Is a license agreement lurking?

Even when a work is in the public domain, it might be the subject of a license agreement that tells you what you can and can’t do with it. A license is permission to do something that, without the licensor’s permission, you wouldn’t be allowed to do. In the world of copyright, a license would permit you to do something (copy, display, perform, etc.) that, otherwise, only the copyright owner is allowed to do.

But what if the licensor has no copyright in the work? Public domain works are public property, in a copyright sense ... so can a licensor use a license agreement to prevent you from doing what federal copyright law allows?

Can a license agreement restrict your use of the public domain?

First, let’s get something straight. The owner of a public domain work (the thing itself) can control access to it because they have property rights in the thing. There’s no law that says once a painting or other work is in the public domain, a private owner (or steward such as a museum, library, or archive) must give the public access. They may charge you a fee for access to the work, and fees for copies of the work. That’s perfectly legal.

But ...

In increasing numbers, owners of public domain works are turning to contracts (in the form of license agreements) to control the use of their works. What started with shrinkwrap licenses for off-the-shelf computer software (to which users “agree” by opening a package) has developed, with the Web, into ever-present clickwrap and browsewrap license agreements.

You’ve seen clickwrap agreements, I’m sure (you just might not call them that). For example, you want to install some software or access some information online, and you’re presented with a dialog box full of terms and conditions. By clicking “I Accept” or “I Agree” — or maybe just “Yes” — you can complete your transaction. If you don’t agree you don’t click, and you don’t complete your transaction.

So-called browsewrap agreements are a different story. Unlike clickwrap agreements, you might not even notice a browsewrap. Browsewrap agreements (commonly called “terms of service” or “terms and conditions”), which purport to govern your use of a web site, are usually available through a link in the footer of a web page. You’re not required to review the agreement before using the site, and you’re not required to show your agreement in any way (by clicking an “Accept” button, for example). By accessing the site you’re presumed to have accepted the terms and conditions, whatever they may be.

And what are the terms and conditions, usually? Well ... typically, there’s a lot of stern language warning you about copyright and other proprietary rights. And usually you’re prohibited from anything but fair use (and many times, fair use isn’t even mentioned). There’s almost always a prohibition against commercial use. (Since when did the public domain become the noncommercial-use-only domain?) When applied to public domain content, these “agreements” become a kind of back-door copyright.

But are these licenses enforceable?

Are license agreements that restrict your use of public domain materials legally enforceable? The short answer, unfortunately, is: it depends. (Not satisfying, I know.)

Many copyright experts think they shouldn’t be legally enforced, because they achieve copyright-like protection for works that don’t, or no longer, qualify for copyright protection. But it’s the courts that matter ... and they have held that shrinkwrap and clickwrap licenses are valid and enforceable contracts, even if the subject of the license is in the public domain. That’s because, the courts say, the user agreed to the contract terms. And, you see, a contract is a private agreement between the parties ... as opposed to copyright, which creates rights against everyone (no contract necessary).

The case that started the "contract as copyright" ball rolling is ProCD, Inc. v. Zeidenberg, 86 F.3d 1147 (7th Cir. 1996). The ProCD case came about when grad student Matthew Zeidenberg bought a business telephone database on CD, called SelectPhone, from ProCD. Zeidenberg posted the directory listings on a web site, for a price that was lower than ProCd’s. Telephone listings are not copyrightable, but the CD included a license ... which Zeidenberg had to click through in order to install the software. The license prohibited copying. ProCD eventually found out, and sued him.

Zeidenberg lost. Although the telephone directory listings that Zeidenberg copied were not protected by copyright, the Seventh Circuit court of appeals decided that the license agreement was valid and enforceable as a contract. Zeidenberg accepted the contract, the court said, by clicking through. Bottom line: ProCD achieved copyright protection for unprotectable facts through a standard (as in not negotiated) license. (If you’re so inclined, you can read the case here.) Many courts have followed this ruling.

So what would happen if you violated the license?

What happens if you do one of the things the license prohibits? Can the owner of the public domain work sue you for copyright infringement? No. If the work is in the public domain, the owner of the public domain material won’t have a copyright infringement case against you ... but they can sue you for violating the license agreement. (That would be a breach of contract claim, and it would be governed by state law.)

As you can probably guess by now, whether the owner would win would depend on whether you agreed to the license. The cases indicate that where you’ve clearly shown your assent, as in a clickwrap license like the one in the ProCD case, the owner will win. So the moral of the story is: be careful what you click.

But what if there’s nothing to click?

The enforceability of browsewrap agreements is not a settled issue. Another appellate court held that if a user can install software without clicking, “I agree,” then the user has not agreed to anything — there is no contract. See Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002), which you can read here if you’d like.

This case has implications for web site “terms and conditions” (also called "terms of service"). It’s not clear that merely posting “terms and conditions” — and not requiring visitors to show that they agree in some manner — creates a contract with site visitors. While it’s widespread practice to post such terms and conditions, the practice of not reading them is also equally widespread. I imagine that many people don’t notice those little links at all. Plus, they’re at the bottom of the page, where some visitors may never scroll.

But, beware ...

Browsewrap agreements have been found to be potentially enforceable in the context of a business data mining its competitor’s web site. See Register.com, Inc. v. Verio, Inc. 356 F.3d 393 (2nd Cir. 2004), here, and Pollstar v. Gigmania Ltd., 170 F. Supp. 2d 974 (E.D. Cal. 2000), here.

Courts haven’t provided a clear answer to the question of enforceability of browsewrap agreements ... but violating one could still get you sued.

So what can you do?

Well ... if you can avoid license agreements, by all means do so. But that’s probably impossible, practically speaking, since (as I said above) they’re everywhere. So, even if you believe contracts that shrink the public domain should not be enforced (as I do), you’ll put yourself at risk of a lawsuit if you agree to, and then disobey, the terms and get caught.

Don’t agree to anything you don’t intend to abide by. Look before you click or otherwise expressly indicate your agreement. Speaking of which, a contract is enforceable only against a person who agrees to it. So... if you can get the public domain material without making any promises or agreeing to any terms, do it. Just remember that the law isn’t settled on this issue.

Oh, and there’s more you can do. You can complain. When you come across blatant attempts to privatize the public domain via contract, publicize it. Blog about it. (Or tell me and I’ll publicize it.) The more people know that the public domain is being looted in this way, the more likely the practice can be stopped.

Let’s end with an all-too-common example

Dover Publications sells many books and CDs of public domain clip-art, offering an impressive selection of images. But even though the images are in the public domain, Dover places use restrictions on them. Here’s the restriction notice from Women: A Pictorial Archive from Nineteenth-Century Sources (Jim Harter, ed., 1982):

This book belongs to Dover Pictorial Archive Series. You may use the designs and illustrations for graphics and crafts applications, free and without special permission, provided that you include no more than ten in the same publication or project. . . . However, republication or reproduction of any illustration by any other graphic service whether it be in a book or in any other design resource is strictly prohibited.

Baloney. The 19th century designs in the book are in the public domain — the cover even says they’re copyright free. The individual designs are public property, and the act of purchasing the book does not create a contract. It’s pretty darn unlikely that these restrictions are legally enforceable. Unfortunately, this type of overreaching by publishers is all too common.

But listen, while you may copy and use the individual designs in the book, you may not copy Dover’s selection and/or arrangement of the designs. Which brings us to our next topic ...

Even when a work is based on a preexisting public domain work, or is made up of preexisting public domain works, part of the work might still be protected by copyright. Let’s see how that works.