By Chris Castle reposted from August 2010
Hey Jude by John Lennon and Paul McCartney is licensed under a Creative Commons Attribution-NonCommercial–NoDerivs 3.0 Unported License.
Based on a work at www.musictechpolicy.com.
Permissions beyond the scope of this license may be available at http://www.musictechpolicy.com.
Quotes regarding “the Commons”
“What we [copyfighters] want to tell Hollywood is get over it….They want to break the Internet….We don’t have to change the essential character of the Internet to protect this one tiny industry.”
“All of these people — commoners — are driving a huge, robust and expanding phenomena of global culture. It is no exaggeration to say that we constitute a great emerging superpower.”
David Bollier of the Norman Lear Foundation, On The Commons: The Digital Republic
“Business will overcome its opposition to Creative Commons or perish.”
Joi Ito, Chief Executive Officer, Creative Commons Corporation
Google’s $1.5 million contribution to Creative Commons
Well, well, well. So much for the wonders of utopian narcissism in the garden of radical extremes.
In Part 1 of this piece (“News from the Goolag: Free Culture, Free Beer and Free Money“), I noted that there were some inherent drafting mistakes in licenses from Creative Commons Corporation that we’d get into explaining later. Users may find mistakes in the Creative Commons Corporation license to be unwanted news, or may find it difficult to understand how it could be true that mistakes were made—and are being made—by the much trumpeted Creative Commons Corporation.
I did, too. I actually found it incredible that so many lawyers could spend so much money drafting a contract with such big holes that they knew would be used by millions of people. I also find it difficult to understand why the Corporation has yet to fix the problem, even though some of these mistakes have been pointed out in the literature several times. The fix is easy, admitting you need the fix is what’s hard.
Where is Paragraph 8(f)?
It is important to understand that the mistakes are not concerned with the general idea of a license that modifies existing copyright law. Conceptually, Creative Commons Corporations licenses are old news and are not that different conceptually from hundreds of millions of licenses issued by the Harry Fox Agency—another widely used license that modifies the U.S. Copyright Act.
The mistakes are structural and at least in music, go to the heart of the deal. So it would appear that there are potentially millions of flawed licenses currently in use—probably not by Nine Inch Nails or other big artists who are represented (at least I hope not). The flawed licenses are in use by those who give Creative Commons Corporation its greatest justification—the millions of amateur creators who perhaps unwittingly participate in a variety of commercial activities and create value in the owners of the “hybrid economy” companies that exploit their works.
“Our tunes are all Creative Commons. Someone, is there something to use them?” Tweet by a commoner
Before you think I’m talking about the big categories of rights the license purports to grant—meaning the “sharealike” and other Corporation terms—I’m not concerned with those, at least not in this writing.
Rather, I’m focused on the fundamental rights that are the subject of the Corporation terms—the things that are being shared alike if you will. Meaning if you say I’m granting rights in a song on a sharealike license, you would hope that the sharealike rights actually attach properly to something. Meaning that if you want to grant rights to the song “White Room” you haven’t actually granted a white elephant by mistake.
This is particularly true because the license completely disclaims any representation by the grantor as to what rights are being granted and the consequent disclaimer of any liability. One of the fundamental rights that most recipients of a license, i.e., “licensees”, expect to get is a representation and indemnity that the person granting the rights actually has the rights to grant. Meaning that the person granting the rights promises they have the ability to grant rights and they agree to protect the licensee from harm if it turns out that they don’t. That promise is usually the main thing that ensures honesty in the deal. That’s going to be difficult with the Corporation’s license as it is essentially anonymous unless the person granting the rights volunteers their identity and the license itself absolves (maybe entirely) the grantor from liability.
Who Cares?
I really detest “unscripted” television programming, or what’s commonly called “reality TV”. I think it’s the worst thing that ever happened to television. I don’t deny that it’s popular, but that doesn’t make it good. Flag pole sitting was popular, too. And what’s worse than reality TV? How about “user-generated content”? Again, no doubt that it’s popular, but that doesn’t make it good. And there is probably no one more firmly in the UGC game than the Creative Commons Corporation except maybe Google. People have to have something to search for, right?
The truth is that if anybody in the professional music business actually cares about using Creative Commons deeding or whatever they call it, they are keeping it to themselves. Sure there are a handful of professional artists who use it occasionally but that’s only occasionally for specific titles and these people are represented so any downside is taken into account in the larger context of the artist’s catalog.
