Creative Commons Licensing: Amount and Timing

This entry is so long it gets a Table of Contents:

Background: "I can't get rid of this license!"
The discussion so far
Displaying a Creative Commons License: It makes a difference where you put it
Removing a Creative Commons license: only partly possible [major updates in v. 0.92]
On XML Blog Licensing
A few final notes
In Conclusion

It also gets an updated version number: 0.92. I can't quite consider this final. I'm looking forward to more comments.

Some users have found that the current version of Movable Type doesn't allow a user to remove the Creative Commons license easily. The Movable Type developers are working on that issue, but the posts about the problem on the Movable Type support board raise the question of just what the legal impact of removing the Creative Commons license is. Phil Ringnalda and Shelley Powers have posted on the topic, and I'll refer to those posts again below.

I'm going to address two questions here that have come up in the discussion. First, when a writer displays a Creative Commons license on his or her website, what site content does the license cover? Second, what happens when a writer removes the Creative Commons license from the website?

Please note that readers should not interpret this discussion as individualized legal advice. Readers with specific legal questions should contact a lawyer who can give particular attention to the specific circumstances. The following discussion addresses only hypothetical scenarios. Readers who want to use the Creative Commons license in a very limited fashion, for example, should talk to a lawyer about their specific circumstances. This is an in-process document, something you probably don't want to rely on for legal guidance.

In response to Steve's post in the MT forum, Phil Ringnalda wrote:

In fact, the question was "since there's no option to delete it from the Config page, do I have to go into my template and delete it there?," but still and all the answer should be "Why bother removing it? You granted an irrevocable license." Whether or not you pull the template tags, the very second that you choose a license and say "rebuild all," it's under that license until your copyright expires, second thoughts or not.

He quoted the Creative Commons license text:

Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License.

Finally, he concluded:

You can change your mind, you can delete the tags, you can add "All Rights Reserved, Republishers Will Be Shot," but the second you publish something under a Creative Commons license, it's under that license until your copyright expires (or, as we in the US like to refer to that term, "until Hell freezes over"). So if after you've read and digested the full legal code (not just the deed), and decided that it's what you want, great! ... But if you're just clicking buttons because you've seen that Creative Commons icon on other people's sites, please, think twice, and then think again. There are no do-overs.

I commented that that wasn't quite the whole story, and that there was a good reason one might want to remove a Creative Commons license.

I just wanted to clarify that new material added after the author removes the Creative Commons license grant would be covered by ordinary copyright protection, not the Creative Commons license. One might want to remove the Creative Commons code from the weblog to change the licensing for future entries. It's entirely possible under the law to have all the entries before 11:46 p.m. on February 21st covered by one license and all the entries after that time covered by another.

Phil concurred, but Steve objected to one of our assumptions:

It would have only granted an "irrevocable license" on any new material published while the CCL was still displayed. (The content published previously remains protected by its original copyright since it predates the CCL and cannot be covered by the CCL legal agreement.) Since no new content was published under the Creative Commons License while it was briefly displayed on the site, the license's addition to the page and later removal is mute [sic; emphasis added].

Shelley responded in her weblog,

Sorry, but from what I hear, the Creative Commons license applies to whatever it's attached to, regardless of date of material. Unless you specifically make annotations that the license is only effective on material dated after such and such a date, or only to the design of the site, or only to the writing, or only the images, that license applies to everything. And if you mix Creative Commons licenses and copyright on the same page, from what I've been told, the person can pick which license they choose to use your material under -- so long copyright.

So, the two questions have been raised: what's included when one adds a Creative Commons license? What happens when one removes it? There's a third unspoken question that needs to be addressed: When does a Creative Commons license become irrevocable, and as to whom?

We'll find a few things: First, putting a Creative Commons license graphic and link on the main page of one's weblog, without any kind of express limitation, probably licenses all of the content of the weblog whenever it was written. Second, the Creative Commons license does not magically change the nature of the work, nor is it tantamount to a public domain dedication. But for one provision, removing the Creative Commons license from one's website would still allow people who have already copied the work to keep copying it, but others would be prevented from copying it. However, all Creative Commons licenses possess a provision designed to pass the license on to everyone who receives a copy from someone who obtained the work under a Creative Commons license. That provision will apply even when the author stops offering the work under the Creative Commons license.

