Why To NOT Write Your Own License

Earlier today I ran across a new attempt at creating a blog license entitled “WE ARE COPYRIGHTED BLOGS” that is, quite frankly, error-filled and very worrisome. I attempted to contact the author of the license but was unable to locate any information about them.

This license displays some of the many hazards that people face when they try to craft their own copyright licenses. This is why, whenever possible, you should either use an “All Rights Reserved” license and grant permissions on a case-by-case basis, use a Creative Commons or other license that has been vetted and written by professionals.

Bear in mind that, while I am very familiar with copyright law, I am not an attorney. Also, since it seems likely that the author(s) of this license is not a native English speaker, I am not going to look at grammar, spelling or other language-related issues even though they could, concievably, have an impact on the legal aspect of the license.

My goal in this is not to make fun of the author of this license or discourage others form being active in this field, but rather to caution people against using this license and/or creating their own.

12 Problems

Without further ado, here are just some of the more worrisome issues I found with the license as I went through it.

It’s understood that duplicate without any reference or permitted is against the Digital Millennium Copyright Act 1998 (DMCA)

The DMCA does not actually say that copying is a violation of the law. It’s a violation of copyright law itself and has been since at least the passing of the Copyright Act of 1976. Many people feel that the DMCA is what made digital copying illegal, but the DMCA only made circumvention of DRM and the removal of Copyright Management Information illegal. It also provided safe harbor to Web hosts and a mechanism for rights holders to demand removal of infringing works from hosts and search engines.

Before you do anything to make others people hard work yours,just go through the Copyright and Fair Use Guide to avoid making a costly mistake!

Though this seems straightforward enough, the word “Costly” links to an excellent article by Lorelle VanFossen on the Blog Herald about the Fair Syndication Consortium, which I have also written about here.

The problem is that the consortium is not actually collecting revenue at this time, it is in the early stages of negotiation. Thus, plagiarists have nothing to fear from the consortium at this time and, even if the consortium was collecting revenue, only members of the consortium would be eligible for anything. As such, this does not apply to any non-members, something the license doesn’t make clear.

Furthermore, the consortium is just taking a portion of revenue from those that reuse content. Those reusing content will still get at least some of the advertising revenue.

You better don’t Let me catch you if you’re copy my contents.If i found one,I SWEAR I will try my best to get your site banned by search engines, hosting companies and advertising partners e.g.Adsense*.

First off, there is no mention of using the DMCA to file with the Web host, which would actually be the most effective tactic. Second, sites that have a DMCA filed against them with Google are not banned, especially for just one or two infringements. The specific pages are removed, but not the whole site. The same holds true for advertising partners. Serious spammers and infringers often do get banned from both, but one or two cases are usually not enough.

No fxcking joke!Do NOT copy if you fail to follow the terms and conditions of our blogs.

This is simply unprofessional and I would not encourage anyone to have this kind of language in any license they use if they want it taken seriously. This is technically a grammar issue, but this goes well beyond a simple misunderstanding about the nature of the English language. This could hinder the license’s effectiveness by causing people to not treat it as a valid and serious agreement.

Copyright and Fair Use Guide:

The guide below this line does not discuss fair use at all. Furthermore, you can not define fair use in a license, even if you tried. Fair use is defined by the law, which created the four factor test, and the judges that interpret the rules. Creative Commons deals with this issue by simply saying that the license does not affect your fair use/fair dealing rights, which makes sense.

Attribution:Credit the Source.You need to clearly mention where the content was taken from.
Link Back :You need to put a hyperlink to link back the post from which you derived the excerpt.

Ok, now we’re to the meat of the license. We’re going to have to take these a few items at a time.

First, these two items are, effectively, the same thing. A link back would be a part of an attribution, not a separate clause. Creative Commons manages to do this quite well. Second, the link back requirement only makes sense until I try to reuse the content on something other than a Web site. What happens if I print it out or read it in a radio report? The license doesn’t explain that.

