Development of Creative Commons licenses

[James Grimmelmann <james AT grimmelmann.net>]

drew Roberts wrote:
> > > In a download situation, who makes the copy? The person with the web
> > > server, or the person with the web browser? Both?
> > This is a subject of some dispute as to the the person with the web
> > server.  (The public distribution right is more clearly implicated than
> > the copying right).  U.S. judicial authority generally holds that the
> > person with the web browser creates a copy.
>
> So, how would it be a copyright violation on the pard of the downloader and 
> especially if the person with the web server is the copyright holder? Is the 
> license enough to say that the downloader should have known better then to 
> ask for a copy, or would copyright holder need to put some clich through 
> button whereby the downloader would certify that they are not a for profit 
> entity?

Whether there's an implicit license to download would be determined 
under the totality of the circumstances.  Most of the time on the web, 
when there's nothing said at all about licenses but it's clear that the 
website owner is the copyright holder, there's an implicit license. 
When it's clear that the website owner is not the copyright holder, 
there isn't one.  If the CC-NC license icon or name were prominently 
displayed near the download link, that would be an ambiguous case.  I 
would guess that most courts would find that mere downloading wouldn't 
be an infringement, and that the CC license was an addition to the 
implicit license to download, not a substitute for it.  But if the web 
page clearly said that the CC license was the only license, and that 
for-profit companies shouldn't download, I would think that could well 
get rid of the implicit license.  A click-through with similar text 
would have a similar effect, but with more certainty.

Not legal advice &c.

James