Unless the author expressly states otherwise, the display of a Creative Commons license on the main page of a weblog effectively offers a license for present and prior postings under the selected license. Steve seems to imagine that the license changes the nature of copyrighted work as it is created, and work that has already been created isn't changed when he adds the license to the website. However, license grants generally happen after one creates a copyrightable work; many people license work to others only after they have created it. With a license, the author grants others the right to make use of copyrighted material. The license exercises the author's power under section 106 of the 1976 Copyright Act to "authorize any of the following: (1) to reproduce the copyrighted work in copies ...." (17 U.S.C. § 106).

We interpret a license by first looking at its express language, then by using extrinsic evidence to resolve remaining ambiguities. We can also draw upon custom and ordinary usage to resolve ambiguities. In this scenario, we're worried about one particular ambiguity: it's not clear from the text of the license alone what content the license covers. To resolve ambiguities, we must look to the surrounding circumstances to figure out just what copyrightable work of authorship the author has included within the scope of the license. We use an objective standard to evaluate the circumstances, asking how a hypothetical reasonable observer would interpret those circumstances. We generally do not look to the unstated intent of the author to figure out what the author "really meant;" at least, not unless we can tell from the circumstances that the licensee knew or should have known what the author meant.

When an author displays a Creative Commons license on a weblog main page, a visitor has no means to determine what posts the blog contained before the author added the Creative Commons license. The text of the license doesn't help much. By its terms, the Creative Commons license covers "The Work (as defined below)...." See, e.g., this example license. It goes on to define Work" as "the copyrightable work of authorship offered under the terms of this License," a not particularly helpful definition. So we have an ambiguity.

A visitor can very reasonably interpret the presence of a license on the front page of a weblog to mean that the entire contents of the weblog fall under the license provisions, unless the author expressly says otherwise. It would be a different story if the author selectively applied the Creative Commons license or other licenses to individual weblog entries, and indicated no license on the weblog homepage. In that scenario, visitors would have no reason to believe that all of the content of the weblog fell under the license. Where the author simply displays the link to the Creative Commons license on the main page, the most reasonable interpretation is that the author has chosen to offer the entire contents of the weblog under the Creative Commons license.

This justifies the assumption that Phil, Shelley, and I shared: When an author simply posts the Creative Commons license (or a link to it) on the main page of the weblog and does not expressly qualify or limit it, the license probably applies both to prior content on the weblog and to new content.

The next question is what happens when one removes a Creative Commons license. We have a few possibilities:

(1) When the author removes the Creative Commons license, anyone who relied on it to copy content from the site may continue to copy that content under the license, but no one new may copy the content.
(2) When the author removes the Creative Commons license, everyone may nonetheless continue to rely on the Creative Commons license and to copy the work.
(3) When the author removes the Creative Commons license, no one arriving at the author's site may copy the material, but someone who obtains a copy from someone else who received the work under the Creative Commons license may make copies and distribute it.
(4) [This one is plainly wrong:] The license terminates and no one at all may copy the work anymore.

We will find that #3 appears to be the most accurate description of what happens when someone removes a Creative Commons license.

First, I'll explain why #4 is wrong: the express terms of the license say otherwise. That's the section of the license that Phil quoted:

Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

The license terminates only if the licensee -- the copier -- breaks the terms of the license. For example, if the license requires proper attribution and the licensee doesn't comply with that provision, the license terminates. However, the author cannot terminate the license by fiat.

However, the author can choose not to offer the Creative Commons license in the future. However, that decision may have little practical and legal impact on how heavily distributed the work becomes.

Let's create some hypothetical facts to make this a little easier to talk about concretely. Imagine that Anna Logue has a weblog. She'd been writing for a while and already had 50 entries when on February 15th, she added a Creative Commons license that displayed the Creative Commons graphic and a link to the "Attribution-NoDerivs-NonCommercial" license on her weblog's homepage. She adds 10 more entries. During this time, she gets 350 visitors to her site. One of them, Jason, copies one of Anna's posts in its entirety, properly attributes the text to Anna, and posts it on a noncommercial weblog. Anna gets cold feet, and at 5:15 p.m. on the 22nd, she removes the Creative Commons graphic and all links to the Creative Commons license. The evening of the 22nd, she adds a few more posts. On the 23rd, Erik copies the entirety of the same post Jason copied into his own noncommercial weblog, with proper attribution.