There are many uses that could now never be legal even if that was not the intent.

Limitation Republishing:You cannot republish all the post or full page of the post unless you get the permission first.

So how much can I publish? The entire post less one word? Half? A quarter? A few sentences? Fifty words? Too little and the license becomes pointless as fair use would protect my use anyway. Without clear guidelines on how much can be used, this requirement makes the license meaningless as I will never really know if I am on the right or wrong side of it with my use.

At that point, it’s better to take your chances with fair use as at least that has tons of case law and a four-factor test.

Noncommercial Use – You cannot use our content or sell it for commercial purposes.

Once again, what is non-commercial use? This is a criticism commonly hurled at Creative Commons too, but I need an idea of what you define commercial. I don’t run ads on my site but it advertises my consulting services. Is that commercial? What if I just run ads to pay the hosting bills?

This is an especially touchy area of the law to begin with but this license doesn’t even attempt to address it.

No Derivative Works -You may not alter, transform, or build upon this work.

This seems simple enough, but fair use does allow me to transform and build upon a work in a limited capacity for certain purposes, which is what I am doing right now. Normally this wouldn’t be an issue but, since the license claims this is both a copyright and fair use guide, which in and of itself is redundant as fair use is part of copyright, it should be mentioned.

No RSS Feed Republishing – You cannot republish our full text RSS feed articles on any site without prior permission.

What if my site provides a partial RSS feed, can someone use that? It isn’t clear from this license. Furthermore, it shouldn’t be necessary as RSS feed should be covered by the rest of the license without a specific mention. All this does is raise new questions.

By using Copyscape it is very easy to find out who is copied the contents.The action will be taken against copycat.

This is more of a technical point than it is a legal one, but since this license is targeted at blogs that, presumably, have RSS feeds, FairShare would probably be better than Copyscape for this purpose, or at least easier to use.

Don’t assume,you’re mostly likely violating the law.A warning will give to take down copyrighted material within a certain number of days. After that, someone starts full legal action.

There’s a lot wrong here. But the main legal issue is that “full legal action” would imply a lawsuit will be filed. That would not only be impractical in most cases but outright impossible unless the work has been registered with the Copyright Office BEFORE the suit is filed. This isn’t explained in the license.

Other Issues

In addition to the 12 issues above, here are a few other odds and ends that couldn’t be placed with any specific quote:

  1. Copyright Deposit: The site links to a site called “Copyright Deposit” that charges $15 “per copyright” and claims to provide”COPYRIGHT REGISTRATION AND DEPOSIT OF MATERIAL 163 countries, including U.K, U.S.A, India and Canada”. This site does NOT register with the U.S. Copyright Office and does not provide any special legal protections other than, possibly, non-repudiation. You can find much less non-repudiation services easily. I would not recommend using this service.
  2. International Validity: Though I’ve been analyzing the license under U.S. copyright law, as it was intended, the license itself does not cover any international issues and has no portability. This could render it meaningless in other countries.
  3. Termination: There’s no indication when this license ends or under what conditions it can be revoked, if any. As such, I have no idea if this license can be revoked at any time or if I can change it. Bad for both the user and the person licensing their content.
  4. Unnecessary: Outside of the (largely meaningless) requirement that one does not use the whole of the work, the license is almost the same as the Creative Commons BY-NC-ND license, which is much more thorough and was written by professionals. It is also widely recognized and easily understood (for the most part) by anyone wanting to use your content.

The bottom line is that there is no reason to use this license and doing so might be very dangerous, leaving many uses of your content in gray areas, possibly even allowing uses you didn’t intend, and it would be equally risky for anyone trying to use your work.

Bottom Line

Though I’m always happy to see people getting involved in this issue and working hard to help others protect their content, writing a new copyright license is NOT the way to do it. Though the license does link to some pretty good resources, including a few more articles by Lorelle and a few others on Problotter, the license is dangerous.

