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Computer Law

Uncommonly Creative Legal Website
February 2003

Bill Wood is an Assistant City Attorney, in the San Antonio City Attorney's Office. He practices real estate and technology law for the city .

I admit it, we lawyers tend to be resistant to change. We rely on the past. We are trained to compare the present to the past. In our profession we provide advice to clients based upon reported court decisions which deal with similar fact situations. There is even a Latin name for all of this. “Stare decisis” is the fancy legal term for our system that builds upon the results of previous cases.

That is why it is so refreshing when I see a truly innovative use of the Web by a foundation associated with the Stanford Law School and one of its prominent professors, Larry Lessig. What makes the Creative Commons Website so different? There are several unique aspects. Surf to creativecommons and follow along. Now, some of you may recognize his name as the lawyer that argued the Eldridge v. Ashcroft case before the US Supreme Court. That is the case that is challenging the Fairness in Music Licensing Act of 1998, which is better known as the Sonny Bono Copyright Term Extension Act. That law extended the term of existing copyright protections by about twenty years. A chief point of contest is that Congress went beyond the intent of the drafters of the Constitution. The first copyright protections only lasted for fourteen years and provided for the possibility of one extension for another fourteen years. By comparison, after adoption of the most recent extension, a copyright may easily last for the remainder of the author’s life plus seventy years..

First, its whole reason for being is to promote the availability of information on the Internet. It encourages authors and artists to make their material available for licensing. No big deal you say. Did I mention that it provides a way to draft your own license for free? Did you notice that it also encourages you to make the material available for free?

The following is taken from a statement of its mission.

Our aim is not only to increase the sum of raw source material online, but also to make access to that material cheaper and easier. To this end, we have also developed metadata that can be used to associate creative works with their public domain or license status in a machine-readable way. We hope this will enable people to use . . . our search application and other online applications to find, for example, photographs that are free to use provided that the original photographer is credited, or songs that may be copied, distributed, or sampled with no restrictions whatsoever. We hope that the ease of use fostered by machine-readable licenses will further reduce barriers to creativity.

By answering three simple questions the user is presented with a pretty good license that allows use of your work on certain terms you set. The three variables are: does it require the user to give you attribution, can they make commercial use of your work and can they modify it?

I tested it and then reviewed a five page license that combined the choices I entered.
Frankly, I only have one major criticism and it is similar to one I included when I did a review of Quicken’s Family Lawyer program many months ago. The program and the resulting license ought to include a clear warning that the user should consult with a lawyer experienced in the area of practice if the user either does not understand the document in any way or if they have any doubt about its appropriateness for the user’s needs.

Other than that one technical criticism, I found the license to be complete and very professional. It is readable and should be easily understood by anyone with an interest in this area.

Creative Commons feels the ‘feel free to make derivative works based upon my work’ concept is rooted in the actual words of our Constitution. That document does not directly mention making money from protected works but rather justifies copyright protections as necessary,

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.
(Article I, Section 8, Clause 8 of the US Constitution.)

The thrust of Prof. Lessig’s argument before the Supreme Court was that Congress has added so much time to the copyrights that it has gone past what the founders meant when they wrote, “for a limited time.” Many observers were amazed when the Supreme Court agreed to hear the case because Lessig’s theory was not well received in the lower courts. However, the Supreme Court seemed much more receptive during oral arguments and it will be very interesting to read its opinion, which is expected sometime before this Court term expires in June.

While Creative Commons is working to make more information freely available on-line, other efforts are continuing to make sure we don’t copy and share their protected works. In coming months we will examine the arguments and results of several recent cases that attempt to prosecute persons who bypass anti-copying measures.