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Kids and Copyright

[Updated with some new info & clarifications.]

A while back I asked Larry Lessig: kids can’t agree to contracts. So isn’t there a problem with sites where kids upload their intellectual property? They can’t agree to the license….

Finally got an answer back from Larry. Here’s my  attempt at a layman’s summary:

  • Kids own intellectual property (IP) they create.
  • Kids can agree to license their IP.
  • Kids can later “disaffirm” any license they enter into, until about one year after they become adults.
    • In California, a special process can be followed to prevent future disaffirmation.

I assume this means that a site could simply later remove the content at the minor’s request, and wouldn’t be held responsible for the fact that others have likely copied that material. (An old joke says, “Taking information off the Internet is like taking pee out of a pool.”)

Andres Monroy-Hernandez (lead developer of the Scratch website) asks an interesting follow-up question: What happens to derivative works in this instance? I imagine you’d have to deal with that on a case-by case basis–and it could get complicated.

I find all this reassuring. I was worried that people posting kids’ content online might somehow be liable for doing so. But if I’m understanding things correctly, it simply means “if they ask you to take it down, take it down.” (Though on the other side of the argument, Steven Hetcher at Vanderbilt argues that contracts between minors and websites that post their content may be “unconscionable” and hence invalid.)

I got interested in kids and copyright because I’m interested in peer production of content, and the learning opportunities  made possible through creating things and sharing them. But from talking with Larry, it struck me that the much bigger issue seems to be the implications that copyright law has for schools. In particular:

  • Schools can’t put student work online without students’ permission, because students own copyright to their own work.
  • A teacher who allows a student to place harmful content about herself online on a school website may be held to have acted negligently. School districts have an affirmative duty to take all reasonable steps to protect their students from foreseeable harm.

Fascinating stuff!

  1. March 18, 2010 at 5:02 pm

    For a long time I’ve been asking this and I couldn’t find a definite answer. Thanks Amy!

    When I posted a question about this on the CC mailing list (http://lists.ibiblio.org/pipermail/cc-licenses/2007-July/005942.html) someone brought up yet another piece to the puzzle: the different legislations across countries. This has come up a few times in Scratch. I remember there was once this parent from New Zealand who contacted us because he was concerned that his daughter’s animations in Scratch were being used by some other kids to create t-shirts (using some of her characters). In this case we didn’t have much to say because it was a different website, but it made me think about how incredibly complicated things get when you have people from other parts of the world. Although, I never know if the laws apply only to the place where the servers are hosted (I believe this came up with online gambling discussions). Also, what happens when websites use cloud computing services distributed across the world.

  2. April 15, 2010 at 3:34 pm

    Essentially, you argue that minors can enter into these contracts, of a sort highly preferred by copyleftists with an agenda, but not other contracts. And, later, if something goes wrong, all a user of that material has to do is say “My bad” and “take it down.”

    This seems illegal on its face and is certainly a disingenuous effort to exert peer pressure on underage “IP” creators to license such “IP” in perpetuity when they’re too young to understand what they’re doing. It’s copyleft peer pressure exerted on kids. Who’s next?

    • April 15, 2010 at 3:38 pm

      Joe, I am NOT a lawyer, but to the best of my knowledge this applies to *all* contracts. Any kind.

  3. April 16, 2010 at 3:38 pm

    Aren’t you special. This entire post has the agenda of exerting peer pressure on people too young and immature to enter into actual contracts to do exactly that. And what, if any, are the repercussions for adults who take advantage of minors in this way? They can just “take it down” on request.

    So who’s the loser here, non-lawyer Amy Bruckma?

    Can’t copyleftists leave vulnerable people alone without constantly barraging them with expectations they give away their “IP” forever in the guise of aiding and abetting a “commons” somebody else defined?

    • April 16, 2010 at 3:50 pm

      Gosh Joe, I’m not understanding what’s upsetting you…. I’m not pushing any agenda at all. This is simply what the laws of the USA specify. Do you think the laws should be changed? I’d be interested in hearing what you’d prefer.

  4. April 29, 2010 at 3:45 pm

    Minors have rights they should not be encouraged to give away for any reason. It’s exploitative. But it’s consistent with Creative Commons ideology, which holds that your rights are the commons’s rights.

  5. May 29, 2010 at 3:38 pm

    I don’t get the whole thing? Do any of you?!

  1. March 22, 2010 at 4:43 pm

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