A new Twitter-based service, “soft boiled launched” yesterday, aims to let users put tweets under Creative Commons licenses. The service, TweetCC, aims to bridge the gap between CC licenses, intended for Web pages and downloadable files, and the 140-character world of Twitter.

The service brings with it a slick and easy-to-use interface as well as some serious questions about how copyright and CC applies to Twitter. However, for those who are adamant about licensing everything they create under one copyleft license, the service can provide a way to extend your terms to your Twitter feed.

The questions that remain are whether the service is worthwhile and, if it is, who is it for?

The Basics

TweetCC is a Twitter-based service but not one that requires your password, nor even your username. If you wish to register your tweets under as CC license, all you have to do is log into Twitter, visit the TweetCC license selection page and click the “Use License” link next to the license you want to use.

You will then be directed to Twitter, where TweetCC will paste the content of a specially-formatted tweet into your message box. You then submit the message, as usual, and it will send the reply to the @tweetcc account with the CC license you have chosen, which will be picked up and recorded by their bot in about thirty minutes.

Once the bot has recorded your tweet, you’ll be added to the growing list of users that have registered their Twitter accounts with the service, which numbers just shy of 800 as of this writing. Those that are interested in using your tweets will then be able to visit the TweetCC site and lookup your username, read your license and act accordingly.

Those interested in simply looking through the database of CC-licensed tweets can also simply go through the list, picking usernames to pull from.

Problems in Twitterland

Though the service is certainly great in terms of its simplicity and usefulness, there are several reasons for concern.

1. Copyrightability: As has been discussed many times before on this site and elsewhere, most tweets don’t rise to the threshold of copyrightability. There simply isn’t enough requisite creativity in most tweets, making the issue of CC licensing for most tweets moot.
2. CC Validity: The service doesn’t actually affix the CC license to the work itself, but rather, stores an @reply that expresses the wish to license the work accordingly. There’s also little indication as to how one would complete a CC license via Twitter, as one has to reference the original license when using the work.
3. Opt Out: Currently, once you register for the service, there is no clear way to opt out. Though you can remove a CC license from your site, you can’t remove it from TweetCC at this time. You can, however, change your license terms as TweetCC will record multiple licenses, showing clearly which one is the most recent.

I spoke with Andy Clarke and Brian Suda, the creators of TweetCC, about these issues. On the subject of copyrightability, Suda had this to say:

While I and probably most people generally agree with you, there are probably several that do not…. It could be possible to use reuse everyone’s tweets and risk a court battle to fight it out with those who disagree with your (and my) moot copyrightability thoughts – or spend a few evenings, knock-up tweetCC.com and be sure that any and everything you are using for a commercial purpose is explicitly allowed. We took the latter stance because it was easy, and the right thing to do.

Regarding the issue of fulfilling the CC license, Suda says that it is outside the scope of the project and “between the two customers not the service.”

Finally, according to them, it is possible to opt out of the service by sending a tweet to @tweetcc indicating that you do not wish your tweets to be used. According to them, some have already done exactly that.

In short, though the service isn’t likely necessary for the vast majority of tweets, for those that wish to ensure that all of their content is under the same license or that they are completely within the bounds of the law when using a tweet, TweetCC can be useful.

If the early response is any indication, it is clear that Suda and Clarke have created something that many people were very eager for.

Conclusions

I’ve gone ahead and licensed my tweets under the same terms that this site is under, to ensure consistency. Though the service likely only has limited usefulness, due to the nature of copyright, and has many challenges to its application, it is currently the only thing going in this field. As such, as the saying goes, it is better than nothing.

However, it will be nice to see how this system grows. Some initial thoughts include making a database of all the registered users by the license they choose, making it easier to find tweets by license, and also an index of the tweets by how they are licensed. The idea being to make it easier for those that seek to reuse CC-licenses tweets to do so correctly.

All in all, it is a fascinating idea and one that, though likely superfluous due to the nature of Twitter, will without a doubt bring a lot of comfort and certainty to what is still a very new medium. Though the most effective and simplest solution would still be to see Twitter itself integrate CC licensing into its service, since that doesn’t seem to be likely at this time, this is a good user-generated attempt to solve the problem.

Though some may find it odd that the open source movement has been so quick to celebrate a ruling of infringement, it is indeed a major victory for all of those who release code underneath copyleft licenses including open source, Creative Commons, etc.

The news is not important so much because of what changes with the ruling, but because of what could have changed if the lower court ruling stood.

