One lawyer’s thoughts about switching open licences

This story was posted on one of the Creative Commons discussionlists, and it addresses a problem that at one time or another willface any organization using Creative Commons licences or any othercopyleft, open or free content licence: Can we switch our works to adifferent licence?

[There is] a collaborative community that hasbeen around for several years.
They had a couple of separate collections, and one was under the FAL(Free
Art License). They wanted to make everything compatible under CC-BY-SA3.0,
but the FAL is technically *not* compatible.

Then the question was raised with a US-based attorney. His response wasnot
to worry so much – they’re the same in all key ways, and his opinion was
that the intention of the contributors was not concerned with the minor
differences between open, copyleft licenses.

from thispost.

It may be counterintuitive (or, come to think of it, maybe thischaracterizes how people think of lawyers!), but lawyers tend to seeissues like this not in terms of whether you can do something,but in terms of the risk involved in doing it. You want to getout of your lease right away without giving the required 2 monthsnotice? You want to fire an employee even though you may not have justcause to do so? Perhaps you’d like to use a popular song as backgroundmusic on a YouTube video? You might ask a lawyer whether youcan do that, or how you can do it, but the lawyer is probablythinking, What is the risk in doing it? What is the likelyconsequence, and how likely is it?

Knowing this about a lawyer’s thought process helps explain theanecdotal lawyer’s response when asked whether theorganization can switch from the FAL to the CC-BY-SA licence.Technically, no, they’re not allowed to make that switch. But thelawyer is also thinking, how likely is it that one of the authorsinvolved will treat this as a copyright infringement? And what will theconsequences be if they do?

Of course every situation has unique considerations, and you shouldn’ttake this as legal advice for your own similar situation. For what it’sworth, in cases like this, I tend to agree with the lawyer in thestory, and for this reason: The major aspects of the licences, theissues the authors would have had in mind when they agreed to use thelicence, are the same, and are specifically about openlicensing.

That’s what makes cases dealing with open licences different fromalmost any other legal field in questions like this. These licences arespecifically geared toward a new way of dealing with copyright. Yes,there are differences among the licences, and some of those differencesare fundamental differences that would make them very risky toswitch (like switching an NC licence for a non-NC licence, or viceversa? Just don’t do it!). But if there are only minor differencesamong the licences, then, as the operator of the community in thestory, you would need to consider the risk that the sort of person whowould license a work under one open licence would bring acopyright claim against you for switching to a different openlicence that is the same in all but technical aspects.

So we have an author who uses open licences to distribute their workand understands the balance in copyright and the value of other peoplehaving access to that work. I suspect that such an author would be muchless likely to be upset about a switch to a fundamentally identicallicence than, say, a traditional commercial licensor would be if theircopyright licence were switched for a different one.

Every decision like this is a risk. Just how big a risk it is dependson your particular circumstances. You might need a lawyer’s helpsorting that out, and you might not. What you should learn from thisstory isn’t the general rule that licences can necessarily beswitched for similar licences. Rather, it is that in some cases, withsome communities of authors and users, and with sufficiently similarlicences, there may be a simple solution that has a low enough risk foryou.

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3 thoughts on “One lawyer’s thoughts about switching open licences

  1. Chris Watkins says:

    Thanks for this perspective. This makes sense to me – and it also highlights an irony that proponents of open licenses are often greater sticklers for copyright law than people, who might just reuse and say, "Meh, call it fair use…"

  2. Thrawn says:

    I’d say that it makes sense that proponents of open licences are the most concerned about the law.Large corporations are primarily concerned with how to make money out of copyright, and the general public does not usually pay much attention to the subject. Only those who have a specific philosophy about copyright law will care about the technical points.

  3. Chris Watkins says:

    The vast majority of people who contribute to a site like Wikipedia and Appropedia haven’t read the licenses. We know they support openness because of how they’re sharing, but only a small minority would know or care about the technical differences between GFDL, FAL and CC-BY-SA. If they knew more, they’d generally think that some of the restrictions on sharing between the licenses, and the practical barriers to use in printed material are not what they intended.

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