Lawsuit Over Use Of Creative Commons Content Raises Contract vs. Copyright Issue; TechDirt.com, 7/8/10

Mike Masnick, TechDirt.com; Lawsuit Over Use Of Creative Commons Content Raises Contract vs. Copyright Issue:

"One of the more interesting issues related to copyright law is how contract law meshes with copyright law. For example, there was the recent case (still going through the appeals process) over whether or not a copyright holder (a record label in this case) could effectively wipe out First Sale rights (allowing you to resell what you bought) via a contract. As of right now, the US courts have said no -- and that's important. If you could supercede copyright laws with contractual terms, it would make the limitations on copyright law effectively meaningless, because every product would quickly include some sort of licensing agreement that took away fair use, first sale and other exceptions (including, potentially, the idea that the copyrights might someday expire). This is not a US only issue, of course. Just recently we've seen blogs from elsewhere also start to discuss if contracts can increase limitations beyond copyrights.

However, there is a new lawsuit in the US that may be worth following on this topic. It involves GateHouse Media -- a company that has been ridiculously aggressive in trying to stop others from doing things as simple as copying a headline and a lede. In this case, the primary issue is a little (if only slightly) more reasonable, in that the lawsuit involves a company that sells nice looking plaques to people with a copy of a newspaper article about them or their company. GateHouse offers such a service itself, and clearly sees this competition as infringing.

Where the case gets interesting, however, is that GateHouse's content in this case (from the Rockford Register Star in Rockford Illinois), has its content covered by a Creative Commons "Attribtuion-NonCommercial-NoDerivs" license. The lawsuit covers a bunch of ground, but one interesting inclusion: claiming that the reprints are a contract violation, because they don't follow the Creative Commons license on the content.

For quite some time, Copycense has been banging the drum that setting up Creative Commons as a contractual layer to copyright takes it into dangerous territory that isn't good for copyright law itself or overall public policy. There haven't been too many cases that have tested this point, but it sounds like the GateHouse Media one has the potential to raise certain questions (who knows if we'll actually get answers) about how copyright and contracts relate to each other -- especially within the realm of Creative Commons.

This has been one of my concerns with Creative Commons. Many folks who support Creative Commons licenses are justifiably worried about what happens in cases like the one above concerning promo CDs where the First Sale doctrine gets written out of copyright law via contract. Yet, at the same time, the whole basis of many Creative Commons licenses is based on this same ability to bring contract law into copyright. As much as I like the concept of Creative Commons, this still leaves me worried. The lawsuit itself may not end up challenging this point, but sooner or later, someone's going to do so, and people who think they're on one side of the argument may quickly find themselves on the flip side."

http://www.techdirt.com/articles/20100707/04163310101.shtml