So the subject of Creative Commons Corporation as a license just doesn’t come up much with professional music folk.
But people should inquire about it when co-writing and licensing for a few reasons. Professional songwriters probably don’t like it because the Creative Commons Corporation “deed” is so poorly written that it’s almost not workable at all for songwriters and it may require sound recording owners to give away more than they have.
That’s not a shot, it’s a fact. Even if you don’t know anything at all about the law, let me give you two facts and see what you make of it.
Each recording of a song contains two copyrights, want to guess what they are? The sound recording copyright, maybe? Right, that’s the ℗.
What’s the other one? Want to guess? The song, maybe? Right, that’s the ©.
Should You Care?
The Creative Commons Corporation “deed” for “audio” is for which copyright, the song or the sound recording? It’s for the “audio” copyright. Which one is that? Good question. That’s an answer you would think that a lawyer would know, right? And of course, the Corporation will tell you that they are big believers in copyright and that their licenses exist within the copyright law and depend on the copyright law—I would say for effect, not sure if they would go that far.
Unfortunately, I’m just a country lawyer from Texas and I’m not as smart as these city fellers. When I look up the “audio” copyright in the Copyright Act (that’s Circular 92 available from the U.S. Copyright Office for those of you who are reading along), it’s just not there. I find a lot about sound recordings (“phonorecords”) and songs (“non-dramatic musical works”), but I don’t find an “audio” copyright. Neither will you find a “video” copyright for that matter, another of the Corporation’s licenses that have similar problems because of music embodied in the soundtrack of the video. But we’ll just stay focused on audio for now.
The Fundamental Problems
So here’s a few of the more important fundamental problems with the Creative Commons Corporation “deed” from the perspective of someone who shepherds the flock past the tyranny of evil–it makes no sense for people who create sound recordings of songs. Meaning it may not be gibberish, but it’s close to it and misses out the following situations:
1. No Definition of Noncommercial Use: This is the biggest gaping hole in the Corporation’s license. For purposes of this writing, I reviewed the Corporation’s “Attribution, Noncommercial, No Derivatives” license. While the thrust of the “sharing economy” is supposedly “noncommercial”, this critical and material term is not defined in the “lawyer readable” version of “noncommercial” license. Paragraph 3 is the basic grant of rights:
“License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below:
a. to Reproduce the Work, to incorporate the Work into one or more Collections, and to Reproduce the Work as incorporated in the Collections; and,
b. to Distribute and Publicly Perform the Work including as incorporated in Collections.
The above rights may be exercised in all media and formats whether now known or hereafter devised.
The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats, but otherwise you have no rights to make Adaptations. Subject to 8(f), all rights not expressly granted by Licensor are hereby reserved, including but not limited to the rights set forth in Section 4(d).”
So let’s look at paragraphs 8(f) and 4(d). 8(f) is easy.
It’s not there.
I wonder what it said? Maybe someone in the White House knows?
Paragraph 4(d) is there (although it’s actually “4.d”). Whew, good one! Paragraph 4.d isn’t much help (it essentially concerns royalties from waivable and non-waivable statutory or blanket licenses) and refers back to paragraph 4b which states: “ You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.”
I would suggest to you that this paragraph is a good example of what Lessig calls the “hybrid economy”—that is you can have commercial gain from activities by the company that uses the licensed work, but you can’t have any commercial gain from the licensed work itself. So the distinction is the difference between the sale of a company or its stock with a valuation that is based upon the works made available under the Corporation’s license (the “company level”), and a sale of a particular work subject to a license (the “work level”).
Meaning, if you sell Flickr (still the largest user of Creative Commons works with over 1/3 of works under the Corporation’s license) for $35 million, you can argue—although I think it’s a weak argument—that you haven’t violated any of the Corporation’s licenses because you haven’t sold any particular work. You have gains at the company level, but not at the work level.
If you sell advertising on Flickr you also haven’t violated the Corporation’s license because…not sure. An even weaker argument for commercial uses at the company level but not at the work level.
This is like when a record company is sold for billions but none of the artists participate because the gains were at the company level and not at the work level.
