James Grimmelmann has about about law faculty blogs that I noticed via Michael Froomkin (Ann Bartow comments here).Â His comments are addressed to possible conflicts of interest faced by academic bloggers who accept ads.Â The point that caught my eye was this one:
Similarly, the drive to monetize readers encourages blogs to keep a close hold on their content. None of the ad-laden lawprof blogs listed above offers its posts under a Creative Common[s] license. (By way of contrast, Feminist Law Profs and the Becker-Posner blog, both of which are ad-free, use Creative Commons licenses.) I doubt that this tradeoff was explicit in most bloggersâ€™ minds, but itâ€™s a good example of a deep and subtle tension. Blogging for money encourages a particular way of thinking about your writings, one that sees them as a resource whose value can be improved through close management. That way of thinking can make it harder to remember that ideas are naturally as free as the air to common use. As law professors, we of all people should be most attuned to the social value of giving our ideas away freely to all comers to do with as they will.
One way to read this section is this:Â The failure to blog under a Creative Commons license reflects a “control the content” mindset that should be anathema in the academic community.Â Therefore, if one subscribes to a “free to all” norm for academic writing and commentary, one must offer that writing under a CC license, else suffer the risk of being on the wrong side of the information battle.
I’m posting this note — on a blog that is Not Licensed Under a Creative Commons License (but which is instead made freely available under the Copyright Act of 1976, along with what I believe should be robust standards for fair use, for the idea/expression distinction, for copying that isn’t “reproduction” and for adaptation that isn’t “derivative”) — to make the point that I disagree with that reading on the merits — if in fact that’s what James meant.Â It seems to me clearly possible to advocate strongly for broad and full and unconstrained distribution of knowledge and culture, yet to remain intrigued but not necessarily sold on Creative Commons.Â Or, even if one is sold on Creative Commons, it seems to me that CC obviously is not the only way to promote free culture.Â As Larry Lessig is chronically at pains to point out, CC is all about the creator’s choice.
Who owns the comments?
I like this critique of CC by Niva Elkin-Koren:
“The legal strategy which empowers owners to govern their creative works facilitates a far-reaching coalition among libertarians and anarchists, anti-market activists and free-market advocates. While such an ideological diversity might serve the political goals of a social movement, it may compromise the long term goal of making creative works more accessible. The lack of a core perception of ‘freedom in information’, may lead to ideological fuzziness that would weaken the prospects for constructing a workable and sustainable alternative to copyright. Furthermore, absent a commitment to a comprehensive standard of ‘freedom in information’, Creative Commons’s defining principles are reduced to empowering authors to govern their own work. The paper predicts that this strategy may strengthen the proprietary regime in information. “
You’re right; that isn’t what I meant.
Let me rephrase, more provocatively:
I own this comment. It is not licensed under a Creative Commons license. No one may reproduce or distribute it without my express permission in writing.
Is this the copyright law equivalent of the Epimenides paradox (i.e., Epimenides the Cretan asserted “All Cretans are liars”)?
You own the copyright in the comment (sentence one is true).
The proprietors of madisonian.net necessarily have an implied license to reproduce it, distribute it, and publicly display it (sentence two is not true). (The readers of the blog may have an implied license to do the same, but that statement isn’t necessary to the paradox.)
The implied license must exist, because if it didn’t, the act of submitting the comment (into a mechanism that posted it without human review) would ipso facto trigger liability for infringement. Copyright law does many strange things, but it can’t make me an involuntary infringer. Cf. Diamond v. Am-Law Pub. Corp., 745 F.2d 142 (2d Cir. 1984).
In theory, I suppose, I might avoid liability for infringement by refusing to accept comments except under a policy that appropriated commenters’ copyrights to myself — but such a policy would likely be ineffective to transfer commenter copyright under Section 204. So to avoid involuntary infringement liability, I would have to refuse to allow the posting of comments altogether. Or set up some kind of royalty mechanism: You comment, I pay.
Since all blogging platforms that I’m aware of contain an option that permit comments, and since the norms of the blogosphere lean heavily toward indulging comments by default, I might conclude (moreover) that Six Apart and Google (as owner of Blogger) and whoever distributes WordPress are all liable, to a class of commenters, for inducing copyright infringement.
Maybe that scenario isn’t all that fanciful.
Frank– thanks for the pointer. I agree with you on CC.
Here’s a link to my response to Grimmelmann.
There’s also a false dilemma implicit in this: That the only potential options are “you must rely on Copyright Act fair use” and “you must rely only on the CC’s covenant not to sue”. My description of the CC there should tell you what I think of the so-called license… because it doesn’t meet the legal or commercial tests for a “licensing transaction,” and because it’s relatively easy for a successor in interest to break a covenant not to sue.
That’s why my blawg has the following notice on it:
“All material Â© 2003â€“07 C.E. Petit except where otherwise indicated. All rights reserved. N.B. This blawg does not use the Creative Commons License, although I’m usually pretty good-natured about permissions for attributed reuse.”
In short, if I’m going to give a purported legal notice, I’m not going to rely upon a fundamentally flawed and/or deceptively misnamed one.