Can Creative Commons and Commercial Aggregators learn to play nice?

Like many egomaniacal bloggers with too much free time, I check sites like Technorati to see who’s linking to my blog. This morning, I saw a link from a blog I hadn’t seen before: usmediaweb.net. Following the link, I found a page that looked unfamiliar, but had familiar-sounding text. It was a post from my friend Rebecca MacKinnon’s blog, which linked to a post I’d made yesterday.

So what was it doing on usmediaweb?

Well, according to “Bryce”, the administrator of usmediaweb, the site is an aggregator which syndicates content from “websites that have a creative commons, non commercial license for the text on their websites (blog preferable).” Bryce goes on to note, “*If you have found your content on this site already, you more than likely have a Creative Commons licensed blog.” It’s quite possible that Rebecca has given Bryce permission to reprint her feed – I’ve emailed her to ask. But the note suggests that it’s also possible that he’s been including non-commercial feeds without getting explicit permission.

Indeed, Rebecca does have a Creative Commons license on her blog – a Creative Commons Attribution-ShareAlike 2.0 deed. This license includes a “share alike” provision, which specifies that “If you alter, transform, or build upon this work, you may distribute the resulting work only under a license identical to this one,” unless the content creator gives explicit permission to allow the content to be used under other terms.

It’s unclear what license Bryce has produced his derivative work under – there’s no visible CC license on the main page of usmediaweb.net or on the page reproducing – word for word – Rebecca’s post. The main “transformation” of the work Bryan appears to have made is adding an ad for Yahoo! Search Marketing on Rebecca’s page, stripping away the design from her blog, and placing Google Ads on the front page of the site, which features the link to her “transformed” post.

The combination of syndication, aggregation and creative commons licenses opens up a complex grab bag of legal issues that are likely to become increasingly important in the next few years. My friend John Palfrey found himself embroiled in debates over Top Ten Sources, a site that republishes blog feeds, adding ads to them. He responds with a (very reasonable, in my opinion) argument that Top Ten Sources transforms content by contextualizing these blogs into editorially-controlled lists and – critically – offers bloggers the option to opt out before their content begins being aggregated. This stands in sharp contrast to the “blog content theft” Steve Rubel and Jason Calcanis have accused people of, where sites reproduce full content feeds, ad Google Ads and profit without crediting the original publisher or asking permission.

What Top Ten Sources is doing is a reminder that there are times we want our content aggregated. I run an aggregator – BlogAfrica – that reproduces content from African and Afrophile blogs. The vast majority of the blogs included in the aggregator have written to me and explictly asked to be included… but, when I began the project, I added several African blogs I admired, not checking their copyrights or asking for permission. I’ve not received any requests to remove blogs, and I believe that most participants in the aggregator – which does not feature ads and generates no income – see it as a service that draws more attention to their sites. But watching sites that make me less comfortable – like usmediaweb.net – leave me with some uncertainty and mean that I certainly won’t start a Blogafrica aggregator in the same way again.

Creative Commons licenses were created, in part, to give authors more control over how their content can be shared and reused. With 11 licenses available, authors should have a great deal of control over use of their work – more choices means more control, right?

Here’s where things get a little confusing. I publish content on my blog via the Creative Common 2.0 Attribution license, probably the most permissive CC license. My logic behind this is that, on those rare occasions someone to republish something I’ve written, they can do so with a minimum of effort. (Generally, I find that most publications who want to use my work ask me first, and I invariably tell them that the cc license means they’ve got my permission even before they’ve asked for it.)

But my intent in publishing under this license wasn’t to have anyone republish everything on my site, especially in a context where they’re adding no value other than placing ads on the posts. I could respond to this threat by moving to a non-commerical CC license, but that makes it more difficult for a for-profit publication to reprint one of my stories, which is something I’m very open to having them do. How does one enforce the spirit of a CC license – the idea that one is willing to share some of one’s content, or share all in a way that’s transformative – without changing the letter of what that license makes possible?

(This isn’t entirely a theoretical issue. Global Voices is trying to figure out how to respond to a very similar situation, where our content is being reproduced in violation of our license, where we’ve asked the site to stop reproducing our content without crediting us, and they’ve not stopped. Because we’re actively working on resolving the situation, I’m not going to name the site… but it’s an issue that’s very much on my mind.)

I want to see Creative Commons succeed. I share Larry Lessig’s concern that artists of all sorts need material to enter the public domain so that we can comment, remix, repurpose and create. I release (with very rare exceptions) everything I do under CC in the vague hope that someone else will find it useful. But widespread abuse of content published under CC licenses will make creators – me included – reluctant to release content under them.

Writing about the first known case that enforced rights under a Creative Commons license, Mia Garlick – general counsel for Creative Commons – writes:

Many people have asked us over the years whether any court had held that CC licenses were enforceable. I have always found this question to be amusing. In my many years as a lawyer in private practice, if the licenses I had drafted were *not* litigated, then I was considered to have done my job well. But for some, it seems that keeping people out of court is not an indication of CC’s success; the legitimacy of the CC licensing system depended on some judicial validation.

I’m not amused by the question. There’s a danger, I think, of “entrepreneurs” concluding that content under Creative Commons licenses is can be used any way one pleases, without adhering to the strictures of the licensing terms. Unless these licenses get enforced, they won’t have teeth. I’d hope that CC would be encouraging people to litigate these licenses, demonstrating that they stand up and that people need to honor the intentions of a content creator who makes the decision to share his or her content.

But hey, what do I know? I’m not a lawyer.

John Palfrey is a lawyer, though, and he offers an interesting solution: aggregation licenses based on Creative Commons that make it much clearer just what an author intends to let someone do with his or her content. He offers five possible licenses, ranging from no restrictions on aggregation, prohibition on aggregation, aggregation for personal purposes only, and full-text and excerpt-text aggregation with attribution. Personally, I’d love this – I’d likely choose partial text aggregation, with the assumption that no one would want to run my absurdly wordy posts in full on their site.

My main worry with this solution – explaining the differences between CC licenses is already pretty tricky – explaining the subtleties of publishing and aggregation licenses to users who are just getting their heads around the idea of alternatives to copyright seems pretty daunting. Unfortunately, the challenges that arise when new technology makes new types of behavior possible are pretty daunting as well, and the solutions may need to be pretty complicated.