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cc-licenses - Re: License Question (Fair use and ownership)

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Subject: Development of Creative Commons licenses

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  • From: Evan Prodromou <evan AT>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT>
  • Subject: Re: License Question (Fair use and ownership)
  • Date: Tue, 02 Dec 2003 10:26:49 -0500

>>>>> "RM" == Rob Myers <robmyers AT> writes:

RM> IANAL, so my question is: if I include a reference to a
RM> third-party trademark or a quote from a third-party article in
RM> a work I put under a CC license, do I need a disclaimer [...]?

So, Rob: I'm not a lawyer, either. I'm actually very dumb about very
many things, intellectual property law being near the top of that
list, and it would be foolish in the extreme to take any advice from
me seriously on any topic whatsoever. If you need legal advice, check
with your local Bar Association's referral service.

Now that *my* IANAL ass is covered: including trademarks and including
copyrighted text are two very different beasts. For trademarks, my
understanding is that you don't need to include trademark disclaimers
if you don't want to. In fact, the GNU project expressly tells its
contributors *not* to include trademark disclaimers:

...which makes sense to me.

As for including quotes: this is covered by the fair use defense,
which is a huge pain in the ass. Fair use is a _defense_: if you have
to invoke fair use, you're already in trouble. There's a very nice
elaboration on fair use on the Stanford Fair Use and Copyright Web

My understanding is that certain inclusion of copyrighted information
in other works is defensible for a few reasons:

* Its length (is the entirety of the copyrighted work
included? Is the including work entirely made up of
pieces of the included work?)
* The purpose of inclusion (for commentary or parody)
* Who you are (libraries, education, etc.)
* The effect of the copying on the creator

My personal feeling is that blog entries that look like this:

I read an interesting thing in the New York Times today:

[quote 90% of article]

Funny, huh?

...probably wouldn't be defensible. I'm not saying they're wrong or
bad, just that if for some reason they became subject to a copyright
lawsuit -- Heaven forfend -- it'd be a tough sell.

Now, to the CC angle: there's a nifty little warranty clause in CC
licenses where you tell people that the work under discussion is
pretty much legally clear as-is for them to use. In other words, I
don't think you can include copyrighted text that's fair-use
defensible *just because of who you are*, because then people who
aren't you can't re-use it.

But, let's say that your included text is fair for _anyone_ to use, in
the form it's in. Like, you've got a Weblog entry with commentary,
short quote that's not the entirety of the entry, etc. That should be

Note that you're _not_ warrantying that if the person takes out the
quote, and ignores all your text, and makes a big poster out of the
quote to sell in head shops and record stores, that that's OK. You
can't control, and aren't responsible for, the content of derived
works, just the content of the one *you* make. Just the same as if you
wrote "Dick Cheney is the vice president", and I made a derived work
that changed it to, "Dick Cheney is an ostrich-fucker", you're not
warrantying that that's not defamation of character.

All this said, I'd say as rules of thumb it'd be good to:

0) Think twice about quoting anything. Do you really need to?

1) Keep quotes less than 50% of your blog entry. If you don't have
any commentary to make, don't quote.

2) Source everything. If you don't have a source ("someone
forwarded me an email today with this delicious joke: [...]"),
don't include the quote.

Overall, it's probably not that big a deal, but... if we didn't care
about legal niceties, we probably wouldn't use CC licenses, would we?


Evan Prodromou <evan AT>
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