It is definitely a cause to celebrate, not because of what was won, but the problems that could have been lost.

The Basics

Robert Jacobsen is the creator of the JAVA Model Railroad Interface (JMRI), a program that helps model train enthusiasts manage their setups with a computer. He has licensed his code under the Artistic License, which is considered an open source license by many as it allows broad reuse and copying of the code.

The problem arose when Kamind Associates, a software development company from Oregon, used a portion of the JRMI code without following the license. According to the suit, the company failed to include proper attribution, preserve copyright notices and otherwise comply with the terms set forth in the license.

Jacobsen sued the company and sought a preliminary injunction to stop the use of the code. However, the district court ruled that while the company had indeed violated the license, that they had only breached a “contract” with the plaintiff and were not liable for copyright infringement. Thus, the court denied the injunction.

This initially sent chills down the collective spine of the open source community. Copyleft licensing, from GPL to Creative Commons, has relied upon a violation of the license being copyright infringement. If it were a mere contract, the protections provided by these licenses could have been, in theory, greatly weakened.

Fortunately, the Appeals court reversed the lower court on this issue and ruled that failure to follow the licensing terms, in this case at least, did constitute a copyright infringement and, as such, sent the injunction back to the lower court with specific instructions to only evaluate the injunction on its other merits.

It was a major victory for open source, but it isn’t one that is mark great changes for Copyleft, it is more a matter of a disaster averted.

Why It Could Have Been Bad

The problem with contract law in this case is that it does not provide anywhere near the protections of copyright law. If the lower court ruling had stood, those who use copyleft licenses, including this site, may have been seriously hindered in protecting their work against abuse.

Consider the following limitations, both potential and theoretical:

1. No Injunctions: As was shown in this case, you can not get a preliminary injunction to stop an infringement if it is declared a breach of contract.
2. Less Damages: Where copyright law offers very high damage awards, especially in cases where the infringement is intentional, contract law offers much more limited awards.
3. Limited Enforceability: Given the issues in enforcing certain clickwrap licenses, there could be questions if such a license would be enforceable at all.
4. No Takedown Notices: Though one could still send DMCA notices, it is entirely foreseeable that a court could rule that, if abusing copyleft is not a copyright violation, that such notices are invalid and subject to penalty. That would make sending such notices very risky legally.

It is pretty easy to see what would have happened if the ruling had stood. Those of us that use copyleft licenses would have been forced to switch back to traditional copyright in order to have a reasonable level of protection of our work.

Simply put, if copyleft licenses and their violations had been viewed as a matter of contract law, the results would have been disastrous for the entire copyleft movement.

What Changes?

The next obvious question is “What Happens Now?” The answer is “Not much.”

Since very few people, if anyone, changed their licensing due to the lower court ruling, for the moment we can all go back to doing what we were doing. Most seemed comfortable that the district court’s ruling would be struck down and, now that it has been, there is not much that needs to change.

That being said, it is important for copyright holders, especially those that use copyleft, to follow these rulings closely as they could directly impact their rights.

Fortunately, this bullet was dodged. Let us hope that is a trend that continues.

Conclusions

Whenever I talk about Creative Commons licensing, the most common question I get is whether or not it has been tested in court.

But even though a Dutch court upheld Creative Commons years ago, that answer has not satisfied many. Most wanted a test in the United States and, though this is not it, it is a significant challenge to copyleft in general that seems to have been surmounted.

While there will still be other cases to track, this has gone a long way to ensuring that Creative Commons Licenses are enforceable to the fullest extent of the law.

This is good news, of that there is little doubt.

Related Links

Mark Radcliffe
Standards Today
Groklaw

The Ruling

Get your own – Open publication

Content licensing company iCopyright has opened up a beta of their new, free service targeted at bloggers and other content creators on the Web. Entitled iCopyright for Creators, the service holds a great deal of promise for those seeking an easy way to encourage reuse of their content while protecting their rights.

The company, which typically handles licensing for large organizations such as the Associated Press and Reuters, is making a version of their service available for free to smaller content creators and it includes the ability to perform both paid and unpaid licensing as well as providing other tools to facilitate the licensing process. .

Though only one of the more recent entrants in the race to help bloggers better license their content, iCopyright is a well-known and well-respected company in the licensing field and it brings with it some serious weight and reputation as it seeks to give smaller content creators similar powers and tools those available for large corporations.

