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Copyrights and comments
By Noah | March 22, 2009
After this blog went live I received a few comments on the copyright policy, and in particular on the fact that copyright on any comments that you post is transferred to me. Â (See the terms you agree to on the comment posting form.)
The reason I ask you to transfer copyright is simple, and it’s not that I want to steal your content. It’s somewhat messy to have a work, such as this blog, for which the copyright is held in bits and pieces by lots of different people. Let’s say someday a new publishing medium comes along, as the Web did a few years ago, and I want to republish this content that new way. Holding the copyright makes it simple: I have the right to do that, just as I have the right to make as many backup copies as I like, to share the content with anyone I like, or potentially to excerpt some of the exchanges in a book. So, that’s why I took this approach. I also make very clear on the copyright page that I am very supportive of fair use, and that applies to comments as well as other content. Indeed, if you contact me and ask permission to use content for this blog for some purpose beyond fair use, I think you’ll find that I tend to be very generous in granting permissions for such reuse.
One concern was raised that I should have thought of but didn’t:Â transfering the copyright on your comments to me could mean that you lose the rights to use that same content yourself. That was never my intention, and so I have updated the terms you agree to when posting comments to include the following:
In return for transferring your copyright, you are hereby given a fully paid license to use the content you’ve posted in any manner that you wish, including the right to republish in any form or using any medium.
The copyright page has also been updated to make clear that this same license is granted retroactively for comments already posted. Of course, as the comment submission form also makes clear:
If this agreement is not acceptable, an alternative is for you to post your comment on your own blog or other public Web site, and to post a link to that here. That way, you may retain ownership of your own material.
Are there other ways of solving this problem? No doubt, but this one is ultimately simple and feels right to me, given what I understand of the applicable laws. I thank you for your understanding, and also for your contributions to this blog.
Noah
Topics: Arcane domain blog, Non-technical | 9 Comments »
March 22nd, 2009 at 4:43 PM
An alternative is to have the poster retain the copyright but license it to you for your use. Following is the relevant paragraph from the ASF CLA[1]:
2. Grant of Copyright License. Subject to the terms and conditions of this Agreement, You hereby grant to the Foundation and to recipients of software distributed by the Foundation a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute Your Contributions and such derivative works.
Similar text appears in the Apache License[2], but in the other direction (permissions we grant onto our users).
[1] http://www.apache.org/licenses/icla.txt
[2] http://www.apache.org/licenses/LICENSE-2.0
March 22nd, 2009 at 5:16 PM
A better solution would be that the submission places the comment under a CC-BY license. You get the rights you feel you need from the CC license (you can modify, reprint, etc.) and the owner maintains ownership, as long as you respect the attribution they choose at the time of submission. This is what a number of sites (e.g., the new whitehouse.gov or identi.ca) do for comments and is a much more reasonable and straightforward approach.
This all leaves aside the question of whether or not most comments are copyrightable (I’d argue most are probably not, though some certainly are), the question of implied license (I’d argue you’ve got an implied license to do everything you need to do, merely by the act of submission to a public, archived, searchable blog) and the question of the validity of your assignment (probably not valid, both for technical and policy reasons).
March 22nd, 2009 at 5:42 PM
You are turning the world upside down. You wish to take our author’s right away, and then give *us* a license back? If those are truly your reasons, you should just be asking for a license for distribution. Asking the author to relinquish his author’s rights is both excessive for the use case you need it for, and disrespectful of your blog’s commenters.
Either way, just to let you know, under Dutch law this agreement is not lawful, and thus you do not own the author’s rights for this comment (in fact, it makes the entire agreement void, if I recall correctly). Author’s rights can only be transferred under certain strict conditions, and an agreement text and a button do definitely not satisfy those conditions.
If you want to add such a silly note to your blog, please be aware of the legal limits imposed on what can be agreed upon and is legally binding for an agreement in this form. You can not just state anything that you wish, and have it be legally binding by making the user press a button, it does not work that way. Otherwise, author’s rights would be virtually worthless because your rights could easily be taken away.
As it is, if you fear for having to contact users when republishing the comments on your blog in a different form, you still have to do so at the least for commenters who are inhabitants of the Netherlands, according to Dutch law. And very likely for inhabitants of other countries as well, but I am not familiar with the legislation of those.
I hereby grant you a license for redistribution, though.
