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According to CC-BY-SA 4.0, § 3(a)(1), "Attribution. If You Share the Licensed Material (including in modified form), You must: [...] retain the following if it is supplied by the Licensor with the Licensed Material:"

identification of the creator(s) of the Licensed Material and any others designated to receive attribution, in any reasonable manner requested by the Licensor (including by pseudonym if designated);

Does this protect me if the pseudonym I wish to use is deemed to be political, but is otherwise protected speech in my jurisdiction? For example, would a site be able to deny attribution if my requested pseudonym was "Israel is an Apartheid State"?

Philipp
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Evan Carroll
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  • "would a site be able to deny attribution if my requested pseudonym was "Israel is an Apartheid State"?" Normally posting to sites is covered by legal agreements. Does posting with your chosen name violate a legal agreement you made with the site? For example, Quora has/had a real name policy, since your legal name is unlikely to be "Israel is an Apartheid State" you'd be the one violating your side of the agreement if you were to post on Quora. – user32098 May 28 '21 at 10:19
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    It would be interesting to see what happened if they changed their legal name to actually be that one. – o0'. May 28 '21 at 12:59
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    There is no notion of "protected speech" on a privately-owned website. – Robert Harvey May 28 '21 at 13:33
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    Note that when you are posting on a website, they refuse to accept your pseudonym on their site and you demand that your content is attributed under that pseudonym, then the logical next step for them would be to delete all your content from the site. – Philipp May 28 '21 at 14:40
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    @RobertHarvey the speech is still protected, just not from removal by the site's owner. – phoog May 28 '21 at 17:12
  • Note that 3(a)(2) says that the attribution can be done via a url to the necessary info, so they presumably could just include a pastebin link to your pseudonym if they want. – Christopher King May 28 '21 at 17:44
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    Surprisingly, this is not a hypothetical question. The SCP wiki is CC-BY-SA 3.0, and one of its (many) authors goes by the pseudonym "Communism will win." I'm not aware of any dispute arising from that name, however. – Kevin May 29 '21 at 08:11

4 Answers4

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I don't see how.

Remember that a license is a contract where the author gives permission to copy (modify, redistribute, remix, etc) a copyrighted work, provided that the licensee fulfills the stated conditions. If the license is not in effect, then we revert to the default situation under copyright law, which is that the potential licensee has no rights to copy the work. (Not counting particular instances of copying which are permitted under fair use and similar exceptions - I presume that's not what you have in mind, or the whole question is moot.)

In this case, the conditions include that the licensee must credit the author under their chosen pseudonym. The licensee can't get out of that obligation simply because they find it distasteful or objectionable for whatever reason. If they don't want to do it, then they should not accept the license in the first place, and so refrain from copying the work. (Of course, if the author is offering the CC license in hopes of encouraging reuse of the work, then this may not be a desirable outcome for the author, so they might want to think twice about their choice of pseudonym.)

Even if the author's pseudonym were something that would actually be illegal to quote (say, because it is obscene), I don't think it lets the licensee off the hook. A contract with illegal terms is void, so legally it is as if there is no license at all, and we revert to the default in which there is no right to copy.

A question was raised in comments about the word "reasonable". I don't know of case law where this has been tested, so I can only speculate:

  • The context suggests that "reasonable" is intended to refer to the means of attribution (for instance, where the attribution should appear in a piece of source code or documentation), not to the pseudonym.

  • There's a legal principle that the specific governs over the general, and the requirement to credit the author by a particular pseudonym is clearly more specific than the general requirement of "reasonableness". It seems clear that the author, who is the one offering these terms, didn't intend for the general term "reasonable" to render meaningless their request for the use of a specific pseudonym; if they had, why would they have bothered to put it in?

  • On the flip side, there's the principle of contra proferentem, that ambiguities in a contract should be resolved in the favor of the party that didn't draft it - here, the licensee. But it's hard to argue that this is really ambiguous; it seems quite clear what the author wants.

  • Of course, the author can circumvent the whole issue, if they're worried, by licensing the work instead under a modified version of the CC license in which the word "reasonable" is removed. After all, there is nothing particular magical about CC's language: the contract is whatever the author and the licensee agree to, and they're just using the pre-written CC license as a convenience to streamline their negotiations.