Simply put, if you are not an attorney and are not comfortable actually writing a license, you should not be doing so. I include myself in that statement.

For reference compare the license linked above to the full legal text of the most similar Creative Commons License. The difference is astounding.

Even with just a very quick surface check I was able to find 15 16 potential issues with the license and this doesn’t even go into many of the aspects every CC license does. Imagine, for a moment, if this license had to deal with royalties on music recordings or mechanical rights.

If you’re going to license your content, do so professionally. It is safer and easier than trying to create your own license. It is that simple.

26 Responses to Why To NOT Write Your Own License

  1. AV eddy says:

    It's great they want to help others with copyright issues, but I have an issue with something claiming to have any kind of legal ramifications that doesn't even use correct English grammar. I agree that writing something as complex and important as a license requires a professional.

  2. Wow, that complete, I agree ..

  3. Maria says:

    Slow news day?I'm having trouble understanding why you took this amateurish attempt at a copyright notice so seriously. Not only is it written in dismal English with foul language and childish threats, but it's full of errors and difficult to understand.If you wanted to find a good example of a bad copyright notice, you nailed it. It just doesn't seem worth dissecting to the extent that you did. Anyone who relied on it probably wouldn't understand the points you made anyway.Just my two cents. Take them in the spirit offered…you know I'm a fan of yours.

  4. Maria says:

    And why would anyone link to that horrible page anyway when they could just as easily link to a Creative Commons license page?

  5. [...] Bailey at PlagiarismToday has a great post dissecting the various issues raised by the bizarre “WE ARE COPYRIGHTED BLOGS” license he recently came across. Jonathan [...]

  6. [...] Bailey at PlagiarismToday has a great post dissecting the various issues raised by the bizarre “WE ARE COPYRIGHTED BLOGS” license he recently came across. Jonathan [...]

  7. “Why To NOT Write Your Own License” http://tinyurl.com/n6ja8z #copyright

  8. Jonathan says:

    Well,I am a lawyer, and as a part of my services i draft copyright licenses. This license has a few issues but the biggest one is malpractice. I mean, think about what would happen if this license comes to court. In that case, the judge will have to interpret the meaning and intention of the "parties" and will quite possibly rule that it violates the right for fair use and therefore is (at least partially) invalid. The drafter had a better standing when he stayed with (c) All Rights Reserved. Now, let's see how much damages this license can make.[Decent Disclosure : I consult CC-Israel with the fair use project and other matters]

  9. “Why To NOT Write Your Own License” http://tinyurl.com/n6ja8z #copyright

  10. I'm hoping that the author(s) of this license will get the hint and do exactly that…

  11. Actually, I did take it as a joke at first. The first things I did with the link when I ran across it was post it to CopyrightFail.com and shoot it out over Twitter to much guffaws. But someone reminded me, quite correctly, that people actually use those licenses and ones like it. You are right, it didn't warrant the extensive analysis that I did. It doesn't even warren the non-existent paper it is written on, but the legal issues it creates are actually on par with others, similar licenses, even those that are better written.Truth be told, I'd been wanting to write an article on this topic for some time but this finally brought it to a head. I guess, more than anything, it was a "straw that broke the camel's back" moment.I do understand though and agree. Still, I felt it had to be done. At least one person was using it, even if it was just the author…

  12. I don't know either but, we have to remember this is the Blogspot crowd we're talking about. Though there are many good blogs hosted there, there seems to be a subculture there that will link to just about anything. It wouldn't be the ugliest page I'd seen along these lines. My eyes hurt thinking about others I've seen.

  13. > This license has a few issues but the biggest one is malpractice.I think that says it all actually. The judge would have to interpret the intention of just about everything in the license and, like you said, he would have a better standing if he just stuck with an All Rights Reserved license and doled out permission on a specific case-by-case basis.This license puts both the licensee and the licensor in great danger. I wouldn't get near it even if I wanted to use the person's content.Thanks for the comment!

