the legal thing... by Mike Dillon: Have a question about licenses

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Thursday Oct 11, 2007

Have a question about licenses - ask your teenager.

I recall working on my first software license over twenty years ago. At that time the concept of a "license" was alien to most attorneys. And, when I explained to friends that I was a "licensing attorney" some thought I worked here. (Unfortunately, I'm not making that up.)

Thus, I am still fascinated by how the concept of a “license” is becoming fully integrated into mainstream culture. Here's a recent example in which a photograph of a young woman posted to Flickr was used by Virgin Mobile in an advertisement. Flickr uses a Creative Commons license and the individual who posted the photograph apparently did not understand the specific terms of the license used for the site. Obviously, the subject of the photograph was quite surprised to find that she was appearing in a bus stop advertisement for Virgin Mobile.

What I find most interesting here are not the specifics of the laws that apply, but rather how the Flickr community quickly responded and in a very knowledgeable fashion. Collectively, they cover most of the legal analysis that previously could only have been provided by an experienced licensing attorney. Yes, some of the posts are incorrect or inappropriate, but the overall level of legal awareness they represent is so much higher than at any time in the past.

Given the significant growth of social networking sites and developer open source communities, public awareness of licensing will continue to grow. With individuals also increasingly becoming content creators (ask your teenager whether they are creating anything online), it's only a matter of time before most people understand the laws relating to licensing as well as they do the laws covering how they drive their cars.

Posted on 10:30AM Oct 11, 2007 | Comments[23]

Comments:

Thanks for the post. I think we know so much these days thanks to the great work done by CC volunteers from around the world. They've put in much time in creating/explaining/updating these licenses and also defending the test cases involving CC licenses in court when necessary.

Big round of applauses to these volunteers.

P.S. I thought I knew the CC licenses inside out but I did let a few of my Flickr photos defaulted to my usual Attribution-NonCommercial-ShareAlike when I should have used a "All rights reserved" license (or at least No Derivatives).

Posted by Kempton on October 11, 2007 at 03:33 PM PDT #

By the way, Prof. Lessig, founder of Creative Commons, has an interesting post on this, "On the Texas suit against Virgin and Creative Commons"
http://lessig.org/blog/2007/09/on_the_texas_suit_against_virg.html

Posted by Kempton on October 12, 2007 at 09:44 AM PDT #

You've written before about simplicity and clarity in contracts. In a world where the awareness of licensing and its legal implications is growing, this becomes more important than ever.

Compare the CDDL http://opensource.org/licenses/cddl1.php with the new Microsoft Public License http://opensource.org/licenses/ms-pl.html and Microsoft Reciprocal License http://opensource.org/licenses/ms-rl.html .

Microsoft seems to understand that new licenses are viewed with suspicion by license-aware communities, and has done a superb job of allaying this suspicion by making them clear, simple, and (importantly) short.

Can Sun learn from this? The FUD surrounding the CDDL is perhaps the biggest obstacle to the growth of the OpenSolaris community.

Posted by Tom Shaw on October 16, 2007 at 09:19 PM PDT #

Dear Mike,

When you wrote "Flickr uses a Creative Commons license," you left a potentially incorrect impression of Flickr's licensing options. You also cast aspersions on the family of Creative Commons licenses.

Based on my experience as a Flickr user, it is my belief that Flickr offers at least seven licenses, and the default choice is "All Rights Reserved." That's an important point for your readers to understand: Flickr does not by default take any photographic rights from you, except that they insist on the right to use your photos for their own purposes, such as on the home page of their website. By default, you the photographer retain all rights with respect to all other parties.

Flickr also makes it easy to choose one of six different flavors of the Creative Commons family of licenses, representing some of the permutations of CC license options. For example, one of the safest flavors of Creative Commons license permits use of the licensed work for non-commercial purposes, provided that the photographer or owner is given attribution, and provided that the work is used in a non-derivative way. If you're willing to share your works, this flavor is relatively safe and restrictive.

The photographer of the work mentioned in your post had chosen a much less restrictive version of the Creative Commons license.

My hope is that you would amend your weblog post to clarify some of these issues.

Thanks, and regards,

Daniel

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