As an aside, note that the license as drafted does not prohibit a file barter company such as the Pirate Bay or Limewire to profit from the sale of advertising. Note: “The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.” Selling advertising at the company level does not violate the license as there never is money paid for the exchange on the typical illegal service like Limewire.
Now you would think that if the purpose of the Corporation’s license was to promote a “sharing economy” considerable attention would be paid to defining what this noncommercial business is all about, right? I guess it must all have been in the missing paragraph 8(f).
Maybe 8(f) said something like this: “No commercial gain may be sought by websites offering digital files of our music, whether through advertising, exploiting databases compiled from their traffic, or any other means.”
That’s from the Grateful Dead’s notice to “MP3 Site Operators.” Maybe that’s what the drafters of the Corporation’s “lawyer readable code” meant to put into the missing paragraph 8(f). Maybe Barlow knows.
Of course, a broad statement like the Dead came up with would kind of rule out that “hybrid economy” thingy. Particularly since the Corporation’s CEO seems to think that Creative Commons Corporation will cause all businesses who do not genuflect properly to perish.
2. Co-writes. The co-write situation is a problem because there is no provision in the “deed” for more than one person being the “Licensor” or “Original Author” at the grant stage (although Creative Commons Corporation makes you represent that whoever is clicking through is the “Licensor” (meaning “the individual, individuals, entity or entities that offer(s) the Work under the terms of this License.”) That’s great from the Licensee’s point of view (which is, I would argue the entire point of the existence of Creative Commons Corporation). But how can a click through agreement deal with multiple licensors—like in the most fundamental collaboration in our business, the co-write.
It doesn’t.
This is not a trick question, it just doesn’t work.
3. Gaming. As you can see, I have created a fake Creative Commons Corporation audio license for “Hey Jude” by John Lennon and Paul McCartney. Nobody checks to see if the person obtaining the grant is actually the person who owns the work. Why? That would require a human and a real infrastructure. I know, I helped to build one once. This is also known alternatively as a “red flag” and as “overhead” two things that the licensee beneficiaries of the Creative Commons Corporation license want nothing to do with.
4. The Horse Is Out of the Barn: Professor Jane Ginsburg of the Columbia Law School has an excellent critique of “public licenses” and specifically the Creative Commons Corporation licensing regime (“The Gift That Keeps on Giving”). This is an excellent read for the layperson by a highly respected academic, and breaks down the issues very well. One issue that Professor Ginsburg focuses on is the irrevocable nature of the Corporation’s license:“It must be emphasized that once the author has granted a public license, there’s no going back. Once publicly licensed copies are made available, they will generate more licensed copies, and it will be too late to reverse course. While the author can cease to offer the work herself with the license, or can re-offer it with a more restrictive Creative Commons [Corporation] license (for example, to exclude derivative works where once she allowed them), she will not be able to stop the circulation of copies previously accompanied by prior terms of the license.
Downstream users whose copy of the work incorporated the prior version of the license may be entitled to rely on – and further propagate – that version. In that case, confusion will reign if different versions of Creative Commons [Corporation] licenses with regard to the same work are simultaneously circulating.”
Professor Ginsburg has identified an excellent question— what it would really mean to retain the ability to grant an exclusive license after having granted a public license in the same work? Not much.
In fact, retaining that right is largely meaningless because the author “will not be able to stop the circulation of copies previously accompanied by prior terms of the license.” Granting exclusive licenses to distributors, book publishers, music publishers or digital aggregators is an important, if not crucial right, for a creator to retain, there’s not much left to parlay if the work is subject to a prior public license.
5. Cover Recordings
Let’s say you recorded “Hey Jude” and you wanted to make that recording available under a Creative Commons Corporation “audio” license. Let’s also assume you’re not an heir of John Lennon and that you are not Paul McCartney. If you can figure out how to make that “audio” license apply to the song, I’m all ears. But interestingly, the licensee probably gets no relief because of this quitclaim paragraph (which reads like it was lifted from a software license):
“UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND ONLY TO THE EXTENT OF ANY RIGHTS HELD IN THE LICENSED WORK BY THE LICENSOR. THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MARKETABILITY, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.”
300 million works on a quitclaim. And counting. Genius, eh?
