Some people eat, sleep and chew gum, I do genealogy and write...

Wednesday, April 20, 2016

A Perspective on Copyright Licenses -- Creative Commons and more

In the law in the United States, copyright ownership is considered to be personal property, just like a car or any other item the law calls personalty or chattels. In recent developments in the law, copyright and other intangible property has been generally referred to as "intellectual property." The law that has evolved concerning intellectual property is often incorrectly referred to as "intellectual property rights." Unfortunately, the term "rights" has been vastly over-used and over-extended in our system of law to the point that nearly every claim of any interest is also claimed to be a "right." 

The concept of a copyright is usually considered to date back to the British Statute of Anne in 1710. In America, the idea of a copyright was based on a series of laws that were passed prior to the establishment of the United States and the idea of a copyright was incorporated ultimately into the United States Constitution, Article 1, Section 8, Clause 8 which states,
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
As you can see the term "copyright" was not used in the Constitution's definition. Today, intellectual property law incorporates the general areas of copyright, trademarks, patents and trade secrets.  The World Intellectual Property Organization defines intellectual property (IP) as follows:
Intellectual property refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce.
In the legal community intellectual property law represents a very narrow and poorly defined "specialty." Subsequently there are relatively few lawyers who support themselves solely from handling "intellectual property" cases. The most defined area of the intellectual property is patent law and there are a few patent law attorneys in every state, but most are concentrated in the Washington, D. C. area. From an online search it appears that there might be a dozen or so law firms in Utah that advertise that they handle intellectual property cases.

In my own experience I was one of only a few attorneys I knew about personally that had actually litigated copyright issues. Most of the online discussion about "copyright" is conducted by people who have never represented clients in a copyright case from start to finish. I have always wanted to ask those who are writing about copyright in the genealogical community if they have ever been personally involved in a copyright case other than one of their own making. It is interesting how many people have an opinion about copyright law with so little background in the subject.

Since copyright is a legally defined, personal property interest, it is subject to modification by contract. In other words, you can buy, sell, rent, license and otherwise limit your copyright claim in any way that is allowed by law. The ability to contract away all or part of your copyright is referred to in the law as a right of alienation.

You can also lose your copyright interest by ignoring its existence. Ultimately, the only way to protect your copyright interest in the United States is to file a lawsuit in the Federal District Court system. As witnessed by the recent case of the Authors Guild, Inc. v. Google, Inc., copyright litigation can be immensely time consuming and expensive. Just for your interest, here is the complete heading of the Google case.
THE AUTHORS GUILD, BETTY MILES, JIM BOUTON, JOSEPH GOULDEN, individually and on behalf of all others similarly situated, Plaintiff-Appellants, HERBERT MITGANG, DANIEL HOFFMAN, individually and on behalf of all others similarly situated, PAUL DICKSON, THE MCGRAW-HILL COMPANIES, INC., PEARSON EDUCATION, INC., SIMON & SCHUSTER, INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC., CANADIAN STANDARD ASSOCIATION, JOHN WILEY & SONS, INC., individually and on behalf of all others similarly situated, Plaintiffs, v. GOOGLE, INC., Defendant-Appellee. 
Here is a list of the attorneys in the case:
For Plaintiff-Appellants: PAUL M. SMITH, JENNER & BLOCK LLP, WASHINGTON, DC (Edward H. Rosenthal, Jeremy S. Goldman, Anna Kadyshevich, Andrew D. Jacobs, Frankfurt Kurnit Klein & Selz PC, New York, NY on the brief) 
For Defendant-Appellee: SETH P. WAXMAN, WILMER CUTLER PICKERING HALE AND DORR LLP, WASHINGTON, D.C. (Louis R. Cohen, Daniel P. Kearney, Jr., Weili J. Shaw, Wilmer Cutler Pickering Hale and Dorr LLP, Washington D.C & Daralyn J. Durie, Joseph C. Gratz, Durie Tangri LLP, San Francisco, CA on the brief) 
 Since copyright is a property interest and since it can be alienated in part or in whole, several organized schemes have been developed to regulate the granting of limited copyright interests. The most well-known and used of these schemes is the Creative Commons. This international organization has developed a highly useful and workable way to license copyright interests. From the lack of discussion on this topic, I assume very few of the genealogists who have concerns about their "copyright interests" have studied the alternatives. I seldom see genealogical works licensed under the Creative Commons. I strongly suggest that anyone with a concern about copyright become very familiar with the Creative Commons. Personally, I am very careful to observe the conditions of any of the licenses.