I wanted to throw more facts in to complicate matters some more, but I think we'll stick with this for today.

This question resolves easily. Anna retains all of the rights that copyright law gives her, and she hasn't authorized anyone to copy those posts.

For the reasons discussed in the previous section, it's most likely that the Creative Commons license covered all of the posts in Anna's weblog up to 5:15 on the 22nd, so we group them together. The question is, can she effectively take the 'imprint' of the Creative Commons license off those posts to limit further copying?

Larry Lessig has suggested that the answer is "yes," and that option 1 above correctly describes what happens when one removes a Creative Commons license from a webpage. In a December weblog entry, he wrote,

But just because you can’t revoke a particular license doesn’t mean you can’t revoke the offer. If, for example, you offer content under a Creative Commons license for a month, and then change your mind, you can stop offering the content under that license. Anyone who accepted your offer while it was valid, of course, has a deal. But no one after you withdraw the offer can accept anymore.

Professor Lessig's post includes an important (and correct) assumption: The license doesn't effect some magical abstract change in the work itself. Think of the author's decision to adopt a Creative Commons license as an offer to visitors. That offer says, "As long as you conform to these terms, you may copy and use this work in such-and-such a fashion." The visitor may accept that offer by using the work in that way. The license is visitor-specific, personal. The visitor obtains the rights in the license by visiting the website and copying content according to the terms of the license during the time the author is offering the work under the license. Visitors who come later cannot accept the offer, even as to works that the offer applied to before. That also disposes of the question of what happens to new posts. There was never a license offer covering those posts.

Professor Lessig's description, quoted above, leaves unconsidered a very important part of the Creative Commons license. In the comments to the original version of this post, Phil Ringnalda pointed out something important. He pointed to paragraph 8(a) of the Creative Commons licenses, which reads,

Each time You distribute or publicly digitally perform the Work or a Collective Work, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License.

I had previously argued,

Jason is not free to give Erik permission to copy Anna's entry, either, at least under the Attribution-NoDerivs-Noncommercial license .... That license includes the provision, "You may not sublicense the Work." Even if Jason has put a Creative Commons license on his own weblog, no one may freely copy Jason's copy of Anna's post.

When we look at paragraph 8(a) of the Creative Commons license, it looks like what I first said was rather incorrect. Now we have two seemingly conflicting provisions: one that says Jason can't sublicense the work, and another that says that Anna will give the Creative Commons license to anyone Jason passes the work on to anyway. What provision controls?

One might be able to construe the "you may not sublicense" provision consistently with the paragraph 8(a) provision by reading them together to mean that the licensee ("You") can give away copies of the material along with a Creative Commons license, but not under any different license. This provision appears in every Creative Commons license, and it fulfills the function of giving more people the ability to copy and use the work. But that also means that offering any Creative Commons license to even one person may as a practical matter render the licensor's decision to stop offering the Creative Commons license moot.

Some aspects of the paragraph 8(a) "license offer" make me skeptical. It's difficult to characterize what's happening in paragraph 8(a) using ordinary legal terms. Is it a full-blown license grant? Not quite, because we don't know who the licensee is yet. Is it an authorization for a licensee (like Jason) to grant a further license in the work at his own discretion? No, because we've already said he can't sublicense. That's to keep him from having any discretion over the matter; we don't want him to be able to change the rules that Anna set when she licensed the work. Is it an offer to license the work? At first glimpse, yes, but is that all it is? One can usually terminate an offer unless one has received something in return for a promise not to terminate the offer, and the author hasn't received anything here. If paragraph 8(a) is nothing more than an uncompensated promise to grant a license sometime in the future, then there are reasons to doubt its enforceability. So, I'm a little befuddled as to exactly how paragraph 8(a) of the Creative Commons license is supposed to work as a legal matter, and I'm going to have to talk about that with people who know more about copyright licensing than I do. Meanwhile, the safest route for would-be licensors is to assume that paragraph 8(a) does effectively allow the license to pass on to anyone who acquires the work under the license and complies with the license terms. It probably does work, though I still want to work out how it does in terms of legal doctrine.

