ]

  59.  
    icon
    Mike Linksvayer (profile), Mar 28th, 2011 @ 5:02pm

    Re: Re: Re: Re: Re: Even if "Take it for free!" was written in bold, red letters...

    In theory. In practice public copyright licenses are accepted constantly, Wikipedia and all open source software being the best known examples. Doubtless there are some parties that require further assurance, but most don't.

     

    reply to this | link to this | view in thread ]

  60.  
    identicon
    Anonymous Coward, Mar 28th, 2011 @ 6:56pm

    Re: Re: Re: Even if "Take it for free!" was written in bold, red letters...

    Creative Commons licenses are perfectly valid copyright licenses.

    No, they're not.


    Why not? At least one highly-regarded copyright lawyer says they are. If you disagree, please provide an opinion from a copyright lawyer stating why it is not a valid license.

    Creative Commons is a non-profit


    ... and that matters because????

    and has no ties to federal jurisdiction to circumvent copyright law


    Sorry - can you say that in english? It sounds like you're trying to claim that because they aren't part of the government, that they can't write a copyright license, but that makes absolutely no sense - so assuming that's what you're claiming, please provide a reference to US law that backs you up, and then explain how ANY corporation can write a valid copyright license with such a law in place.

    CC is just a glorified "Go ahead and take it" system.


    Sure, if by "glorified" you mean "vetted by lawyers".

    Until CC is embedded into copyright laws, none of it is "free for the taking".


    Umm. at this point, I have to ask if you actually know what a license *is* - because none of what you are writing makes any sense. At all.

    It takes *years* for laws to be amended. If copyright law needed to be rewritten every time someone licenses something and didn't use an existing license, nobody would ever be able to license anything - the backlog would be centuries.

    See, even you're confused by it. That's pretty telling right there.


    Actually, that would be you.

     

    reply to this | link to this | view in thread ]

  61.  
    icon
    Jay (profile), Mar 29th, 2011 @ 12:06am

    Re: Re: Re: Re: Re: Even if "Take it for free!" was written in bold, red letters...

    My entire issue with copyright is how it gets in the damned way of anything I want to do as a writer.

    You want to write about vampires? If it's in the modern setting they can't twinkle or Twilight sues.

    If you want to write about orcs, Tolkien will come a calling. The contracts with publishers are about 5 million pages too much with liability and I hate it!

    I'd rather just write a story and call it a day. But we can't do that because of the trudging on toes. >_

     

    reply to this | link to this | view in thread ]

  62.  
    identicon
    athe, Mar 29th, 2011 @ 1:50am

    Re: Re: Re: Re: Re:

    If most people online obey copyright, then why are those businesses who rely on copyright so adamant that piracy is killing them?

     

    reply to this | link to this | view in thread ]

  63.  
    icon
    vivaelamor (profile), Mar 29th, 2011 @ 5:17am

    Re: Re: Re: Re: Re: Re: Even if "Take it for free!" was written in bold, red letters...

    "I'm always puzzled when I see people saying this."

    I often suspect that to be a product of peoples natural incline to search for a middle ground (pardon the not-pun). The legal premise behind copyright in the US and UK is that an artificial economic incentive is a net gain for society, but no burden of proof is acknowledged and no standard is set to determine if copyright fulfils its premise. When people agree with the premise then they may confuse calls to abolish copyright because it is is not fulfilling its premise with calls to abandon the premise itself.

    Personally, I think there are plenty of questions to ask about the premise itself as it seems to be a solution looking for a problem. Generally the way our system works is to have minimal restriction and rely on market economics to meet societies needs. The idea that we should interfere to try and improve the efficiency of the system goes against much of what I understand about economics. The premise behind copyright isn't about ensuring a minimal level of service, or standards, it's about redirecting wealth to increase production.

    The trouble there is a dilemma of whether to deal with copyright or it's premise first. If everyone held the same premise then I would probably argue that should be the subject of discussion. However, most of the people who fervently support copyright do so with a completely different premise along the lines of authors rights (sometimes without admitting it, but most of the time quite openly). When you shift the issue to the premise then you risk those people actually getting the idea of authors rights codified in law (as it already is in some countries and to some extent in treaties). It is obvious that they wield the most influence over law makers, so that is a serious issue.

     

    reply to this | link to this | view in thread ]

  64.  
    icon
    vivaelamor (profile), Mar 29th, 2011 @ 7:05am

    Re: My position on this

    "I don't want people just searching the internet with a driftnet, looking for free content they can use to make their scraped content mashups."

    What I find interesting about your position is it is exactly the same reason many people choose to use CC. I've never thought about CC licences much, but perhaps they could make one that is incompatible with such content scrapers.

     

    reply to this | link to this | view in thread ]

  65.  
    identicon
    Plantation Owner, Apr 3rd, 2011 @ 12:49pm

    Famous Last Words

    That certainly doesn't mean copyright is going to disappear. That's some seriously delusional thinking there...

    The Southern slave plantation system isn't going to disappear. That's some seriously delusional thinking there...

     

    reply to this | link to this | view in thread ]

  66.  
    identicon
    Anonymous Coward, Apr 3rd, 2011 @ 12:54pm

    Re: Re: Public domain dedications require legal documents

    This is not public domain at all...... just a free license

    True.

     

    reply to this | link to this | view in thread ]

  67.  
    identicon
    Anonymous Coward, Apr 3rd, 2011 @ 1:02pm

    Re: Re: Re: Re:

    I'm not *copyrighting* it.

    Then I don't see how you could *license* it.

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This