What is the Creative Commons and How Does It Interact with Fair Use?

Intellectual Property - Copyright

The Creative Commons is a project initiated in part by professors at my alma mater, Duke Law, through their work at the Center for the Public Domain. The Creative Commons says that it “develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.”

What exactly does that mean? Well, it means that the Creative Commons project provides legal documents to average people who want to be able to share their content on the web and allow others to use it. There are several options for how to allow others to use your content. You can allow others to use your work commercially (for profit) or non-commercially (for display). You can allow others to make changes to your work, make changes only if they attribute the original to you, or not to make changes.

Who would use a Creative Commons license, and why? It is a great option for creative works like web comics, where the goal is often to get as many people sharing as possible. It is a great option for some amateur or new-to-the-scene artists who care more about seeing their work gain recognition than about making money on the work at the moment. It is a great option for a non-profit or advocacy organization that wants to have its materials distributed by its members with clarity about the expectations surrounding that distribution. It is not a great option if you want to ensure that you have complete control over the use and distribution of something you made.

How does the Creative Commons relate to fair use? Fair use is use of copyrighted material that does not violate copyright infringement laws. Fair use is defined by the Copyright Act’s Section 107. Section 107 states that for certain purposes, including “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” copying and making use of other rights granted to copyright holders do not constitute infringement. The Creative Commons licensing system expands the ways in which a particular work can be used without needing specific permission from the owner of the work, to make use and copying of particular works more compatible with the ways in which the Internet allows sharing.

Do you think you might be a good candidate for a Creative Commons license? Want something similar, but don’t think Creative Commons is for you? Feel free to contact me for help!

Advertising: Who Knew It Was So Complicated?

You want to send a newsletter to your customers, or you are interested in doing some direct mailing, or you want to start your own email marketing list for your current and prospective customers. You have vague ideas that some things are allowed and others will get you into trouble, but you aren’t sure with whom or why. What to do?

Direct marketing, even of products and services that are not subject to regulations, can subject a business to a painfully complex web of laws and rules. Here are some resources to help you get started:

Federal Trade Commission

Advertising and Marketing Basics

CAN-SPAM Compliance Guide

Marketing to Children

Online Advertising and Marketing


Federal Communications Commission


Fax Advertising

Always remember: if you are in an regulated industry, you should check with any body that has authority over your company to see whether you will need to comply with any special rules.

Still not sure what you need to do? My firm offers help with direct marketing compliance. Feel free to reach out!

SOPA and PIPA Post-Mortem: What Would Work?

Intellectual Property - Copyright

The controversial Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA) are, it seems, dead. After raising concerns about the effects of the bills on websites of all types and a widespread blackout protest, opponents of the bills successfully convinced legislators to withdraw their support, and ultimately the sponsors withdrew the bills.

The bills’ opponents claimed that they would destroy the internet. They said that it would cause search engines to have to shut down, kill startup businesses that cannot possibly monitor their content as the bills would have required, and that mere linking could get an entire site shut down.

The bill’s proponents are difficult to find this week, but they are furious. They claim that the bills would have protected content creators in unprecedented ways, and that the opponents have business models built on infringement.

What is a content creator to think? On the one hand, most creative entrepreneurs know that they need to protect their intellectual property. Many have had a frustrating run-in with a larger company that infringes on their content and refuses to stop, mainly because of who can afford to pay for legal costs. It would be immensely satisfying to be able to stop those infringers cold by shutting down their entire website. On the other hand, many small businesses rely on the very websites that claimed their existence was threatened by SOPA and PIPA: search engines, aggregation sites, shop hosting sites. It is difficult to build a business around having the top Google results in your area if Google has been taken offline for directing traffic to pirating sites.

What might work instead? Perhaps a SOPA-like system could exist, keeping content creators who believe their works are subject to a great deal of piracy happy, but only in concert with a more rigorous registration system. Under the current copyright regime, copyright exists in a given creative work at the moment it becomes fixed in a tangible medium of expression: when it is written, when it is recorded, when it is hewn into stone. Both nationally and internationally, orphan works  and multiple ownership cause headache after headache, making it very difficult for people to find all owners necessary to give permission for using a particular work. The problems caused by these issues are only amplified in an environment where a company could unknowingly be hosting copyrighted content that was posted in good faith by a user who believed that the work was in the public domain.

However, if content creators were required to register their copyrighted works in a searchable and crawlable database (the Copyright Office’s current searchable database is insufficient, going back only to 1978) to obtain the protections of a bill similar to SOPA, two birds could be killed with one stone: the lack of notice and lack of ability to find owners of copyrights could be dramatically cut back, and content creators could be assured of better protections. And it could spring up an entire cottage industry of bot creation whose sole purpose is to help innovators ensure that the content posted to their sites does not match anything in the Copyright database.

This system would, of course, create some controversy. People and companies who have already registered their works might cry foul for being forced to re-register them to obtain the protections of copyright law. On the other hand, there are orphan works even among registered works: copyright registrations are often not transferred properly at the death of an author whose family may be unaware of, or simply not care about, his copyright works. In other cases, companies are disbanded and their assets are never properly disposed of for one reason or another.

To be fair to both groups (those subject to the SOPA-like regulations and those who create the content), perhaps the best route would be to allow current copyright holders to port their own registrations over to the new system at no charge. For owners of older copyrights that are not in the Copyright Office online database, a small fee could be charged for the expense associated with verification and formatting. For those who have not yet registered copyright, the option to include the new work in the SOPA database could be part of the copyright registration process—for an additional fee.

In a world where technology makes it quick and simple to share, and where changes in the medium far outpace our ability to preserve old media (how many floppy disks do you still have?), copyright law begins to look like a dinosaur. If it is to remain relevant, it must adapt.

What do you think? What is the best way to protect content creators without stifling innovation?