The other well-known licensing system is the GNU Operating System sponsored by the Free Software Foundation. Since the GNU Operating System applies primarily to software, it is not usually mentioned in genealogical circles.

I am not going to try to explain the limitations or advantages of either system. If you really want to know about copyright, you need to understand the options for licensing. By the way, if you go to an "intellectual property attorney" for advice, you just might want to ask him or her to explain the Creative Commons, if they don't seem to know what you are asking about, you might reconsider their qualifications. Of course, I am not presently, nor do I want to be, a practicing attorney in any state of the United States and everything in this post is my opinion and should not be construed as legal advice for any purpose and you are most welcome to correct or disagree with me anytime. I am perfectly accustomed to being told I am wrong.


  1. I use Creative Commons materials in presenting my genealogical findings on my blog, in video, and in self-published and distributed works all the time. My husband has released many software projects under open source licensing. I had never thought about actually applying Creative Commons licensing to my works, though. Good food for thought!

  2. "You can also lose your copyright interest by ignoring its existence."

    Erm oh dear. You do NOT lose your copyright interest by ignoring its existence any more than you lose any other type of property or contract interest by ignoring its existence. Now TRADEMARK on the other hand you DO lose by not defending it.

    You may well be estopped from pursuing a copyright claim, you may well run into a defence of laches when pursuing a copyright claim. Neither is unique to copyright of course. The one gotcha that is particular to copyright in the US is the requirement to register a copyright to get damages. That is a US-only requirement and in many, many other jurisdictions there is absolutely no requirement to register a copyright to get damages. However if you do not defend a trademark you will indeed lose it to genericide or simple neglect.

    I would not claim to know anywhere near as much about copyright law or other intellectual property law as a practicing intellectual property lawyer. However I suspect that I know a good deal more about it than the average layman.

    What really gets on my goat with respect to this area of the law is the language of the vested interests. The thing that immediately screams to me that someone who purports to know about the subject has a severe bias is when the term "theft" is used in connection with copyright infringement. At least in English law theft is defined by statute as follows, "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly." When it comes to copyright the only way that theft applies is if someone permanently deprives the holder of the copyright of it. Making a copy is not permanently depriving the holder of the copyright of that copyright and is thus not theft. To steal a copyright would involve somehow gaining control over the use and licencing of the copyright as a whole whilst denying that to the true owner: possible but difficult to do with intangible property. That said illegal copyright infringement is a serious problem and what it can quite correctly be called is fraud because the copyright-holder is in many cases being defrauded out of licence fee income that would quite correctly be theirs. I'm only glad that genealogy does not suffer from copyright infringement to anything like the same extent that the music industry and film industry do. We don't want spurious DMCA notices squashing genealogy blogs. By the same token we don't want what cases of copyright infringement that there are (such as mass blog-reposting sites) to go unpunished.

    All-in-all a little-known and little-understood area of law that can catch a great many people out.

