Category Archives: Licensing

The most dangerous place on the Web

The most dangerous place on the Internet may well be inside that little button that says “I Agree.”  The opportunity to bind oneself to a contract almost unconsciously abounds on the Internet, and the immediacy of the Web encourages click-through agreements that are almost never read and, if they are, impossible to understand.

The Electronic Frontier Foundation has provided a nice primer on on-line agreements in this document called “The Clicks the Bind: Ways Users “Agree to Online Terms of Service.”  This is a long blog post or, in PDF, a three page document that should be read by everyone who uses the Internet.  It helpfully distinguishes major types of online agreements and the relative likelihood that the different forms result in binding contracts.  The document, by EFF’s Ed Bayley makes two programmatic assertions, both of which seem unarguable.

First, users should have to take an affirmative step to agree to terms of service.  Put another way, terms of service that are there if you want to look at them but do not require even that thoughtless click should not be enforceable.

Second, Bayley asserts that terms of service from online service providers should be publicly available, not just presented as a pop-up as one enters the site for the first time.  This would allow public discussion, which is important if people are to get past the habit of clicking without reflection on “I Accept” and come to some awareness of what they are agreeing to.  Even when TOS are publicly available, they are not very easy to understand.  Over a year ago, I printed out the TOS for Flickr just as an example and found that, at that time, they ran to over 12 pages of printed legelese.  A repeat of that experiment shows that they are shorter now — “only” 10 pages.  And to Flickr’s credit, they are available to anyone who wants to see in advance what they are getting into.

Bayley’s short essay is vital information, and the suggestions he makes seem like minimum steps that must be observed if courts are really going to hold individual users to the extensive and complex clauses found in these online terms of service.

What are we paying for?

As the lawsuit brought by three publishers against Georgia State University claiming copyright infringement in GSU’s e-reserves and course management systems wends its way toward what seems to be an increasingly likely trial, it has had an unexpected benefit for academic librarians who manage electronic reserves.

As many people already know, academic copyright expert Dr. Kenneth Crews from Columbia University was named as an expert witness in the case this past Spring.  His report on e-reserve practices and argument for broad latitude for fair use is one of the best documents on this subject I have ever seen.  Peter Hirtle, of Cornell University and the LibraryLaw blog, performed a tremendous service by posting this report and some other documents from the case on the Scribd web site.  I have been reading the documents in the case on the Justia web site, but locating the documents attached to filings there is very cumbersome, so I have never considered linking to them here.  Peter showed much more ingenuity and determination than I can muster by providing this easier access to these public documents.

Peter’s post, with links to the various documents, can be found here.

In addition to the expert report, which the plaintiffs tried to exclude from the case, there is also some fascinating material in the “rebuttal expert report” that Dr. Crews filed after the plaintiff’s own experts had filed their reports.  One of the most interesting discussions in this second document, to me, is Crews’ comments on the inadequacy of the licensing market for electronic course readings as it currently exists.  In one amazing section, Crews recounts locating an offer to license permission to two of his own works on the Copyright Clearance Center’s website.  The only problem is that these were works for which Crews had retained the copyright himself, and he never authorized CCC to sell licenses for them.  From this small example, he raises the question of how secure those of us who purchase permission for at least some of our digital course content can feel about what we are buying.

I think many librarians rely on the idea that they are purchasing specific licenses for individual works from the Copyright Clearance Center, but I also know that an increasing number of us are concerned that what we are really buying is insurance.  As a colleague from another institution put this idea to me, “if we are spending enough money with CCC, it would be a horrible business decision for a publisher to sue us.”  The real question, of course, is how much money is enough.  But in any case, this notion of buying insurance for our e-reserves has never appealed to me, and I am pretty sure it is not the way CCC itself sees the licensing transactions it facilitates; everyone would be happier, I think, to believe we are purchasing legitimate copyright permissions.  But by raising the question of whether CCC actually has the right to sell some of the licenses it does sell, Crews makes the situation look more like we are, at least some of the time, paying “protection money” rather than effective licensing fees.

I can’t define it, but I know it when I see it

No, the title, a paraphrase of a famous remark by Justice Potter Stewart, does not refer, in this instance, to pornography, but to non-commercial uses of copyrighted works.

One of the persistent criticisms — or perhaps reservations is the correct word — about the Creative Commons licensing scheme has been that one of the major terms used in CC licensing — non-commercial use — is too vague and subject to varying interpretations.  The core purpose of the Creative Commons, of course, is to allow copyright holders to license their works in a way that assures subsequent users that they can make use of the works within defined parameters.  Two of those parameters are attribution, which is protected by CC licenses even though not adequately ensured under U.S. copyright law alone, and, often, a restriction to non-commercial uses.  But if there is no agreement on what it means to call a use non-commercial, then there is a real problem with the licensing scheme; it would fail to provide that assurance, which reduces the need for transaction costs involved in seek permission, that is its basic purpose.