Though section 8(a) of the Creative Commons license has difficult-to-discern legal underpinnings, we can easily see its goal: to make it hard for an author who has released work under a Creative Commons license to put a stop to further distribution of the work. The more positive statement of this goal is, to allow authors to 'retain their copyright while licensing [their works] as free for certain uses,' reducing the personal nature of the license as much as possible. See Creative Commons: About Us. Without paragraph 8(a), people who had taken the work under a Creative Commons license would still be able to make copies of the work (or display it on the internet), but at least the people they gave copies to wouldn't be able to do the same thing. With paragraph 8(a) in the license, everyone who receives a copy of the work from a Creative Commons licensee can redistribute the work with the license in exactly the same way, as long as he or she keeps to the terms of the license.

With this in mind, we can analyze the rights of the people in the hypothetical scenario. Anna no longer offers the Creative Commons license for people who want to copy content from her page. The license isn't permanently "glued" to all of the content, bugs in Movable Type notwithstanding. However, the license is permanently "glued" to the people who copied content while relying on its terms, so Jason gets to keep displaying the text of Anna's entry unless he breaks the rules in the license. Meanwhile, Erik copied that entry without permission, because the Anna no longer offered the Creative Commons license for that content. If he wants to copy it from Anna, he'll have to get her permission or defend that it's fair use, and that'd be tricky. However, it looks like he can turn around and get a copy from James complete with permission to distribute it and to extend the Creative Commons license. Anna's decision to stop offering the Creative Commons license didn't make much of a difference.

If, on the other hand, no one had relied on the Creative Commons license to copy Anna's entries while Anna was offering the license, it's probably unlawful for anyone to copy her entries after she stops offering the license.

People who are contemplating releasing material under a Creative Commons license must consider the potential impact of section 8(a). If it is fully legitimate and enforceable -- and we must for now assume that it is -- then there is no way to use a Creative Commons license while also restricting the people who copy your work from passing all of that license's privileges on to others, even if you stop offering your work under the Creative Commons license. A lawyer can design a license that will allow people to copy your work for limited purposes without allowing them to pass that same permission on to others. That wouldn't be much of a "Commons" license, and that's why the Creative Commons licenses don't do that.

Some people have begun to implement XML schemas* so that the XML rendering of a weblog's content indicates whether the content may be copied under the terms of a Creative Commons license. This has prompted the question, "Just what does the XML Creative Commons tag mean?" Does such a tag purport to grant a license in (1) the XML content only, or (2) the entire HTML content of the weblog? If it's the latter, does the schema provide for users to license individual posts only, or must they commit to licensing entire weblogs?

*I'm not terribly well-informed about XML, so I apologize if I inaccurately use this terminology.

I think that we should narrowly interpret an XML-tag Creative Commons license to apply only to the XML-rendered content, especially if the weblog does not contain a Creative Commons license graphic and link or grants the Creative Commons license in more narrow circumstances.

Shelley uses some language that might incorrectly suggest that a work under the Creative Commons falls outside copyright law ("so long copyright"). All copyright law still applies to the protected works. The author who implements Creative Commons licensing indeed abandons the most well-known of copyright privileges, the exclusive right to control copying of the work (17 U.S.C. § 106(1)). For Shelley, the § 106(1) exclusive right to make copies is the keystone of all copyright, and that is why she says what she does. As an analytic legal matter, however, copyright law still fully applies in terms of understanding what the Creative Commons license does and how it can be enforced and limited.

Here's something else to note. When an author uses a Creative Commons license in that blanket fashion -- simply displayed on the homepage -- it applies not only to copyrightable text on the weblog homepage, but also to copyrightable elements of the webpage design, images, and other copyrightable elements on the site.

What? You made it this far? Well, I'm curious to hear your thoughts. Comment below, add Trackbacks on the topic from your own weblog entries, or send me email.

My conclusions, in short, are: (1) A Creative Commons license (or any license) on the main page of a weblog will be interpreted to cover the entire weblog unless the author says otherwise; and (2) Although an author can choose not to stop offering the work with the Creative Commons license, the license purports to allow people who have already acquired the work under the Creative Commons license to pass on the license to others.

I don't aim to undercut the Creative Commons licensing scheme, but I do want people who decide to employ it to consider what it might mean for them.

I have an ethical obligation to advise people with specific legal questions and concerns to contact an attorney who can analyze the particulars of their cases instead of relying on my discussion here. People who are considering adopting a general practice of licensing their work should educate themselves, consider the full legal implications of their chosen license, and consult with an attorney.