How the Service Works

The basic premise behind iCopyright for Creators is very similar to other licensing services such as RightsAgent in that it tries to simplify the licensing process while providing protections for both the content creator and the licensee.

The iCopyright system works by having copyright holders register for an account with the service. During that process, they select a series of licensing terms and services that they want to offer. Their list of current options includes the following:

• Reproduce for Non-Commercial Use (Free)
• Create Derivative Works for Non-Commercial Use (Free)
• Reproduce for Commercial Use (Paid)
• Creative Derivative Works for Commercial Use (Paid)
• Contact the Creator for Other Permissions (Contact Form)
• Discuss the Work (Contact Form)
• Subscribe to the Creator’s Blog or Newsletter (Via RSS)

The Webmaster is then presented with a “tag” to place on their site, typically in the footer of each post, similar to the one below. (Note: This is an image of the tag due to problems with JavaScript and WordPress. Also, this is NOT the actual license of this work, but rather, a sample of the iCopyright badge. This work is licensed under the Creative Commons License located in the sidebar.)

The tag then appears on the site where visitors can click on it to access the licensing terms offered on the site.

If a user selects one of the free options, they are immediately taken to a page and provided with a special link to use to provide attribution. The URL leads to a profile page, similar to this one, that includes a short bio of the author, a link to a more extensive bio and the terms the work was licensed under.

If a user selects one of the paid licenses, they are then taken to a very similar page, complete with a similar link, but a link to pay for the use via PayPal. The PayPal link sends the money directly to content creator, completely bypassing iCopyright and any licensing fees from the company (Note: PayPal fees will still apply).

Finally, the user selects either the contact, discuss or subscribe options, they will either be taken to a contact form or redirected to a specified URL depending upon what the content creator selected in their control panel.

In all of the cases above, the option descriptions can be modified to fit with the site, though the actual licensing terms can not.

All in all, iCopyright for Creators is a very compelling solution for individual site licensing needs, especially those that need more than what Creative Commons can provide.

Lots to Love

In general, the iCopyright system is a simple, powerful and elegant solution to a very complicated problem. Every element of the process has been refined and simplified to make it easier on the parties involved.

For example, signing up for the service is a simple process requiring just a few steps. Outside of the typical username/password creation, you also provide personal information, such as your address and phone number, as well as bios and information about yourself for display on their site.

The process takes only a few moments, especially if you already have biographical information available, and is very well explained throughout. For users, the licensing terms are clear and the process of obtaining rights to a work is presented through a very clean, non-intimidating interface.

However, the features that I am most excited about include the following:

1. Great flexibility: You can choose what licensing you want or do not want to offer. You can offer only paid options, only free options, no derivative works or just require that people use iCopyright’s forms to contact you about any and all licensing.
2. Contact Forms: One of the “hidden” features is that iCopyright for Creators provides you with hosted contact forms so readers can discuss your work with you for any reason, not just licensing. Great for sites that can’t run their own contact forms.
3. No Fees: iCopyright directs all PayPal payments to go directly to the content creator and does not take a “middle man” fee. They are considering other methods of monetization.
4. Double Protection: The use of third-party licensing pages provides protection to both content creators and licensees. It prevents copyright holders from going back on a license they provided and licensees from overstepping the terms they agreed to and claiming they had permission.
5. Practical Attribution: Finally, the service provides clear, simple terms for what constitutes attribution. This avoids many of the controversies seen with Creative Commons Licensing.

iCopyright for Creators has a great deal to offer bloggers and other Webmaster. However, that isn’t to say that the service, especially the beta, is perfect in every way. There are a few caveats worth pointing out.

Some Reservations

Correction: The terms of the iCopyright Licenses ARE human editable. That alters or mitigates against many of the reservations below. Please keep that in mind as reading on. See comments for further information.

It is worth pointing out that the iCopyright for Creators service is currently in public beta and that many of these issues may be straightened out before the final release. These comments are intended to be a part of the feedback process and to help users decide if they want to participate in the beta itself.