    1. If you allow your work to be copied multiple times, such as on Facebook or whatever, then you run the risk that you may lose the copyright protection over time. I fully realize that this is listed as one of the common fallacies of copyright law, but it is a real possibility. Also see from the US Copyright Office regarding registration and the effect of failing to register. I agree about calling a copyright violation a theft, it is not. However, there is a provision for criminal copyright infringement. Copyright infringement is a crime if the defendant infringed willfully and
      did so either (1) for commercial advantage or private financial gain, (2) by
      reproducing or distributing one or more infringing copies of works with a
      total retail value of over $1,000 over a 180-day period, or (3) by distributing
      a “work being prepared for commercial distribution” by making it available
      on a publicly-accessible computer network. 17 U.S.C. § 506(a)(1).Criminal
      copyright infringement is punishable as a felony if the criminal conduct
      described above involved reproduction or distribution of at least ten copies of
      copyrighted works worth more than $2,500 in a 180-day period, or involved
      distribution of a “work being prepared for commercial distribution” over a
      publicly-accessible computer network. See id.; 18 U.S.C. § 2319. See

      You might also note that Copyright infringement has a three-year statute of limitations indicating that “No civil action shall be maintained under the [Act] unless it is commenced within three years after the claim accrued.” 17 U.S.C. §507(b).

      In addition, you are correct, laches may also apply. Failure to register before the infringement occurs will also bar statutory damages and an award of attorneys fees, making the claim for actual damages untenable. So I respectfully disagree with your first conclusion. Technically, you do not lose your interest per se, but losing the ability to enforce your interest is essentially the same thing.

    2. The US has higher hurdles to jump over to enforce a copyright claim such as the 3 year limitation and the requirement to register to get damages. However in turn the US also has lower hurdles to jump over to enforce a copyright claim when it comes to the DMCA. Just as there are mass-abuses of involving copyright infringement there are almost as many mass-abuses involving the DMCA. The takedown provisions themselves are probably necessary, but the lack of will to enforce the penalties for fraudulent takedown notices and indeed the comparative lack of teeth of those penalty provisions are a serious problem. There are many, many media companies that deserve a legal kick-in-the-teeth due to the number of fraudulent DMCA takedown notices they have issued.

      Isn't the legal system wonderful!

    3. This comment has been removed by the author.

    4. Oops, I had to delete my comment and reenter it. It sounds like you have some experience in this area. I am fully aware of fraudulent take down notices. I was involved in a Federal District Court case where the Plaintiff was fraudulently using the court system to bully a person out of business to enforce and invalid copyright claim. The Defendant did not have the resources to fight the large corporation and so went out of business.

    5. Not a bit of personal experience of copyright litigation at all. Just someone who knows rather more than the average layman about intellectual property law. I did some research into it when dealing with UK Crown copyright stuff on Wikipedia. I'm the person who did the leg-work when it comes to the PD-UKGov template on Wikipedia and it is my email to a Wikipedia mailing list that is cited on that template.

      Since then I've kept somewhat up to date with developments in the field. The 1709 Blog is very useful for that sort of thing.

      The only thing I've ever done which might be considered "lawyer-like" was to compose a scary-sounding letter to a parking enforcement company who had been attempting to charge my sister a substantial amount of money for a supposed parking rules infringement where she lived: in actuality the property management company had screwed up the parking permit issuing process if I recall correctly.

      A few references to specific statutes and a couple of pertinent case citations plus dressing it up with a bit of legalese made it sound sufficiently like a lawyer had written it that they backed off very quickly. No threats of action, just making clear that there was someone around who knew a sufficient amount about the law to cause them trouble had they pursued the matter (naturally had it actually gone further I would have said for her to get actual proper legal advice). I can only surmise that they decided to go after an easier target. After all private parking enforcement firms like that rely on contract law to enforce their penalty provisions and contract case law is replete with cases where penalty- or fine-like clauses in contracts have been struck down as unenforceable. Little matters like having to prove actual losses to get damages mean that if someone is prepared to contest the matter in the small claims court (up to £5,000 is considered small claims in English law) then the parking enforcement firm is very likely to come away with egg on their faces. Since then the law has been tightened further as well to bias things more against such firms.

  3. James, thanks for this... I have included this post in Interesting Blogs at