Are the Creative Commons Licences Valid?

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As readers of this blog will doubtless know, Richard Stallman's great stroke of genius at the founding of the GNU project was to use copyright when crafting the GNU GPL licence but in such a way that it undermined the restrictive monopoly copyright usually imposes on users, and required people to share instead.

That so-called copyleft approach has allowed a vast and thriving ecosystem to arise, but one that depends critically on the validity of the GNU GPL. If the GPL were shown to be unenforceable, then its terms would be void, and free software would have some problems. For that reason, every time somebody is threatened with legal action for allegedly violating the GPL, lawyers' hearts beat a little faster at the prospect of a definitive ruling on whether it is valid or not.

(Added: There have been such cases in Germany and Spain, but people are still waiting for one in the US: as everyone knows, foreign stuff doesn't really count...)

But software is not the only domain where Stallman's cunning copyright trick is employed to provide more rights than usual for users. Perhaps the best-known example is the family of Creative Commons licences. These were directly inspired by Stallman's work, so it's no surprise that there are many similarities in the way they function.

Nor, indeed, is it any surprise that people are eagerly awaiting a similar ruling on whether they are enforceable. Hence the particular interest in a recent case that involves a Creative Commons licence:

A lawsuit filed this past week in the Northern District of Illinois includes a claim that the defendant violated the terms of a Creative Commons license covering the plaintiff’s copyrighted works. GateHouse Media publishes a slew of local newspapers, including the Rockford Register Star in Rockford, Illinois. The Register Star provides premium online content to its subscribers, and makes that content available under a Creative Commons Attribution-NonCommercial-NoDerivs license.

Eric Steuer, Creative Director, Creative Commons kindly emailed me the following comment on the case:

While the CC license is somewhat peripheral in the new GateHouse case -- since on its face this looks to be a pretty standard dispute about copyright infringement -- the case is important and of interest to Creative Commons, for the simple reason there have hardly been any cases at all that involve our licenses. I'd be remiss if I didn't make the point here that we think that it's a very good thing that there have been so few cases that directly involve CC licenses – this indicates that the terms of our licenses are clear and that people tend not to violate them.

The last point is important, because it's true of the GPL too. The paucity of court cases is not because people think the licences are irrelevant or obviously invalid, but the opposite: because the received view is clearly that both the GPL and CC licences are so well written and so strong that it would be foolish to challenge them in them court.

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