[cc-licenses] Legal Questions on CC validity and enforceability
dana.powers at gmail.com
Wed Mar 7 16:43:23 EST 2007
I'll take a stab, although I'm not officially a lawyer yet, so...
On 3/7/07, Konstantinos Stylianou <stiliamail at yahoo.gr> wrote:
> After having done some research, there seem to be two points still
> remaining unanswered. The first one relates to the validity of the CC
> licenses with regard to para 204 of the US Copyright Law, which mandates
> that an IP license should be made in writing. Since a CC license is never in
> writing (eg. no electronic signatures are involved), does this mean that
> they are invalid?
17 USC 204 covers transfers of copyright ownership, not all licensing
arrangements. CC licenses do not fall under this because, among other
things, the licensor retains ownership of the underlying copyright.
I.e., CC licenses give "permission" not "ownership."
> My second point has to do with the nature of the CC licenses and in
> particular whether the CC licenses are a form of a web-wrap license, which
> have been deemed unenforceable by numerous US Court judgements like
> Ticketmaster Corp. v. Tickets.com, Inc. U.S. Dist. (C.D. Ca., 2000),
> Pollstar v. Gigmania, 170 F.Supp 2d 980, Specht v. Netscape Communications
> Corp., 150 F.Supp 2d 595. Since the CC licenses have not been challenged in
> US Courts their enforceability under US law is still unclear. Though a dutch
> court upheld a CC license, it must be noted that the dutch court completely
> disregarded the issue of the CC licenses' nature.
I'm not as sure about this, but my gut says that because the result of
an unenforceable license is copyright infringement by the licensee
(absent fair use or other defenses which make the license moot in any
case), the licensee is usually in the position of arguing that the
terms are enforceable. This is the opposite of the web-wrap cases
where the end user is the one arguing that the contract terms are
unenforceable. A CC licensor might argue that the terms are
unenforceable (because they change their mind after licensing?), but
the web-wrap/adhesion/notice arguments don't apply nearly as well
because the CC licensor is the one making the initial licensing
decisions. There may be room for a new argument - that the CC
licensor is not fully aware of the terms of the CC license she is
choosing for her work - but that seems like a stretch.
Hope this helps,
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