Nate Eldredge
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  • "then we revert to the default situation under copyright law, which is that the potential licensee has no rights to copy the work at all" At least in the United States, the default situation is that you have the right to make any copies reasonably required for the normal use of the covered work. For example, you can play a DVD even though that makes a copy in your DVD player and on your television. – David Schwartz May 28 '21 at 07:46
  • @DavidSchwartz: True. I assumed those exceptions weren't relevant here, but I've added a note. – Nate Eldredge May 28 '21 at 07:51
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    They're not directly relevant since the question talked about "sharing" the code, which almost certainly would mean copying not related to normal use. I just didn't want your statement to get taken out context. I think it's still slightly misleading to refer to this as an "exception". When you buy a book, the fact that you're allowed to read it doesn't strike me as an "exception" to anything, it's a right of possession. – David Schwartz May 28 '21 at 07:52
  • If this is allowed under the license terms, what doesn't count as reasonable, in your estimation? – Azor Ahai -him- May 28 '21 at 14:07
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    @AzorAhai-him- Imagine a license that says you must purchase a highway billboard with the attribution. That seems unreasonable to me. – Barmar May 28 '21 at 14:45
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    @Barmar I suppose I read it as any reasonable attribution, not method, but I could see that might be what they mean – Azor Ahai -him- May 28 '21 at 15:13
  • @AzorAhai-him- Now that I see the context "retain the following", I think you're right. – Barmar May 28 '21 at 15:41
  • @DavidSchwartz: it's a right of possession. - tell that to Blu-Ray and DVD vendors who insist on encrypting the content to make it harder for people to watch (without having paid for a licensed player, either software or hardware). This crap is legally backed up in the US by the DMCA. (The formats don't require encryption: unencrypted video DVDs are perfectly possible and playable by normal players. And it's arguably not illegal to distribute code to work around the encryption, but IIRC may be illegal to use said code to actually play DVDs you own with Free software.) – Peter Cordes May 29 '21 at 05:33
  • @DavidSchwartz: So while I don't disagree with your basic premise that being able to read something that's already in human-readable form, that you legally have access to, should be fine, copyright law has been driven by corporations who probably wish they could make everyone wear a DRM helmet that only lets you hear/see content you've paid for. (Although most of the problem they're trying to solve is people viewing illegally-shared copies, not actually to stop people from reading / watching stuff they do own. The DVD-player sales aspect is separate, I think.) – Peter Cordes May 29 '21 at 05:37
  • Re: "there is nothing particular magical about CC's language: the contract is whatever the author and the licensee agree to": This is true, but it's worth noting that much of the power of CC-BY-SA comes from its critical mass of licensed content. If your custom license is similar to CC-BY-SA but not actually compatible with it, then that may limit people's ability to combine it with CC-BY-SA content, and thereby make it impractical to use it in many ways that people otherwise would. – ruakh May 30 '21 at 00:48
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    @Barmar CC-BY-SA do not have such requirement and thus anybody using this particular license indeed can't demand you to do that. However if somebody wrote other license that says that, you can't just get away with "nah, I think not". You either accept it and do what requested, or reject and go away. The only way to skip over some particular part of license, accepting the rest and still be within the law is when some local law explicitly permits you to do that, not by you arbitrary feeling that any part of it is "unreasonable". – Oleg V. Volkov May 30 '21 at 03:09
  • @OlegV.Volkov "manner requested by the licensor" suggests to me that this is something they request separately, not something in the wording of the license itself (since we're talking about the license itself, and it just states that the request must be reasonable). This clause of the license authorizes the licensor to state the form of attribution required, and the licensee must agree in order to redistribute. – Barmar May 30 '21 at 21:10
  • @OlegV.Volkov What's the point of the "reasonable" qualifier if it's not a restriction on the licensor. Would the license become null and void if it contained unreasonable terms like my hypothetical? – Barmar May 30 '21 at 21:12
  • Re: "I don't see how." Perhaps by concluding that such a nickname is not a reasonable manner to be identified. But that it is instead what the OP describes it to be: a demand to make an utterance. The license only requires a licensor to accommodate reasonable requests to be identified. – grovkin May 31 '21 at 07:47
  • @Barmar Yes, it will become void. And that means "All Rights Reserved" in pretty much every jurisdiction I know, not "go ahead and do whatever you please". – Oleg V. Volkov Jun 03 '21 at 06:52
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I read the quoted section in the question as:

identification of the creator(s) [...] in any reasonable manner

i.e. the identification must be reasonable. For example, you may wish to use 16MB of Zalgo text as your pseudonym. That would likely not be considered reasonable. I don't think adding an unreasonable name requirement would be a valid way to escape the irrevocable CC licence grant (in order to get content deleted).

To your other points:

The Creative Commons FAQ section on attribution says (emphasis added):

All CC licenses require users to attribute the creator of licensed material, unless the creator has waived that requirement, not supplied a name, or asked that her name be removed. Additionally, you must retain a copyright notice, a link to the license (or to the deed), a license notice, a notice about the disclaimer of warranties, and a URI if reasonable. For versions prior to 4.0, you must also provide the title of the work. (Though it is not a requirement in 4.0, it is still recommended if one is supplied.)

