Bare Licenses vs. License Agreements on the IP List

Dave Farber just posted this response of mine to his IP list in a thread discussing the recent, quite ridiculous Dvorak article about Creative Commons in PC Magazine:

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Dvorak lashes out pretty hard on the CC system, but in his defense, there is one troubling aspect of CC that is worth noting. CC puts forth the notion that content should be distributed via license instead of copyright.

I am by far not the ideal person to be correcting Mr. Kay, but I'd like to think I know a few things about licenses and license agreements.

Mr. Kay makes the mistake here differentiating a "license" from "copyright". Licenses are what copyright holders (or authorized sub-licensors) give in order for the recipient to exercise any of the exclusive rights granted by copyright law. So, licenses are an essential part of copyright, not something different.

I think Mr. Kay is trying to distinguish between licenses and license agreements. Maybe the distinction that Mr. Kay was trying to get at was that license agreements (which are meant to be treated as contracts) can last longer than the copyright in the underlying work.

As far as I can tell from reading the legal versions (like this one), the Creative Commons licenses are bare licenses or naked licenses. That means that there is no requirement for the recipient to agree to anything like in license agreements (which are licenses plus a contractual infrastructure). Put more simply, Creative Commons license are not meant to be treated like contracts, but like copyright licenses. (For a discussion of the distinction between contracts and bare licenses please see Lawrence Rosen's book "Open Source Licensing", especially chapter 4).

The Creative Commons licenses expire when the underlying copyright in the works expire, then they become part of the public domain.

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Joseph Lorenzo Hall
UC Berkeley, SIMS PhD Student
http://josephhall.org/