Friday, January 30, 2009

Forum Selection in Creative Commons Licenses

Users of Creative Common's licenses beware!

Chang v. Virgin Mobile USA, LLC
2009 WL 111570 (N.D.Tex. January 16, 2009)

Texas plaintiffs posted a photo to a popular picture sharing website using a Creative Commons licenses. The photo was then down loaded by an Australian company who used the photo inconsistent with the Creative Commons 2.o license and Plaintiff's wishes. Plaintiff sued Defendant in a Texas court and Defendant moved to dismiss for lack of jurisdiction. While many factors were considered, of particular note is how to court pointed out that the license did not require the license to take place in Texas.

In fact, the Creative Commons license used specifically does not contain either a forum selection clause or a choice of law clause that would outline where cases should be heard and under what state law a dispute will be analyzed. T he Creative Commons FAQ specifically notes that the selection of jurisdiction in the license

These clauses are commonly used in most transactions to provide some guidance to the parties to know where and under whose laws a dispute will be heard - to avoid problems such as the one in the Chang case.

While I understand the passion for Creative Commons licensing, it is this type of outcome that highlights for me why licensing parties should take a step back and make sure they really understand what they are doing when using these licenses. It also raise the question in my mind of whether licensors should consider making some additions to these terms such as adding in something stating the residency of the licensor, that the license is entered into under the laws of licensor and that all disputes will be heard in the licensor's state/forum.

2 comments:

UnifyUs said...

I would like to continue this discussion and reiterate the need for creators to be careful when putting creative content into the vast world of appropriation and commodification under belief they are fully protected from a Creative Content license. It is important to include forum selection clauses and choice of law provisions into Creative Common's licenses for the sake of protecting oneself from someone stealing your expressed ideas. I find it completely absurd that Creative Commons, a 501c3 that offers free template licenses, does not inform the users of its licenses that they should include these types of contractual provisions. The end user must explicitly understand what he/she wants to do and how he/she wants to be protected. The CC licenses are limited in their operation. Continue to use traditional lawyers and not rely on cheap blanket templates that attempt to convince the user that they apply equally and alike in every jurisdiction.

"Upward and Onward"

Kenneth L. Kunkle said...

Thanks for the comment. I agree that it is a bit of a problem. While I appreciate the objective of CC and other, I must admit that intentional omission of these provisions puzzles me.