~Laurens
March 22nd, 2009 at 6:06 PM
Looks like US law has similar provisions:
http://www.copyright.gov/circs/circ1.html#toc
It even does not seem to allow for electronic transfer at all (the Dutch law allows that, provided digital signatures are used).
~Laurens
March 22nd, 2009 at 6:12 PM
Also, for (partial) republication in e.g. a book, there are quotation rights that allow you to do so under certain conditions, so you may not even need a license for distribution. Or it may be implied already by users posting on your blog. I don’t know exactly, IANAL :). But I am aware of my author’s rights :).
March 22nd, 2009 at 7:59 PM
First of all, thank you all for the prompt comments. I particularly appreciate Laurens pointing out some of the legal details that I was not aware of, both regarding the Netherlands and in the US. I will also give some thought to the CC-BY license approach, as suggested by Luis.
In short, I’ll have to give this all some thought, though I suspect that in any case there’s nothing I can do that would (or should) have any retroactive force on the comments already posted. The agreement I’ve asked people to agree to is either enforceable or not, and the answers may differ from one jurisdiction to another.
I hope my intention is clear: I would like if possible to be able to do pretty much whatever I like in terms of archiving or republishing in any form the material in the blog, including the comments, as long as appropriate attribution is retained for material contributed by others. I’d like that to be true regardless of where in the world the commentors live or from where they post their contributions. It is also not my intention to in any way limit what people do with their own writing as a result of making contributions to this blog.
Perhaps Laurens is correct in implying that asking for a copyright cannot be enforceably done using the current text near the pushbutton, but that granting a license for me to use the content could be. In any case, getting a completely reliable answer would presumably require hiring a lawyer at considerable expense, and right now this isn’t worth that to me. If I can’t come up with a better resolution economically, then I will just have to keep in mind that I may not have the rights I would prefer to have with respect to republication of comments.
As I say, I’ll have to think about this some more. Again, thank you all for the prompt feedback. If nothing else, this has answered one of my more fundamental questions about the blog: is anyone other than my immediate acquaintances reading it? I guess so, and that is very gratifying. Thank you again.
Noah
March 23rd, 2009 at 10:12 AM
Hey,
Just want to say, apologies for saying ‘silly’ in my comment 3 earlier. Thinking about copyrights is never silly, in fact it is pretty important and many people often do not consider it when they should. I got a little caught up in being indignant about the attempt to take away my author’s rights I guess :), and I would’ve edited it out if I could.
I had a course called ‘Law and computer science’ in university, that was a very interesting and useful course. It taught me a lot about the basic levels of protection law gives you, the way law is structured, and what different kinds of legal agreements can and cannot do. You don’t need to be a lawyer to make sense of legislation, but at the same time it is not easy matter either and you have to read the legal documents carefully.
Luis makes a couple of good points in his comment above. Creative Commons has done a lot to make licensing easier for everyday users. I also like the thought of not needing a license agreement at all :), because distribution rights can be implied, and you can use quotation rights for reuse in different contexts. But by agreeing on a CC-BY license, you probably get more flexibility.
~Laurens
March 24th, 2009 at 1:42 PM
No offense taken, Laurens. I owe you an apology as well: in my original responses I ineadvertently misspelled your name as Lauren. I believe that’s now corrected.
I’ve been talking to various friends who are involved with Creative Commons and others who have some experience with these matters, and as I say, I’ll give it all some thought and try to come up with a better approach for dealing with comments.
Noah
May 17th, 2009 at 12:46 PM
Thanks to everyone who commented on this thread. After taking some time to think about it, I’ve decided to go with Sam Ruby’s advice in comment #1 above (http://blog.arcanedomain.com/2009/03/copyrights-and-comments/#comment-58). The legal agreement for posting comments to this blog now reads:
“Legal agreement: by pressing the submit comment button you grant to Noah Mendelsohn a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute your comment contribution and derivative works thereof. Noah Mendelsohn reserves the right to republish such material in any form, though reasonable efforts will be made to retain the attribution to you. You also confirm that you have not knowingly violated copyright or other applicable laws pertaining to material that you have quoted or reproduced in your comment. (Note: if this agreement is not acceptable, an alternative is for you to post your comment on your own blog or other public Web site, and to post a link to that here. That way, you may retain ownership of your own material.)”
This agreement replaces the old transfer of copyright starting with comments posted on 17 May, 2009. Thank you to everyone who contributed to the discussion of this policy.