Dennis Kennedy

I’ve been following the developments with the “Creative Commons” licenses with more than a little interest. These licenses, associated with Lawrence Lessig and other prominent people in legal and technology fields, are generally intended as a way to created standard usage licenses that will facilitate the “permission flow” in distributing, reusing and reprinting works. The intent of this family of licenses, which is very laudable, builds in many ways out of the Open Source license tradition.

Now, I’m a big fan of the Open Source licenses and the principles that underlie them. But, I have a significant concern about the Creative Commons licenses.

I speak about that concern now because it seems lately that many bloggers and legal bloggers, in particular, are adopting the Creative Commons licenses, almost as a badge of honor, often in a congratulatory “welcome to the club” fashion. The extent of adoption by lawyers and the fact that Movable Type makes it a simple choice to add the license also seem to give the licenses a certain level of blessing.

I first saw the issue I'm concerned about raised on the SATN.org blog here and here. The analysis in the first post is very good and I recommend it to you rather than repeating it here.

The language at issue has the adopter of the license make a couple of warranties as is the case in, for example, Section 5 of the Attribution License. The language is:

“5. Representations, Warranties and Disclaimer

a. By offering the Work for public release under this License, Licensor represents and warrants that, to the best of Licensor's knowledge after reasonable inquiry:

i. Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder without You having any obligation to pay any royalties, compulsory license fees, residuals or any other payments;

ii. The Work does not infringe the copyright, trademark, publicity rights, common law rights or any other right of any third party or constitute defamation, invasion of privacy or other tortious injury to any third party.”

See Attribution License.

As a general rule, software is usually licensed both in the Open Source model and in the case of most consumer-oriented commercial software on an “AS IS” basis with no warranties whatsoever. This approach to warranties is a key element of both types of licenses. The rationale is that software can be distributed for free or at a low cost because only if it is offered without warranties. If the licensor had to provide warranties, the price of the software would have to be higher.

Quite ironically, the Attribution License itself leads off with a disclaimer that does in fact say that the Attribution License is offered on an “AS IS” basis with no warranties.

Why does this matter?

As an author, especially when there is no payment for my work, there is no way that I would agree to adding these types of broad warranties without receiving some kind of payment to compensate me for the additional exposure that I would have to expect because of that language. Similarly, I would not recommend that a client of mine give such warranties unless forced to do so because of the economics of the deal after fighting to eliminate them.

My question then is: why give these warranties when no one has asked for them?

I believe that anyone who uses a Creative Commons license without understanding this point and thoughtfully deciding to go forward is taking on unnecessary legal exposure.

I mention this because the Creative Commons blog yesterday posted about the new streamlined process and other responses that were made as a result of comments and suggestions made in the last nine months. If you look at the two postings from SATN.org, you’ll probably conclude, as I have, that the comments did not result in any changes and that the critique was rejected.

I do not use the Creative Commons licenses for my work, in no small part because for this very language, which I absolutely would never voluntarily include in any license for someone to reprint my work, especially for free. However, I have great admiration for the people involved and for the overall goals of the Creative Commons approach, and, frankly, wouldn’t mind being part of the Creative Commons community because of the way it could ease the process of giving permissions for the reprinting of my materials.

What I’m suggesting is that Section 5 be revisited (especially since Creative Commons is not giving the same warranties on its own licenses) and thought be given to amending the language to reflect the concerns of authors. It is important to note that the Creative Commons licenses are great licenses for republishers and secondary users of materials. Unfortunately, most bloggers fall into the author category and the licenses are less favorable than they are for republishers.

Until then, I suggest that bloggers be more circumspect in adopting the Creative Commons licenses, read the actual language of the license (not just the summaries), and then determining whether the language is something they can live with. In my case, I’m quite uncomfortable with this language and it seems unnecessary, especially in a world where “AS IS” clauses are pretty standard. Since Creative Commons licenses are not negotiated, I am reluctant to give away terms that the licensee would generally have to achieve by negotiation. I prefer an approach where the default provision is an "AS IS" type of provision.