Now the Creative Commons has released a voluminous report it commissioned to study this potential problem.  Although “Defining Noncommercial” is a massive document that I have not read in its entirety, it is clear from the executive summary and a perusal of the survey data that the situation is not really as serious as some feared.  The report suggests that although a comprehensive definition of noncommercial remains elusive, there is not a major problem with its use in CC licensing.  Basically, most people seem to agree that “they know it when they see it.”

Two specific findings in the report struck me as particularly supportive of the continued use of “non-commercial” as a licensing term.  First, the marketing firm that did the research found that there was broad agreement on what non-commercial meant.  Most creators and users agreed that a use that made money for the user or involved advertising was commercial, while those that did not, were not.  This broad agreement helps explain why the millions of items licensed under CC licenses have generated so little litigation in the eight years since its founding.

Even more interesting was the finding that showed that when creators and users disagreed about whether or not a use was commercial, it was the users who were more likely to err on the side of seeing a use as commercial, and thus not covered by an “nc” license.  The reason this is such an encouraging finding is that it suggests that users will ask permission in doubtful cases, even when the creators (who hold the rights) do not think permission is needed in the particular situation.  Thus CC licenses can reduce the transaction costs involved in seeking permission, but they will not eliminate all need for permission and users are likely to ask when they are in doubt.  CC licensing, of course, facilitates asking permission as well, since works so licensed will have an identifiable rights holder.

This finding is consistent with our experience at the Duke University Libraries, where we placed most of our web pages under a CC license over two years ago.  We still do receive some requests for permission, even for pages that carry the CC license.  I try to inquire about why people are asking when the page carries a prior permission that almost always covers the proposed use.  Invariably I am told (mostly by other librarians) that they consider asking both the cautious and the courteous thing to do.  So while we believe that the license empowers many users and reduces transaction costs, we also see that users who are in doubt feel free to contact us for clarification.  This confirms that the non-commercial term is not the problem that some have feared.

Creative Commons has always striven to make its licenses effective and useful, and this study is one more tool for understanding how those licenses are and can be employed.  The CC itself suggests three lessons that we can take away from this study:

the findings suggest some reasons for the ongoing success of Creative Commons NC licenses, rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses, and serve as a reminder to would-be users of the NC licenses to consider carefully the potential societal costs of a decision to restrict commercial use.

Good advice, available for those who want to be sure that, in regard to non-commercial use, we “know it when we see it.”

Click-wrap and illusory promises

At the end of my last post I returned to a frequent theme, the unfairness of “clickwrap” licenses and the fear that they are over-enforced by courts, in spite of the inability of users to negotiate the terms or avoid enforcement of these one-sided deals.

So I was rather pleased to find an exception — actually a series of exceptions– to this over-enforcement in a recent case out of the federal district court in the northern district of Texas.  While this line of cases does not accomplish what I have wished for, a ruling that copyright law and its exceptions should preempt non-negotiable contracts, they do show that, in some circumstances, courts will reject a clickwrap agreement when the seller takes too much advantage of its powerful position.

Cathryn Harris agreed to a clickwrap license when she signed up for a particular online program run by Blockbuster.  Such licenses, of course, condition service or access on agreeing to a set of terms that is wholly non-negotiable; all the user can do is click “I Accept” or forgo the service entirely.  I have complained about enforcement of a similar licenses in the Turnitin case by a court in Virginia, where the students were compelled by their school to sign up with Turnitin.  In this case, when a dispute arose and Ms. Harris filed suit against Blockbuster, the company tried to enforce the clause in the clickwrap licenses that sends all disputes to arbitration (which is much less expensive).  Ms. Harris opposed the motion to compel arbitration, and the Texas court sided with her, ruling that the entire agreement, including the arbitration provision, was invalid.

The reason the court rejected the license was that it contained a provision saying the Blockbuster could change the terms of the agreement at any time, without notice.  Such provisions are not uncommon in clickwrap licenses, because the nature of the agreement makes it impossible for the seller to contact everyone who agrees to the terms of use.  But here the court said that such a clause makes the contract “illusory.”  Contracts, after all, are an exchange of promises, and a one-sided, “we can change the terms anytime” clause really means that the side that drafted the agreement has not made any promise at all that it is bound to stick to.  When an apparent promise really is just statement of discretion — “I will pay you $20 to wash my car if I decide it was worth it” — courts call those contracts illusory because there is no real exchange of promises.

As this analysis of the case shows, there have been several cases in which such clauses allowing one-sdied changes have caused a clickwrap agreement to be found illusory.  It is interesting that they are all about arbitration.  I suspect this is because arbitration is something that must be based on mutual agreement, and courts are reluctant to limit a person’s access to the legal system based on a promise they could not undertake voluntarily.

For the purposes of our concerns here, this case is a small indication that clickwrap licenses must be drafted carefully, and that the fact that users seldom read such agreements is not an excuse to overreach too far.  When the issue is important enough, a court will occasionally void a one-sided agreement rather than enforce terms that put one party at too great a disadvantage.  Perhaps we will soon see such a willingness to reexamine clickwrap agreements when the disadvantage caused is a loss of those user rights that Congress so clearly intended when it drafted the copyright law.