AOL threatens startup for using content released under Creative Commons

creative_commons_bwThere is an interesting legal dispute arising over the use of data licensed under Creative Commons. AOL owns CrunchBase, which is a free database of technology companies, people, and investors; AOL acquired it as part of their deal to purchase the news website TechCrunch. The database, schema, and documentation are all released under the Creative Commons Attribution License [CC-BY]. This seems like a straightforward issue, anyone reusing the database has to attribute and link back to CrunchBase.

This is what a startup called People+ did, they took the CrunchBase data and created an app for Google Glass, producing a “curated directory of people and companies” which allows users to find information about who they are talking to in real time, as well as finding and editing data on people they have already met. It has quite a lot of potential, if Google Glass ever takes off. However, CruncBase apparently had some issues with the manner in which People+ is using its database, and they sent a cease and desist letter demanding that the startup should remove the content from its app.

How can CrunchBase claim that People+ are infringing their copyright if they released the database under an open content licence such as CC? When a  company or individual publishes a work with a CC licence, then they are granting the licensee the right to reproduce, publish, make adaptations of the work, and communicate those to the public. This is a “worldwide, royalty-free, non-exclusive, perpetual” licence grant. As long as they comply with the conditions in the licence (mostly attribution), People+ have the right to make their own version of CrunchBase and to publish that result. Case closed.

But CrunchBase is arguing that their CC licence is actually different. Because they offer the database through an application programming interface (API), CrunchBase claims that there is a set of obligations sitting on top of the CC-BY licence because they are offering a service. As such, there is a separate Terms of Service page with the following conditions:

“CrunchBase reserves the right to continually review and evaluate all uses of the API, including those that appear more competitive than complementary in nature.

CrunchBase provides a specific licensing contract for services that charge for the use of their data. Contact licensing@crunchbase.com

CrunchBase reserves the right in its sole discretion (for any reason or for no reason) and at anytime without notice to You to change, suspend or discontinue the CrunchBase API and/or suspend or terminate your rights under these General Terms of Service to access, use and/or display the CrunchBase API, Brand Features and any CrunchBase content.”

This is a remarkable claim. CrunchBase release their database under a CC licence, but if you access it as a service through and API, then they argue that they can impose restrictions that pretty much annihilate the CC licence, and in fact go against everything that CC stands for.

Hence we enter into the touchy subject of the irrevocable nature of CC licences. The reason why any Creative Commons grant is irrevocable is precisely to avoid situation like the one described above. Imagine that you are writing a book and find an image released with a CC licence and you use it as the cover of your book (not such a hypothetical scenario actually). Suppose then that the author of the image decides to remove the licence (which they are perfectly entitled to do), and then decides to sue you for copyright infringement retrospectively. The meaning of the CC licence being irrevocable means that once a licensee has started using the work with a licence, the licensor cannot turn around and revoke that grant, although they can stop new licensees from using the work under CC.

What CrunchBase has done is to set a layer of conditions that contradict the irrevocable nature of CC licences, they cannot possibly coexist, and one will have to give way for the other. Thankfully, the CC license contains a provision that rules out anything like the extra layer of rights from affecting bona fide licensees. The licence reads:

“8.e. This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You.”

So CrunchBase cannot impose extra restrictions that fall outside of the licence and whatever their Terms of Service states should not bind People+. I am hoping that CrunchBase will see that they don’t have a strong legal argument, and will desist on their plans to litigate. However, it is clear that AOL is not so interested in the legal argument, as the conflict is prompted by commercial concerns. In their statement, CrunchBase states:

“In our view, People+ differed from this category of partnership because they used the complete CrunchBase dataset to create a product that would compete directly with CrunchBase, instead of building on top of it.”

So, they are trying to intimidate a potential competitor who beat them at applying their own product in more innovative manners. However, if AOL does proceed, I would guess that the case would rest on these key points:

  • Can a licensor impose restrictions that contradict the licence?
  • Is there really a distinction between the database, and the manner in which it is delivered (namely through the API), such as would necessitate separate terms and conditions?
  • Is the irrevocable clause contained in CC licences valid?

Hopefully we won’t get a full court case but if we do, it would be interesting to get these questions answered.

ETA: Looking at the API closely, in order to use it users must register, at which point they are presented with the Terms of Use by a click-wrap tickbox. It will be interesting to find out if they think that this supersedes the terms of the CC licence, as they are clearly in conflict. We have a licence versus contract conflict.