With that in mind, I do have some reservations about the current incarnation of the system. If I had complete control over the process, I would strongly consider changing the following things:

1. SEO Issues: The current attribution system does not link back to the original work. This can create SEO problems as the licensed copies appear to be duplicate content and can directly compete with the original posts. Furthermore, with the current layout, it takes two clicks to find a link to the original site from a licensed copy and the default attribution box is not a clickable link. This comes from iCopyright trying to serve both print and Web licensers, but an HTML-based attribution box would be a nice addition.
2. Paid Licensing Oddities: Those who are very interested in paid licensing may be unnerved that the license URL is provided before the payment is sent. Payment is handled on something of an honor system and enforcement is completely a function of the content creator.
3. Creative Commons Incompatibility: The terms of iCopyright’s licenses are wholly their own and are incompatible with Creative Commons. This site, for example, can not use iCopyright for Creators because there is no Share-Alike equivalent and no means to allow free commercial use.
4. Missing License Options: As mentioned above, there are some licensing options you can not select, such as free commercial use or GPL-like conditions. You can alter the description of a license, but not the actual license terms or its name.
5. Terminology: Many, especially bloggers, may be thrown off by the use of the name “tag” to describe the footer iCopyright users add to their content. The term tag already has other meanings and this may cause confusion in some cases.

With the possible exception of the SEO issues, these should be very minor concerns for anyone interested in licensing their work who desires terms that are compatible with what iCopyright has to offer.

For the most part, these are all small prices to pay for a free service that provides simple, clean and effective copyright licensing, especially from such a trusted name.

Conclusions

Overall, I am very impressed with the iCopyright for Creators system. It is clean, easy to understand, flexible and effective. Best of all, it is completely free.

However, perhaps the greatest attribute iCopyright brings to the table is its name. Though not well known among bloggers, they have been in business for over a decade and are partnered with many in the mainstream media. They have a great reputation with both large content creators and those that routinely license content.

Though the system is not perfect and there is room for improvement, it is a compelling option, especially for sites that want content licensing that sits somewhere between a liberal Creative Commons License and all rights reserved.

Considering that the site, the service and all aspects of it are free, there is little harm in signing up for an account and seeing if iCopyright is a good fit.

If it isn’t, you can always not add the tag.

I won’t be using it on this site due in large part to the license incompatibilities, but it is an option I will gladly consider for other sites I work on and advise for.

Gallery

However, after half a decade of licensing virtually every word I pen under a Creative Commons License, I’ve started to look back with a sense of disappointment.

I don’t think I was ever unreasonable with my expectations for CC. I was already well-versed in copyright law and didn’t expect CC to make the plagiarists go away or cure unrelated copyright ills. I knew the bad guys would ignore CC the same as they ignored my license and I knew CC couldn’t fix other intellectual property issues.

However, I did expect Creative Commons to help out in a few ways, ways in which CC has had very little impact.

Statistical Analysis

Though I haven’t kept hard statistics for most of the past ten years, I have kept track of my work as well as technology and time would allow me. As such, consider the following statistics as educated approximations.

Looking at the numbers, it is easy to feel that Creative Commons changed little. However, it is important to remember that these numbers are in the face of growing traffic, a book release and a generally larger audience. If nothing had changed, one would still expect the numbers to go up at least slightly.

Instead, the only numbers that went up were the emails I received asking permission to use my work, the exact problem that CC was supposed to resolve.

Even after adding a Creative Commons License and displaying it prominently on my site, the issue of viewers asking to use my content was so great that I kept a stock letter to send to those who did ask. The letter simply directed to them to the CC license and explained to them what the terms meant.

It is important to reiterate that these are approximations. The numbers would wax and wane heavily based upon the time of the year. They were highest when high schools and colleges were in session and lowest in the dead of summer.

At certain times, especially between Halloween and Valentine’s Day, the numbers could be several times higher.

Also, it is important to note that, both with and without Creative Commons Licensing. Between half and three-quarters of all use of my work was plagiarized.

The Problem

The problem with CC is that, even after five years of being in the limelight, most users either don’t know of or don’t understand Creative Commons.

Evidence of this can be found all over the Web. For one example, take a look at this image on Flickr that Thursday at ThursdayBram.com tipped me off to.

The image clearly shows that the photo is licensed under a Crative Commons License, likely added by Flickr’s CC integration, but the comments indicate that the image is “All Rights Reserved”.

The image itself has been removed but others remain with a similar copyright duplicity.

Though it is easy to write off such situations as simple mistakes, the product of easy CC integration and boilerplate descriptions, but it is a confusion about CC licenses and their role in copyright that make such mistakes both possible and as common as they are.

If you look around the Web, you’ll see all kinds of misconceptions about CC including the notion that CC is a different kind of copyright law and that it is anti-copyright.

Though the CC Organization has battled these perceptions in some cases, it seems, over all, to be powerless to stop the swelling tide of user ignorance.