  14. tftorrey says:

    Excellent article. Surely regular readers of your site would not have considered using such a license anyway, but your analysis is helpful in contrasting it with things we do use and should not take for granted, like the Creative Commons licenses. I appreciate the time you spent on your careful analysis.

  15. I agree that this was probably below most of the readers on this site but still an important analysis, I felt. I seriously doubt that many of the people who read PT regularly would have taken it seriously, but it was clear that at least a few people were using it and that alone had me worried enough. Thank you very much for your comment and support.

  16. [...] To give you an idea of where I am coming from, I am a huge supporter of Creative Commons and have licensed everything I have posted on my sites under one of their licenses since shortly after version 1.0 was launched in 2002. I recommend Creative Commons to almost everyone I meet and actively discourage people from creating their own licenses. [...]

  17. [...] If you want to allow certain uses of your work, add a Creative Commons or other appropriate license. Do not try to create your own license. [...]

  18. john1954 says:

    Is there a good formula to determine how much to charge for unique content written by a market research publisher? By the word, page, etc.? What's the going rate for licensing content for use on another website? (In this case, articles about weight loss programs)

  19. POOP HEAD says:

    how the hell do I do this

  20. [...] Clear Licensing Terms: Trying to draft your own copyright notice usually ends in disaster. Use either all rights reserved, a Creative Commons License, a GPL license or another license that [...]

  21. [...] for example. Some were even going so far as to dedicate their works to the public domain.These licenses are flat out dangerous as homebrew licenses by those without knowledge of copyright issues are, almost universally, flawed [...]

  22. [...] You can also attempt to write your own copyright license, though that path is very risky without the aid of an attorney. [...]

  23. John Eppstein says:

    You title is a bit misleading, It should be “Why you shouldn’t write your own license if you’re an idiot who doesn’t know anything about the subject and you’re not smart enough to have it checked by a good lawyer.

    Most of that “license” isn’t a license anyway and I don’t see anything the writer of it was trying to do that isn’t covered by standard copyright.

  24. plagiarismtoday says:

    @John Eppstein While it’s true this was an exaggerated example, even people who are knowledgeable about the law can make mistakes. I find that the people who know a good deal about it are the ones who take the process most seriously and are the least likely to go it alone, something that I definitely still think is very smart.

  25. John Eppstein says:

    @plagiarismtoday Please note the key words “have it checked by a good lawyer”. Except in the very simplistic case of a license reading “This work may be feely used by anybody provided correct attribution is given”, which is a no-brainer, a good IP lawyer is essential. However IMO the Creative Commons licensing should be avoided so as to prevent giving support to Lawrence Lessig’s anti-copyright movement, for which it functions as an opening wedge politically. Creative Commons also gives away rights in a manner that makes it virtually impossible to rescind the license under any circumstances at a later date.

    Actually, I see very few places where standard copyright would not be adequate, plus the services of an attorney when negotiating licenses for publishers, record companies, etc. And in those circumstances you should ALWAYS use a lawyer and you pretty much always need to negotiate the license on an individual basis.

  26. John Eppstein says:

    @plagiarismtoday

    Please note the key words “have it checked by a good lawyer”. Except in the very simplistic case of a license reading “This work may be freely used by anybody provided correct attribution is given”, which is a no-brainer, a good IP lawyer is essential. However IMO the Creative Commons licensing should be avoided so as to prevent giving support to Lawrence Lessig’s anti-copyright movement, for which it functions as an opening wedge politically. Creative Commons also gives away rights in a manner that makes it virtually impossible to rescind the license under any circumstances at a later date.

    Actually, I see very few places where standard copyright would not be adequate, plus the services of an attorney when negotiating licenses for publishers, record companies, etc. And in those circumstances you should ALWAYS use a lawyer and you pretty much always need to negotiate the license on an individual basis.

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