Does Creative Commons need more court cases?

Last week the excellent Internet Cases blog reported on an new court case involving Creative Commons licences: GateHouse Media, Inc. v. That’s Great News. I haven’t been able to find the complaint online yet (if anyone has seen it, please drop me a link). Going by Evan Brown’s description, this seems like a straightforward situation initiated because of commercial interest clashes. GateHouse Media publishes daily and weekly local newspapers, as well as several local-oriented websites. Some of their content is released under a Creative Commons licence. That’s Great News is a company that prints out news items and turns them into a plaque, and it is directed to people who are mentioned in the news, so that they will have a memento of their 2 seconds of fame. GateHouse Media provides a similar service, so they have sued the plaque company for copyright and trademark infringement, and unfair competition. What is really interesting is that they have also sued under breach of contract of their Creative Commons licence.

There are some interesting legal issues here about the interaction between copyright, fair use and contract. Most of these have been dealt with in great detail by Aurelia Schultz at the 1709 blog. The main legal question is whether That’s Great News is indeed infringing copyright, and the answer according to Aurelia is that there is 7th Circuit precedent that similar actions have not been deemed as derivative works, and therefore are not infringing. The other legal question that Aurelia accurately points out is that one cannot use a CC licence to contract out of fair use and other copyright exceptions.

This case is just one of a growing number of cases that is trying to explore the interaction between copyright and contracts, this is one of my pet subjects so I won’t bore you with the arguments, but if you are interested you can read an article about the subject here. There are however two points about this case that I have not seen explored elsewhere.

The first is that I am troubled by the use of Creative Commons licences by GateHouse Media. I may be entirely mistaken, but it seems like GateHouse has released some content under CC licences precisely to stop companies like That’s Great News from doing what they are doing, namely to make commercial derivatives of the original work. It cannot be a coincidence that GateHouse is releasing some of its content under an Attribution-NonCommercial-NoDerivatives licence, which is the less open and more restrictive CC licence out there. What I find disturbing is that a commercial enterprise looked at different licensing options and chose a CC licence in order to restrict commercial uses of the work, which seems to be counter to all of the definitions of openness and freedom that people in the open camp use, and lends credence to the many arguments against NonCommercial CC licences out there. When a company believes that the best way to close down content is to use a CC licence, then there must be something wrong happening.

The other interesting issue in this case is a more subtle question, one that I have encountered since the early days of open source licensing. There seems to be a myth that free and open licences, including CC, require court cases in order to prove that they are enforceable. I remember that this was a common FUD (Fear, Uncertainty, Doubt) tactic employed by free software detractors for years in order to instil doubt in the minds of potential adopters of FOSS. The argument went something like this: “The GPL has not been tested in court, so you should not adopt it”. I remember clearly being at a conference where a well-known German professor dismissed the GPL as entirely unenforceable because it had not been declared valid by a court of law. How ironic that the first jurisdiction to enforce the GPL was Germany.

I have been reminded of this because of an article by Glyn Moody entitled Are the Creative Commons Licences Valid? This is going to be one of the few occasions when I disagree with Glyn. I do not think that CC licences, or any licence to that effect, requires a court decision in order to be valid. There are thousands and thousands of commercial End-User Licence Agreements that are never tested in court, yet they manage to have legal effects and are usually followed to the letter by its users without producing a conflict. True, many licences contain clauses that when analysed by legal practitioners and scholars may seem doubtful. But even then a court case is required to declare the clauses invalid. One could say that a licence is valid until proven otherwise.

Having said that, CC licences have already been declared valid in the Netherlands, Germany and Spain (and Bulgaria, thanks Javier). While favourable court cases help to promote CC adoption by commercial enterprises and the public sector, it is important to remind everyone that there is no reason to doubt their validity. CC licences have been the subject to incredible legal scrutiny in hundreds of jurisdictions, they have been ported and translated to accommodate legal systems around the world, and there has been little doubt in the literature about their validity. My humble opinion is that they are as valid as any commercial licence out there.