Buyer Beware
There are plenty of places on the Corporation’s website where they admonish users of their licenses to be sure of their rights, and of course the licensees have no protective rights under the license—no indemnity at all. Maybe just in case someone might think that the Corporation had some responsibility for flaws in the license they drafted, essentially for non-lawyers? So buyer beware, eh? Well, no kidding. If the buyer was really going to beware, there’d be no need for the Corporation’s license in the first place because licensees would just contract directly with licensors and do their own diligence. So chanting “buyer beware” becomes a bit iterative. But then of course, it’s far less likely that the Corporation would be raising all those millions, would they?
Prohibit Public Licenses in Co-Creator Situations?
Anyone who is carefully building a catalog that they hope will feed their family and grandchildren some day would want to know for the foregoing and other reasons what their co-writers were up to regarding Creative Commons Corporation or other public licenses. The idea would be to have agreement among the co-writers (or other joint creators) to prevent one co-owner of copyright from granting a public license without the approval of their co-writers. (There are some technical reasons why this grant by a co-owner of an undivided interest might be binding on the co-writer, but let’s assume it would be.) This isn’t to say that the co-writers could not just as easily agree to use the Corporation’s license—but they’d all have to agree. And then they’d have to figure out how to fill out the form.
What’s The Situation with the Poker Prof?
If you watch the beginning of Steven Colbert’s interview with Lester Lawrence “Ace” Lessig III promoting Lessig’s book “Remix”, there is an “aha” moment—the basic principle of the hybrid economy is that regular folks (lawfully or unlawfully) create content and post it, or give up their privacy to enrich the Web 2.0 company. The company gets rich and the users who create the content do not. (“Colbert: [laughing] The hybrid economy is where everybody else does the work and Flickr makes the money! Lessig: Don’t tell anyone!”)
Who would do this? Maybe those who Mark Zuckerberg apocryphally referred to “Dumb F*cks”? Let’s call them “Zucks”. So maybe it is about the Zucks. Lessig pretty much says this to Colbert’s great amusement, but watch the video and ask yourself if Lessig’s smugness says it all. Maybe it’s just me, but I thought it was pretty funny, too. (PS, never try to outfunny a comedian, especially not on the comedian’s own TV show. It will not work out so well.)
It Sure Does Cost A Lot of Money to Give Things Away For Free
What does free content mean to Web 2.0 companies? Profit. Imagine the board room conversation: “So if we could just find a way to get these Zucks to create the content for free and then we sell it!”
So you can see that there is an inexorable drift toward something like Creative Commons Corporation licensing due to the market forces of Web 2.0. If there wasn’t a Creative Commons Corporation, someone would have to invent one because there isn’t enough advertising money to pay arms-length licensing fees for all that content—and then, of course, you’d have to take the time to negotiate the licenses.
You think that there’s enough profit in there to make it worth giving $20 million to Creative Commons Corporation? Particularly given that Ito seems to think that all businesses who refuse to do business with Creative Commons will perish?
Meet The Man 2.0. Or perish. (“Мы вас похороним!”)
Stay tuned for Part 3 where we will look at how they managed to screw up whitehouse.gov. I’m glad Ito limited his threat to businesses.
See also Part 1: “News from the Goolag: Free Culture, Free Beer and Free Money”
See also: Carefully Co-Writing Without Creative Commons
Postscript:
I’m told that there are a couple people out there who would have folk believe that in this post I “put” “Hey Jude” under a Creative Commons Corporation license, or that somehow I “committed fraud” in the section above entitled “Gaming” that warns of potential fraud due to a lack of security in the Creative Commons Corporation licensing process.
Obviously–neither assertion is true. First, in order to “put” a work under the license one would have to put the work under the license. No work is involved in this post. So I’m not quite sure what that means.
As far as “committing fraud” goes, there are nine conjunctive elements to the common law tort of fraud as generally adopted by the several states and the federal government. None are present. In fact–the place where the reference to the “license” occurs is a paragraph that uses the license as an illustration of avoiding scams that points out a potential problem with the Creative Commons Corporation license. If you’re going to use the big words, look them up so you know what they mean.
But then again, maybe the solution is in the missing paragraph 8(f) and it’s all much ado about nothing. Probably not though–as the Corporation tells us “Since there is no registration to use a CC license, CC has no way to determine what has and hasn’t been placed under the terms of a CC license. If you are in doubt you should contact the copyright holder directly, or try to contact the site where you found the content.”
So like I said–why bother with the whole thing?
Music Technology Policy 