• Blog Copyright Considerations

    This post is jointly authored by Austin Frakt, and Ian Crosby.

    As is true of most blogs, the posts appearing here are creative works. A few have been written with considerable effort over several hours. Some of those written in only minutes have summarized years of scholarly work. In all instances they are written with no guarantee of direct or immediate compensation. The reward is largely the process and the product.

    It is therefore painful when the product is used in a manner inconsistent with the author’s vision and, moreover, in violation of copyright law. However to take full advantage of the law’s provisions one must assert one’s rights and define allowed reuse of posts, to the extent permitted.

    Enter Creative Commons (CC), an organization providing a variety of free customizable licenses well suited for IT and web applications, like blogs. To invoke a CC license, one downloads the appropriate icon and language and posts them on one’s blog (see the footer of any page of this blog and additional details in the “Reuse” section on the Site Policies page). There are four main conditions that may be imposed through CC licenses:

    • Attribution — you may permit reuse of your posts with attribution as you specify (e.g. must cite URL, must cite author).
    • Share Alike — you may permit reuse of your posts only if done so under the same conditions you specify in your license (e.g. if you specify only non-commercial use so must the user of your work).
    • Commercial Use — you restrict use for non-commercial purposes only.
    • Derivatives — you may require only verbatim use of your work, precluding derivatives.

    The effect of choosing among these standardized licensing conditions is to make the terms of use for creative works more (or less) like those that have developed around software code in the open source community.  The aspiration of the architects of creative commons licensing is that these standardized modules of legal “code” will facilitate the same “bazaar” model of creative collaboration and remixing that open source has brought to software.

    In considering which CC license seemed appropriate for this blog (i.e. which of the above four conditions to impose on reuse), your host considered four important objectives, not all of which, it turns out, can be achieved through copyright:

    1. Control of attribution (requiring citation of the URL and author).
    2. Reuse of excerpts only, not full posts (no wholesale appropriation).
    3. Direct quotes only (no putting words in author’s mouth).
    4. No restriction on commercial use (it is OK if other blogs/news outlets make money by quoting posts).

    The CC license selected for this blog (attribution-no derivative works) directly achieves objectives numbers 1 and 4. Number 2 is achieved irrespective of the license under the doctrine of  “fair use.”  Though the amount that can be taken as fair use is not fixed, but depends on the context of the use, it can rarely if ever be all or even most of a work. Number 3, however, is not a condition that can be enforced through restrictions on copyright. Copyright allows an author to control copying and creation of derivative works subject to the fair use doctrine. But paraphrasing is not making a copy, and even if it amounts to a derivative work, it will likely be fair use in any event. However, mischaracterizing words can amount to defamation, so authors are not entirely without rights in this regard.

    Beyond what one can restrict lies the question of what one should restrict. Is a complete prohibition on making derivative works consistent with the ethos and objectives of blogging? To answer, one must first consider what a derivative work is. Though it can get tricky at the margins, a derivative work is in essence anything that starts with a work and changes it sufficiently that it becomes a new and distinct work. (A work with trivial changes would still be considered a copy.) An example of a derivative work might be a new version of a piece of software with some bugs corrected and new routines added. Or it might be a legal brief originally created for one client rewritten to address a similar issue in a different case.

    The folkways concerning derivative works vary greatly from field to field. In open source software, allowing derivative works with attribution is the norm. In law, it is common and perfectly acceptable to borrow and rework whole sections of another lawyer’s brief without permission or attribution. In academia, this would be considered plagiarism.

    In blogging, it appears that quotation (fair use copying less than a whole work) with attribution (usually a link through) is the norm. We aren’t aware of an example of derivative works in blogging (reworking someone else’s blog post) that would be fair use, and it does not appear to be either a common or accepted practice among bloggers.

    What then, is the rationale for assertion of a “no-derivatives” right on this blog, and indeed on any? Even though we cannot imagine a derivative of a blog post that would also be fair use, that does not preclude the possibility that one might be imagined (correctly or not) by someone else. The details of the invocation of the CC license described on the Site Policies page include, “Permission for use in any other manner must be obtained from Austin Frakt prior to use.” This language together with the “no-derivatives” right may be enough to dissuade a potential reuse that this blog’s host would find objectionable, apart from its legal enforceability.

    In sum, the “attribution-no derivative works” license terms seem consistent with blogging’s reputation-based economy and appear to achieve your host’s objectives to the greatest extent possible through copyright.

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