Obama, (c) and the CCC

As a number of media outlets reported, the White House webpage changed over to an Obama presidency before nearly any other action was taken by the new administration.  In fact, the initial posts on the new blog that fronts the page were dated Jan. 20 at 12:01 pm, only one minute after the Twentieth Amendment says that the new president’s term began.

From my (warped) perspective, the most interesting part of this new page is its copyright policy.  For one thing, it does not appear that the Bush administration had any copyright policy on its web page; at least, there was no copyright policy link on the three instantiation of WhiteHouse.gov that I looked at on the Internet Archive’s WayBack Machine (yes, the Bush administration is already “waybacked.”).  There is a privacy and security policy linked to those pages, but nothing about copyright.  The presumption is, therefore, that the White House was claiming copyright in whatever was open to protection on those sites, which probably was not much.

By contrast, the Obama White House begins its policy by noting that materials on their site that are produced by government employees as part of their official duties are not subject to copyright protection.  This was true during previous administrations, of course, but it is nice to see official recognition of the fact.

Perhaps most exciting, however, is the use of a Creative Commons Attribution license for all content found on the White House page that is created by third parties, “except where otherwise noted.”  For the White House to employ a Creative Commons license is, I think, a wonderful affirmation of the value of the CC license as a tool and a recognition of the fact that there are more ways for creators to serve their own interests than simply to rely on “one size fits all” copyright protection.  Here the White House sets an example that many in the academy ought to follow; I am very proud of the fact that the Duke University Libraries placed most of their web content under a CC license over a year ago and now the Obama administration is, presumably, emulating us.

I am much less comfortable, however, with the last paragraph of the White House policy, which asserts a unilateral right under the DMCA to terminate access for “repeat infringers.”  There is no indication of what kind of infringement could get one banned from the White House site, only a vague admonition to “respect the intellectual property of others.”  The concern is that, if the White House takes the same approach as many other site owners, mere accusations of infringement could make one a repeat infringer, and little account would be taken of the possibility of fair use.  Also, no mention is made of the possibility, allowed for in the statute (see, especially, section 512(g)), that an accused infringer could dispute the accusations and have his or her comments or whatever re-posted until such time as the accuser decides to file suit.

The Obama administration, in its website and in other policy statements, has indicated a new commiment to openness and accountability.  The embrace of a CC license, and campaign statements supporting fair use, offer real signs of a balanced approach to intellectual property protection.  It is to be hoped that these signs point in the direction the administration will move, and that that last paragraph of the copyright policy is just obligatory and carelessly worded boilerplate.