10 Minutes for Creative Commons: After 10 Years, It Still Seems to Cost A Lot of Money for Google-Backed Creative Commons to Give Things Away for Free

[Editor Charlie sez: This post from 2012 is worth revisiting.]

Creative Commons Corporation is celebrating its 10 year anniversary with a 10 day celebration–Lessig declares 10 days of bread and circuses, panem et circenses for the Commoners.  So how are they doing?

MTP readers will recall the rather extraordinary flaws in the Creative Commons Corporation “license” from mischaracterizing copyrights (like an “audio” license that fails to distinguish between sound recordings and songs) to just blatant typos.  Although those mistakes eventually got fixed, the bad “deeds” were in place for years so an untold number of works were incorrectly “licensed”.  (See “Creative Commons Corporation: Because It Sure Seems to Cost a Lot of Money to Give Things Away for Free“)

This is surprising given that Creative Commons Corporation is awash in Google money (see this 2008 Schedule B from the Creative Commons Corporation Form 990 documenting Google’s $1,500,000 contribution.)  In fact, as you can see from the 2008 contributors list (subsequent returns are more carefully filed), foundations associated with Big Tech heavy hitters like Hewlett Packard, Ebay, Mozilla (widely thought to be a front for Google) and a corporate donation directly from Google account for $8.5 million in Creative Commons donations.  I guess the others in the Gang of Four were not invited to the party.

And speaking of party, then of course there are the poker money donations from a Partygaming founder right before a plea bargain to avoid prison time (see “Poker Money and the Ethics Professor“), so it wasn’t just Google.  (According to the Megavideo indictment, both Adsense and Partygaming provided early support for Megavideo’s ad sales…but I digress.)

So Creative Commons Corporation’s rather unsavory benefactors certainly provided CC with the money to hire people who knew what they were doing.

But no, they screwed up again.  There are still deep flaws with Creative Commons Corporation licenses. Here’s a few music business issues based on the most recent “suite” of licenses (or “legal code” whatever that means).  I’ll leave it to the film guys to point out the screw ups that affect their business.

As you’ll see, what Creative Commons licenses boil down to is a fig leaf that offers some protection to the litigious licensee (e.g., Google) if it turns out that the person using the Creative Commons license (the “Licensor”) didn’t have the right to put the work under a CC license in the first place.   And that’s what Google paid for by the look of things.

A word about the Creative Commons Corporation’s board–the chair is a fellow named Joi Ito.  MTP readers will remember him as saying that “Business will overcome its opposition to Creative Commons or perish.”  Obviously sheer genius.  And the Vice Chair is Esther Wojcicki, the mother in law of Google co-founder Sergey Brin.  Not in her CC bio, but why would you feel the need to disclose that your son in law’s company gave $1,500,000 to the nonprofit whose board you are on?  Details, details.  Or maybe you just assume that everyone knows?  “Everyone” (who “matters”) probably does know…in Palo Alto.

And since we last looked, Creative Commons Corporation has added someone from the music business.  Yes, “the music business development manager at [Google’s] YouTube”.  And that’s going so well.

I challenged myself to spend 10 minutes looking at the Creative Commons basic form license–a minute for each year they’ve been operating.  Here’s what I came up with.

1. Cover Recordings: Creative Commons still has not addressed the fundamental “cover recording” problem.

This is how they define the “Work” that is being licensed:

“Work” means the literary and/or artistic work offered under the terms of this License including without limitation any production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression including digital form, such as a book, pamphlet and other writing; a lecture, address, sermon or other work of the same nature; a dramatic or dramatico-musical work; a choreographic work or entertainment in dumb show; a musical composition with or without words [aka lyric]; a cinematographic work to which are assimilated works expressed by a process analogous to cinematography; a work of drawing, painting, architecture, sculpture, engraving or lithography; a photographic work to which are assimilated works expressed by a process analogous to photography; a work of applied art; an illustration, map, plan, sketch or three-dimensional work relative to geography, topography, architecture or science; a performance; a broadcast; a phonogram; a compilation of data to the extent it is protected as a copyrightable work; or a work performed by a variety or circus performer to the extent it is not otherwise considered a literary or artistic work.”

“Phonogram” is defined in the WIPO phonogram treaty as “any exclusively aural fixation of sounds of a performance or of other sounds.” I’m assuming they are using the word “phonogram” based on WIPO as you would normally use “phonorecord” in the US. CC also references the WIPO treaty phonograms treaty in their license.

So the CC license could be twisted to include a song and a recording of a song. Arguably, a recording of the song that is the subject of the license. However, it does not include a recording of someone else’s song (and apparently can’t unless the songwriter is part of the CC license)–but you’d never know that from the license itself unless you really parsed through the language and the FAQ:

Be specific about what you are licensing

You need to be specific about exactly what you are CC-licensing when you apply the Creative Commons license to your work. We give you the option of identifying the format of the work in the metadata (text, audio, video, image, interactive) and you should use this. This enables more precise machine-readable language.

However, you should also think about exactly which elements of your work you are licensing. [“your work”?  Don’t they mean “the work”] For example, in the case of a website, are you licensing just the text and images? Or also the stylesheets and the code that run the site? Similarly, if you make CC-licensed music available for download on your site, does the Creative Commons license apply to both the musical composition and the sound recording as well as any artwork and graphics at your site? And remember, as discussed under “2. Make sure you have the rights” above, you need to make sure you have the rights to each element that you license under a Creative Commons license.

