Michael Masnick gets a lot of mileage out of a minor point that eventually turns out to be mistaken, but the column, which describes a recent court ruling that Creative Commons licenses are enforcable, demonstrates the twisting and turning that can occur in the whole debate. Why, asks Masnick, is a license like Creative Commons enforcible when something like slapping a 'Not For Resale' notice on a CD is not. Both do the same thing: "it creates a separate license on top of copyright, and then tries to use copyright's defenses against breaking that license." But there is a crucil difference: in the CD case "the proposed restrictions are greater than what copyright seeks to restrict (i.e., not allowing resale). In the Jacobsen case, the reserved rights are less than what copyright allows." That can be a pretty subtle point, which is why we can understand the confusion lawmakers and judges feel on this issue.
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