Legal, Laws, and Regs Technology

Common Law

Recovered from the Wayback Machine.

The text within this weblog posting is licensed under a
Creative Commons License. Please email author notice of re-use as a courtesy.

Denise Howell is our first non-CC lawyer taking a walk on the Creative Commons wild side — she licensed her weblog. I liked Denise’s write-up of the process, including clear details of her mental processes as she made her way through the steps in the application process. She writes:


To better convey my intent that the “work” in question is everything I create and post here unless I say otherwise, my notice reads: “Unless otherwise expressly stated, all original material of whatever nature created by Denise M. Howell and included in this weblog and any related pages, including the weblog’s archives, is licensed under a Creative Commons license.” By these revisions, I mean to advise the world that I do not purport to license things appearing here that I did not create (the base HTML template, for example), and also to preserve for myself the right to differently license, or not to license, specific items or posts on a case-by-case basis (I can’t really foresee wanting to do this, but it could happen.


In comments attached to the Bombs away! posting, Matt Haughey, creator of MetaFilter and member of the Creative Commons, asked if I was going to license my content now that some of my concerns about the technology implications had been addressed. My initial response was to say No. I did and still do think that there is too much of a rush to adopt the CC licenses without full understanding of consequences. In particular, there is a mix of technical implementation and law that we don’t fully understand, yet, associated with CC licenses.

(When technology and law meet, it’s usually to the detriment of both.)

However, Matt presented some good arguments. In particular, he wrote:


Here’s the reality of my situation and why I applied licenes to my work: over the past few years several dozen people have emailed me to request permission for reuse of my photos and essays. I had to answer each one individually, and I’d like to make that automatic for them instead. This way, more people use my creations (since they don’t have to go through the bother of asking first), my name gets out there in more places (with attribution requirements), and wild new creations are made based on my work (since I allow for derivative works). Putting something online and into the world already has lots of risk, but I don’t want to interfere at all with the legitamite reuses of my work, in fact I want to encourage it.


Good points. Enough to make me question whether I was being cautious or just plain stubborn in my refusal. My conclusion was a little bit of both.

Because many of my concerns about the legality of CC licenses were allayed by Denise’s writeup, I decided to incorporate CC licenses, gradually, throughout my web sites. starting with this weblog. However, I am doing so a lot more carefully than earlier in the week, when I blithly attached the CC license to the weblog without thinking through the consequences.

Now, I’m taking it by the numbers. License in haste, repent in court.

Bird finds religion

The first major decision I made, in this process of bringing my weblog over to the light, was that I’m not going to license the entire weblog. No offense to the general public, but my look and feel is unique to me; good or bad, this look is mine and says something about ‘me’. My branding if you will. I’m not interested in giving someone permission to copy it wholesale.

(To be honest, I don’t think there’s hordes waiting at the door to grab my site design. and if someone were to take it I probably wouldn’t complain — but I don’t want to encourage anyone to take it. )

Instead of applying a license to the weblog generally, I’m licensing specific components, bit by bit. one component at a time.

Design Components: As regards the pieces of my page design, such as the font settings used for this paragraph, there’s nothing stopping anyone from copying stylesheet settings and layout design for their own use. People don’t need a license to copy individual settings or general layout design. At least, it hasn’t stopped any of us since the second person to design a web page did so by copying and modifying the web pages created by the first.

Hopefully the lawyers in the room will correct me if I’m wrong, but I believe that this type of copying would be covered under Fair Use laws, and the CC license wouldn’t be necessary. Or, at the minimum, one wouldn’t be able to distinguish the copied material from original material at a thousand other sites.

Client-side Scripting: In reference to the Javascript in the pages, it’s already covered by a software copyright notice added to the page by Moveable Type. The copyright is owned by Ben and Mena Trott, and I’m required to keep that notice in the pages, unmodified. If I don’t Ben and Mena will hire mean, hungry lawers and come after my butt. Don’t let those nice smiles in those attractive faces, and their demonstrated interest in contributing to the community without compensation fool you — if I removed the script copyright ‘tag’ from the page, there’d probably be a lawyer in my face faster than you can say “Would you like whipped creme with that tort?”

