Creative Commons: License to Splog?

As shocked as Steve Rubel was to find out that plagiarists were scraping his RSS feed, he was probably even more surprised to find out that his Creative Commons license actually allowed the abuse to take place.

Like many good Webmasters, Rubel licensed his work under a Creative Commons (CC) license in hopes of encouraging it’s sharing and distribution. He never considered that it might be used against him by RSS thieves seeking to sell ad space.

However, the CC license is rapidly becoming a double-edged sword as content becomes more valuable than ever and sites are looking for quick, easy ways to gain a lot of it.

What CC Licenses Are For

CC licenses are designed to allow copyright holders to give up some of their rights and allow greater reuse of their work. Depending on the license the copyright holder chose, others can take advantage of a CC license to duplicate a work, make derivatives of it, perform it, use it in another piece and much more. It’s designed to prevent users from having to ask before taking every little liberty with a work.

Theoretically, a CC license helps out everyone. Webmasters don’t have to answer millions of queries from people wanting to reuse works and get greater exposure from having their works posted elsewhere. Users save the time asking every author they want to borrow from and gain valuable content for their site.

It sounds like a great idea and many Webmasters, myself included, have taken advantage of it. We’ve reaped many rewards from it and as CC works become more mainstream, many have even made a living off of their CC licensed work.

However, the old adage of giving an inch and taking a mile comes to mind as some individuals don’t just use a CC license to their advantage, but outright abuse it.

The Problem with CC Licenses

CC licenses, from what I have read in the license itself and in discussions regarding them, make no mention about what quantity is acceptable. Though clearly there is a difference between taking and reposting a single work and reposting an entire site, the license offers a blanket protection that covers both behaviors.

This has made CC licensed material a haven for sploggers, scrapers and anyone else who needs a large volume of legitimate looking “junk” content quickly. They can scrape an entire feed, offer token attribution to each full post lifted (often linking just to the original post) and rest comfortably knowing that they are within the bounds of the law. After all, they had permission.

This has caused many Webmasters who are using very liberal CC licenses to specify noncommercial use only. However, the protection this offers is minimal because most sploggers don’t put ads directly on the splog itself and, instead, only use the pirated text to build Pagerank. Since the work itself isn’t being used directly to make money, it’s very likely that the use could be considered noncommercial.

However, even if ads are placed around the lifted work, it’s very possible that a court might not consider the use commercial since the work itself isn’t being sold. Though the noncommercial CC license itself does make an attempt to address this by saying that you can not use the work in “any manner that is primarily intended for or directed toward commercial advantage,” other sites that carry advertisements reuse noncommercial works regularly.

Clearly, much of this is going to come down to what the court decides the definition of “commercial advantage” is when it pertains to a CC license and that decision, most likely, is a long ways off and, since intent is always difficult to prove in a court setting, will probably remain muddled long after that.

Worse still, CC licenses can not be effectively revoked. Though you can cease distribution under one, any copies of the work that exist elsewhere still carry the license and since it is literally impossible to delete something once it has been released on the Web, it’s safe to say that the content will always exist under the old license.

So, even if a noncommercial license helps to protect future works, a big if, it can’t protect the works already lifted. No amount of scrambling can go back on a contract that can not be revoked. It’s that simple.

The Fix

The only potential fix for the situation is for the Creative Commons Organization to step in and realize the problem. Their licenses all have clauses, much like the GPL (or at least many instances of the GPL), that automatically license all their works under future versions of the same license as well.

If the Creative Commons Organization could find a way to not only allow webmasters to select what kinds of rights they want to give away, but also set quantity limitations on the number of individual works that can be used at a time, they could help copyright holders not only make their works available for public use, but also protect their work against those which want to abuse their generosity.

If nothing else the CC licenses should carry a note that only a reasonable amount of work should be used at one time. Though a CC licensed play is definitely open to be performed, a CC licensed blog should not be open to being scraped.

After all, no one is going to want to use a CC license if it means that their entire site is fodder for greedy scrapers. Even I have had to begin rethinking my CC policy.

Because, even though the CC licences were designed with the best of intentions in mind, it failed, like so many good ideas, to take into account those with the worst intentions. Though they’ve done more than any other organization to bring about the atmosphere of cooperation between copyright holders and the public, there’s clearly trouble in paradise.

Fortunately, unlike with blogging itself, these holes can be filled relatively easily. All it will take is a little effort and a few revisions.

[tags]Plagiarism, Creative Commons, Content Theft, Copyright, Copyright Infringement, Copyright Law, Copyleft[/tags]

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