Has A Spanish Court Questioned The Legitimacy Of Creative Commons Licenses?

from the questions,-questions,-questions dept

Thu, Dec 7th 2006 2:03am — Mike Masnick

Michael Geist points us to a story suggesting that a Spanish court isn't convinced Creative Commons licenses have any legal standing whatsoever. For those who don't know, Creative Commons is a relatively successful program that lets those who created content to put a different type of license on it than a typical copyright, which reserves all rights. Creative Commons licenses are designed to reserve just some rights, while making it clear how the content could be used by others, without having to first negotiate a licensing deal. When Creative Commons first launched four years ago, one of the big questions was what was to stop people from slapping CC licenses on content they didn't actually own. It turns out, for the most part, this hasn't been a problem. However, it does appear to be what happened in this case. A cafe in Spain put up signs claiming that they only played CC-licensed music in the cafe, and used this excuse to avoid paying the standard license that cafes and restaurants usually have to pay if they're playing any music. Unfortunately, the cafe lied, and was playing other music that was not actually covered by a Creative Commons license. For that, they lost the case. However, the judge went one step further in the decision, stating: "…it is worth to point out that the document presented by the defendants-appellants as a license for free use of music does not constitute anything other than a mere informative leaflet about its own content, lacking any form of signature, and therefore bereft of legal value whatsoever." The original blog post worries that this means no Creative Commons license is legitimate, but it depends on how you read that. You could, alternatively, read it as a recognition that in this particular case the license announcements were bogus, because they did not actually apply to the music being played, and really were no more than pamphlets. Unfortunately, though, it's not entirely clear what the judge actually meant, and by suggesting that without a signature they're not valid, certainly could open up lots of problems for anyone trying to make use of CC-licensed content in Spain.

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8 Comments

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Ramon, 7 Dec 2006 @ 2:44am

Applies to any license
If the CC license is "bereft of any value" just because it "lack(s) any form of signature", then all license agreements, including EULAs, are equally bereft of value.
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Joshua, 7 Dec 2006 @ 2:53am

Re: Applies to any license
That was my first thought as well.

Would any kind of signature work? It seems to me that a system of digital signing could lend such licenses more weight (wether or not that's what the judge meant).
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MadJo (profile), 7 Dec 2006 @ 5:18am

to copyright or not to copyright? That's the quest
It used to be that you had to register your work as being copyrighted. So in a sense you had to sign for the copyright.

Does this court want to return to those days?

I'm all for it! :)
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Anonymous Coward, 7 Dec 2006 @ 7:35am

The implications here are dangerous. Is this judge suggesting that he's not going to believe someone gave away their automatic copyright to their content unless there is a signed paper trail to back it up? After all, anyone can (and did in this case) just claim or slap on a creative commons license. Of course, that is just a case of simple deceit and fraud. A more difficult point would be if the judge lacked the imagination to fathom why anyone would want to just give away their rights in such a flimsy way. Unless he empathizes with the concept of creative commons, he may not see the quid pro quo. What economic benefit would there be to you giving away your stuff?
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Anonymous Coward, 7 Dec 2006 @ 8:18am

Is there a standard format for this type of license? If a standard were followed by everyone then this judge would have something to compare the agreement to, and get a sense of its validity.
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Anonymous Coward, 7 Dec 2006 @ 8:30am

Re:
Thats part of what creative commons tries to do, make it more plausible that a layman could make an arrangement such as this. I think the bigger problem would be in believing that a person would willingly and knowingly give away some of his copyright to the world. Some people simply do not understand why you would do that. My friends and family hassle me about why I don't sell any of my software. I don't want to. I want to give it away. Thats just what I want to do with it. They never understand why I would put so much effort into something and give it up without monetizing it.
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spoon?!?!?, 7 Dec 2006 @ 8:54am

@5 - Just go to creativecommons.com and research it for yourself. There is no one default standard of CC. There are standards depending on what level of oppenness you license your work as, from full all-rights-reserved, to hair's width away from full-on open source.

I'm just glad they punished the cafe. That should have been as far as the judge went, though. I say we just get him to clarify his comment. If he just meant in the case of the cafe, then bob's yer uncle. If not... well, I could say the same for the legitimacy of all government, it all exists because we believe in it. He'd better open this can o' worms carefully, or he'll have a mighty mess on his hands.
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John Doe, 8 Dec 2006 @ 11:51pm

THE JUDGE IS RIGHT BECAUSE ...
THE Spanish Judge is right because there is no real contract in place other then a electronic and the majority of the courts agree that eletronic contracts are not fully justified.

On the other hand, this is a leaflet with a electronic record that can be accessed online made by a individual or entity.

Admission of guilt is all you need and in this case you have an admission of license.

So, CC licenses do their job excellent.
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