Well, no, not really. I have a feeling that Ben and Mena would take my removal of the copyright information in stride, but I would be betraying my honor and a shared trust if I removed their legal rights from code they created, regardless of the fudgery I might use to do so. And personal honor and trust means a whole lot more to me than a lawsuit. So the notice stays, as is.

As for my own JavaScript, there is none and will never be any in my weblog. The few other places where it’s used, I’ve attached a software license notice to the code allowing full re-use with attribution. (See more on software later.)

Photos:I don’t have the people clamoring for my photos as Matt does (sniff), but I’m willing to release most of the photos for re-publication using the CC license; allowing people to publicly duplicate them for non-commercial use. The photos so released will be licensed as Attribution-NoDerivs-NonCommercial, same as Denise’s weblog. A few photos I’ll keep under the general copyright laws, but chances are if anyone wanted to use these photos I would allow them to. I would just prefer that they ask first on some of the pics.

To handle this, without individual CC licenses sprouting across my pages like fungi on a dead tree, I’m not attaching CC licenses to individual photos appearing in the weblog. Instead, I’ll attach license information to the photos in my photo gallery.

Luckily, the software that I use to manage my photos (Gallery, an open source application managed at Source Forge) allows me to add a caption for each photo. Best of all, I can embed HTML into the caption, which allows me to embed CC license graphic and link to the license in the page, as you can see demonstrated with the St. Louis Arch album.

If the photo software was not capable of accepting user-supplied HTML, I would have included the “This photo is…” text, the license type, and the URL of the license type in the caption, instead.

Flash: I don’t do Flash.

Video:I don’t do video.

Music: I don’t create music files, but will no longer include music in this weblog from other sources that is not freely released for re-duplication.

Other Images I’ll most likely create an image page that lists all the graphics at my sites that I’ll open under the CC license, and link to this from my main page. However, I will not license any of my logos, such as the burning bird logo attached to this weblog.

Server-side source code: My source code for my own personal projects is always open source, and I use Source Forge to manage my one bigger project. However, all of my source is covered under software license, and I prefer to continue using software licenses for software. The CC licenses were not initially focused on providing software licensing, primarily because there are software licenses that have been in use, successfully, for years.

As the organization states in its web site, there is a gap in available licenses for other web resource types, such as writing within a web page, images, video clips, and music. Just these will keep the Creative Commons folks busy for many, many years. There’s no need to drag the nice CC people into the murky, Darwinian world of software development.

(One glance at a posting Lawrence Lessig wrote about one specific issue related to software is enough to demonstrate the problems associated with licensing and software.)

XML Vocabularies: All my XML vocabularies (RDF/XML) are open, of course. If they weren’t I would again cover them with the appropriate software or XML-related license.

For my PostCon system, I am adding the CC license information to the RDF/XML used to describe each web resource managed by the system. However, I have modified the CCL RDF/XML to provide a better fit with my RDF/XML vocabulary. This didn’t result in a change to the underlying RDF model — just changed the RDF/XML ‘abbreviated syntax’ used. (Covered in more detail with documentation associated with project, when released.)

Writing: As for the weblog writing, well, this is a bit harder.

My article titles are public domain already, so can’t protect them, (Lawyers, is this true for in-article titles as well as external titles?). And excerpts of the post writing can be re-published under Fair Use laws. As for the text of the entire post, well that’s the thing.

I don’t want someone copying my posts in their entirety; that’s why I don’t support content-encoding of entire posts in my RSS feeds. I prefer another weblog or other site link directly to my posting rather than replicate it; and I prefer that a person visit my weblog to read a posting rather than read it in an aggregator or RSS browser.

The reason why I want people to come here, rather than read my words there, is because the sum of the parts is greater than the whole. My weblog postings are an aggregate of the writing, contained within the weblog look and feel, annotated with updates, and enhanced by communications through trackbacks, comments, and so on.

As an analogy, you can give a child a doll, but there’s a difference between just handing them a doll and handing them a doll contained in a fancy box, wrapped in pretty paper, and tied with a big fat bow with a card attached that has bits of glitter and “Love,____” written on it. Think of my weblog writing as that doll.