Take a moment to think about exactly what you are intending to license and then frame your metadata and legal notice accordingly, eg. “All images at this site are licensed under a Creative Commons [insert description] 2.5 license.”

So this would be the ideal place to include an obvious warning addressing cover recordings, one of the most common situations found online–in fact encouraged by some services.

A warning both to the licensor and to the licensee.  So I have the same criticism I had before–rather than having a kloogy single license to cover sound recordings and songs, why not have one for each if the recording is of a song that can’t be licensed under a CC license?  If your goal was to reduce confusion in the system.

The smartest guys in the room–just ask them–with millions behind them can’t manage to “cover” basic points that a first year music lawyer would catch.

2. Moral Rights:  Moral rights are typically a right to protect creators that exists outside the U.S.  Understand that “moral rights” are more like “human rights” than “economic rights” or “intellectual property rights.”  (And certainly are different than “robot rights”, a topic that has held some recent attraction for Lessig & Acolytes.)

But also understand that Americans can approximate similar protections through palming off, reverse palming off, misappropriation of the right of publicity, defamation and other types of claims.  See also Visual Artists Rights Act of 1990 in the U.S.

These are exactly the rights that are at issue in sample licenses (or as the Lessig-ites would say, remixing).  For example, if an artist opposes human trafficking, but finds their recording sampled into a new recording by someone extolling the benefits of pimping, that would force the artist to be associated with an activity they not only reject, but may spend a good deal of time rejecting publicly.  This implicate the artist’s moral rights.

These are personal rights to artists and are usually not waivable in jurisdictions that recognize them as distinct from economic rights (especially France).  It is pretty typical to see a waiver of moral rights in record company or movie studio deals–the bad “old boss” contracts, right?

Creative Commons tries to put a gloss on this issue.  The license seems to recognize moral rights (the licensee “must not distort, mutilate, modify or take other derogatory action…that would be prejudicial to the Original Author’s honor or reputation”).  But the license–just like the record companies and studios–requires a waiver (and, of course, this could not apply to cover recordings except in the unlikely case that the cover songwriter is a party to the waiver):

“Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation. Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author’s honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise.”

This seems to say that the licensee (“You”) cannot damage honor or reputation as a condition of the license (probably a condition subsequent, i.e., that exists after the license comes into effect).  But then the license goes on to say that the Licensor—not the Original Author—waives “this Section” whatever that means (presumably the right to enforce a breach of the moral rights protection by the licensee, although it’s hard to tell).  The right to protection of “honor and reputation” is with the author, not the “Licensor” unless the Licensor is the Original Author.  If the Licensor is not the Original Author (and therefore probably does not have the ability to even try to waive what may be an unwaiveable right), it’s hard to know what this language even means.

And this is particularly odd because of this language in the “License Deed” (kind of a summary of terms):

Other Rights—        In no way are any of the following rights affected by the license:

Your fair dealing or fair use rights, or other applicable copyright exceptions and limitations;

The author’s moral rights;

Rights other persons may have either in the work itself or in how the work is used, such as publicity or privacy rights.

But remember…”Licensor agrees that…the Licensor will waive or not assert, as appropriate, this Section [that describes moral rights], to the fullest extent permitted by the applicable national law”

So this doesn’t make much sense.  Unless it is a clever ambiguity because the deed talks of “the author‘s moral rights”  (remember the license carefully says that it is the Licensor who is waiving and the Licensor may or may not be the author), and “moral rights” meaning all moral rights which may not be waived not just the “honor and reputation” piece.  The deed also talks of the rights of publicity of “other persons”, i.e., other than the Licensor.  Of course the rights of “other persons” would be unlikely to be implicated as they are–other persons, i.e., not signers of the license.

Which leads back to the central point that the CC license is very ambiguous, to be kind.  So why bother with it at all.  Unless it’s more about the organization than the service.

3. Joint Authors: CC defines the “Licensor” (a different term and potentially different person than the “Original Authors”) to means the individual, individuals, entity or entities that offer(s) the Work under the terms of this License.

This is a nice distinction because the Licensor may not be the “Original Author”. If there is a co-writer, for example, who is an Original Author but not a Licensor, then the person taking the CC license has no way of knowing whether the co-writer has agreed to the license.  As a practical matter, the non-granting co-writer has no way of knowing what their co-writer did, either, because Registry Boy Lessig’s Creative Commons keeps no registry for their works.

4. Buyer Beware: The entire Creative Commons system is based on the premise that “buyer beware.”  Which doesn’t pass the laugh test.

Creative Commons takes no responsibility for their license.  They take no responsibility for whether the person “signing” the license has the rights, and makes no effort to fix any mistakes (including, and maybe especially their own).  They warn everyone in sight that the license may be meaningless–and do so correctly.

For example, Here’s the FAQ that seems most applicable to the joint author problem. Note that this doesn’t deal with the effect on a licensee of taking what turns out to be a faulty CC license. Is the idea is that the licensee (e.g., Google) can say they relied on the faulty license?

What happens if someone applies a Creative Commons license to my work without my knowledge or authorization?

CC alerts prospective licensors they need to have all necessary rights before applying a CC license to a work. If that is not the case and someone has marked your work with a CC license without your authorization, you should contact that person and tell them to remove the license from your work. You may also wish to contact a lawyer. Creative Commons is not a law firm and cannot represent you or give you legal advice, but there are lawyers who have identified themselves as interested in representing people in CC-related matters.

I bet.

Which leaves the question–why bother with any of it?  And 10 years in, it still sure seems to cost a lot of Google’s money to give things away for free.