Moving Forward

The CC Organization, for its part, has moved forward with changes and additions to its licensing scheme. It’s new CC+ and CC0 aim to expand the functionality of Creative Commons deeper into the commercial world and the public domain respectively.

Though the initiatives are both necessary and very exciting, they are likely to only exasperate the existing confusion. I say this because, even as someone who studies copyright heavily and has used CC licenses for over five years, even I am hard pressed to clearly state what each of the initiatives do or how they work.

Though they are both simple ideas, they require a great deal of explanation before most people “get it”. Considering that few current users of CC licenses are likely to require either CC+ or CC0, they could wind up hurting the Commons by adding more fuel to the misconceptions.

And it is those misconceptions that are holding the CC revolution back.

Battling Misconceptions

Of course, the real issue with the misconceptions isn’t that Creative Commons is expanding, but that it is expanding without investing heavily into user support.

Currently, your average CC user visits the site, selects the license, grabs the code and walks away. Though this is very convenient, it doesn’t do much to encourage them to use the license in a correct manner.

Outside of some videos and comics that explain the broad strokes of CC, there is precious little on the nuts and bolts of using CC. No HTML code for using content on your own site, no simple guidelines for changing your mind, save in a buried link off the license page, and precious little clarification about what each of the terms mean in real-world situations.

Creative Commons can not be faulted for this because they, reasonably, expect that people will take a serious interest in the rights they surrender in their work and carefully read everything provided. However, users have been told to expect an easy and approachable form of copyright licensing. Creative Commons appeals to your average Webmaster simply because it doesn’t force them to think about these ugly issues.

In short, Creative Commons is forced to perform a balancing act between being a robust enough solution to survive a strange legal climate and being simple enough to be grasped by laypeople, many of whom are unfamiliar with even the basics of copyright law.

The CC organization struck the balance well, but in doing so created an entity that is neither simple enough for widespread use by those unfamiliar with it nor robust enough to calm fears of many who take the most interest in copyright issues.

Fixing the Commons

Unfortunately, since much of the confusion lies in the realm of copyright law itself, there may be little that CC can do to fix the current climate. However, if I were going to suggest a few ways to improve the commons, my thoughts would include the following:

1. Improved Education: CC seems to invest heavily in new initiatives and bringing CC to new countries. It may be time to step back and focus on educating existing users. Like college professors forced to teach high school English, it may be necessary to include some remedial copyright education. Also, the effort would need to focus more on real-world situations, rather than ideals.
2. Focus on the Web: CC tries to be all thing to all people, including those in print, movies and elsewhere. However, most CC use is taking place on the Web and a focus there makes more sense than a broad push across all media.
3. Freeze on New Initiatives: Though the new initiatives are great, they risk injecting even more confusion into the system. If they aren’t necessary at the moment and aren’t fixing an immediate problem with the system, then they should be held off on until understanding of CC Licensing is more broad.
4. Better Outreach: CC needs to empower volunteers to point out and help correct errors in applying CC licenses. Some do already, but often with a more hostline tone and, at times, inject new misconceptions. Official documents created by the CC organization that are easy to understand that volunteers and good citizens can reference easily would help with a lot of this.
5. Clearly Define CC’s Limitations: Even after the Virgin Mobile case, there has been no clear push to explain what CC doesn’t do. This is only going to create more cases like that one and more disagreements on the Web.

Clearly, there are other things that could be improved, but this would be a tremendous start in clearing the air and confusion that seems to surround CC.

Conclusions

I want to make it clear that this is not designed to be an attack on Creative Commons, but rather, a constructive criticism. My goal is not to sway people way from the Commons, but to improve it and help it achieve its goal. I have a long history on this site of defending Creative Commons, as well as its extensions, and plan to continue doing so.

The reason is that Creative Commons was founded to solve a very serious problem and has, by in large, done a very good job at tackling it. Because of them, artists, bloggers and musicians alike can encourage reuse of their work, without surrendering all of their rights. Users, in turn, can find content for their own works and sites without fear of being sued.

But while the CC principle is the best solution available to a very large and grand problem, it is finding itself somewhat bogged down in the tactical side of the problem. The process of taking its tools and applying them to real world situations seems to be stumping both artists and users.

To work, Creative Commons needs to spend equal time addressing the practical as well as the philosophical. Simply offering the tools for free and trusting the world to use them well is no different than giving everyone in the world a hammer and expecting them to build houses.

The CC initiative is great, but more has to be done before the utopia envisioned can be even close to realized.