I know this stinginess isn’t public spirited, but what can I say? I’m a control freak.

Still, a step or two in the direction of the public good would be a beginning in my quest for self-redemption. Based on this soul searching, I’ve decided to license some of my posts (i.e. allow re-publication of entire weblog text), and leave the others under general copyright.

To allow for this mix of CC licensed posts and non-CC licensed posts, the posts covered by a license will be marked as such, including the graphic hypertexted to the license, and with the RDF/XML embedded within the post. This post shows it at the beginning, but normally the information will be at the end of the post.

If you want to completely republish the writing in a weblog post covered by the license, such as the writing in this post, you can now do so without asking my permission. Well, as long as you don’t alter the words, profit by it (the license is designated as “not for commercial use”), and attribute the writing to me.

As can be seen in the text associated with the license, this license covers the text only. Any photos included in the posting will be covered as described above.

For my other non-licensed posts, you’ll need to get my permission to re-publish or I’ll come after your butt with a mean, hungry lawyer. And I’m not nice, like the Trotts.

RSS: Adding CC licenses to individual posts is going to create a challenge in the RSS feed. For instance, if I don’t put the CC license information at the bottom of the post, it’s all that will show in the RSS feed for this post (since I only do smallish excerpts).

In addition, both RSS feeds I support, Userland RSS (RSS 2.0) and RDF/RSS (RSS 1.0) are generated from templates. These templates process every weblog posting the same. There is no way to designate one posting as licensed and one as not.

Ben Hammersly created a module for RSS 1.0 to embed CC license information for the specific resource in the feed. Now, once this is approved I can modify my RSS feed template to support this. However, this still won’t solve my problem of some posts being released under CC license; and some not.

Another approach would be to depend on the content-encoded element, which I had removed from the RSS feeds. I could allow this back in the feed, and my posting in its entirety would be included in the feed. This should then pass along not only the writing, but the HTML of the posting, including the license.

However, there’s a problem with this — I know of at least one online site, News is Free, that publishes the content from the content-encded element regardless of copyright. If this site, and others like it, don’t check to see that a specific item is covered by the CC license, all of my posts will be published in their entirety. And this includes photos embedded in the posting, which I already covered above (photos in posting are not released CC).

This is one of those tricky things that happens when you start mixing tech and law.

However, there is a short-term solution. Duplicating the CC license information to the feed isn’t required. If a site wants to publish the entire posting, they’ll need to come to the source of the writing, the weblog posting itself. There, they’ll be able to see if the posting is open under CC license or not. Since I only publish excerpts to the RSS feeds, they’ll have to get the entire posting from my weblog pages, anyway.

Until the tools that generate RSS, such as Moveable type, and the tools that re-publish RSS, such as News is Free, incorporate CC license information in their processing, the approach I’ll take for now is to not include CC license information in the feed — a compromise that should work for the nonce.

(Ben Hammersley also nominated me for admittance to the RSS working group. The man’s a brave, brave soul and I thank him. I don’t expect to become part of the group, but it was nice of Ben.)


There you have it: Burningbird becomes enlightened. However, as you’ve seen, I’ve exercised my enlightment cautiously, treating the CC licenses as they should be treated — as binding, legal contracts between me and the people who would re-use my material.

12/23 Update:

Jonathon Delacour steps into the CCL arena with a professional artist’s eye:


What recourse do I have if one or more of these photographs is used in a context of which I disapprove? For example, on a poster advocating euthanasia for terminally-ill infants or in a right-to-life brochure—both published by non-profit organizations.

What’s to stop someone overlaying racist captions on photographs I took in the New Guinea highlands twenty-seven years ago, should I choose to release them under an Attribution-NonCommercial License? Or to include the photographs in a white-supremacist collage? How am I to respond when the pictures I made at a Jewish funeral appear as illustrations in an anti-Semitic diatribe? Not only has my artistic intent been subverted, but I have also allowed myself to be portrayed as a racist or an anti-Semite.


Removing the rose colored glasses indeed. Being aware that CC licenses are ‘permanent’ and cannot be revoked is sobering.

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