CC licenses have a flexible attribution requirement, so there is not necessarily one correct way to provide attribution. The proper method for giving credit will depend on the medium and means you are using, and may be implemented in any reasonable manner.

Moving on to where and how the attribution is located:

From Can I insist on the exact placement of the attribution credit? in the same FAQ (emphasis added):

No. CC licenses allow for flexibility in the way credit is provided depending on the medium, means, and context in which a licensee is redistributing licensed material. For example, providing attribution to the creator when using licensed material in a blog post may be different than doing so in a video remix. This flexibility facilitates compliance by licensees and reduces uncertainty about different types of reuse—minimizing the risk that overly onerous and inflexible attribution requirements are simply disregarded.

and from How do I properly attribute material offered under a Creative Commons license?:

Additionally, you may satisfy the attribution requirement by providing a link to a place where the attribution information may be found.

Taking your contributions licenced to Stack Exchange Inc. under CC BY-SA as an example, this would mean a reasonable attribution would be providing your user id on a post that links to your profile, where all required information lies, at your discretion. This could include your preferred pseudonym "Israel is an Apartheid State". There is nothing in the CC terms that would allow you to choose the form of the link used.

You can find the complete legal text (expected to reflect the FAQ) at e.g. Attribution-ShareAlike 4.0 International.

Addressing your question directly in light of the above:

Does this protect me if the pseudonym I wish to use is deemed to be political, but is otherwise protected speech in my jurisdiction? For example, would a site be able to deny attribution if my requested pseudonym was "Israel is an Apartheid State"?

It protects you to the extent that the licensee has to preserve the name of the creator (among other things). How exactly that is provided is up to them.

  • It would seem if the method of attribution was a link rather than my name, then I would get to pick the link I want for attribution and it could go off of the site. Or, in my case be Isreal-is-An-Apartheid-State://Support_Boycott_Divestment_Sanctions_Now – Evan Carroll May 28 '21 at 17:31
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    "you may wish to use 16MB of Zalgo text as your pseudonym. That would likely not be considered reasonable." By what law or clause in a license? If you personally consider this "unreasonable" - do not accept license and go find yourself something else to copy/use. Problem solved. – Oleg V. Volkov May 30 '21 at 03:03
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    @OlegV.Volkov: This answer brings up the question of someone e.g. changing their user-name on SO (or a related situation), after someone is already sharing their content attributed a different way. So it might be cumbersome or undesirable to ditch the content. In that case, can you continue to use the content under the previous license terms, i.e. with attribution to the previous form of the name? I would hope and assume so, but I'm certainly not sure. – Peter Cordes May 30 '21 at 08:10
  • @PeterCordes I'm only commenting on one specific quote from the answer. – Oleg V. Volkov Jun 03 '21 at 06:54
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Yes and no.

Yes: If you post something to a personal website or blog, you can use whatever license and requirements (as long as they are legal) that you like. If you require people to strip naked and dance in Antarctica, then that’s your requirement.

No: If you are posting to a website you don’t own, they will have requirements you have to agree to before they will accept your post. You can’t in the post or elsewhere repudiate those requirements (although you could add different requirements where not licensed under the terms of the website). In particular, SE doesn’t give attribution by user name, it gives attribution by a link to your user id aka account and displays your user-name when doing so. If SE were to decide that jmoreno was unacceptable and just attribute by https://law.stackexchange.com/users/4869 and show 4869, that would have to be acceptable. And they get to decide what acceptable user names are for their accounts (again, that is specified in the TOS).

If you could repudiate the agreement and unilaterally impose new distribution requirements, there would be nothing stopping people from adding requirements that displaying your post requires paying a million dollar per display royalty payment. Your desire to require that your attribution be something other than what their system produces, is no different.

jmoreno
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To address a comment by OP on Paul White's answer, about the paragraph

"and from How do I properly attribute material offered under a Creative Commons license?:"

Additionally, you may satisfy the attribution requirement by providing a link to a place where the attribution information may be found.

The comment was:

It would seem if the method of attribution was a link rather than my name, then I would get to pick the link I want for attribution and it could go off of the site. Or, in my case be Isreal-is-An-Apartheid-State://Support_Boycott_Divestment_Sanctions_Now – user157251 13 hours ago

Even on this case, the License states "a link to a place where attribution information may be found". Note: "a" link to "a" place, not "author's" link to "author's" place.

The licencee may thus put a shell link "attribution.com", where information about where the original attribution is located (pseudonymous and all) may be found.

This way, an unreasonable attribution manner request (a random named URL) may be reasonably attributed (by a normal URL pointing to the author's desired URL).

David Siegel
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Luiz Silveira
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