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Say that Company A is an online platform which hosts user-generated content, and to do so Company A requires in its ToS that users license said content publicly under Creative Commons License X.

Further than that, say that, at some point, Company A releases those contributions under a more permissive license, Creative Commons License Y, in a way that goes beyond the permissions granted by the copyright holder. (For the purposes of this question, assume that (i) the licenses are incompatible, and (ii) the ToS does not give permission to license the content under license Y.)

And, moreover, say that some third party, Website B, pulls that content and hosts it, with correct attributions, under License Y.

Where does that leave everybody in terms of license violations? Company A is definitely in breach of the license terms for its incorrect distribution of the works, but is Website B liable for its redistribution under License Y, given that they got it from Company A, making the fair assumption that their distribution under those terms was appropriate? Is Company A liable for the downstream redistributions of the works by other actors? What recourse do the copyright holders have to stop distribution of the works under License Y from those downstream actors?

Please keep answers general as regards to the licenses X and Y -- the change could be something as noxious as going from CC BY-NC-ND to CC BY, but also a smaller violation, such as a switch to a later (but incompatible) version of the same license.

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    For the “later but incompatible” case, do note that many Creative Commons explicitly declare later versions to be compatible. They have a provision that allow changing to a later version of the same license, so redistributing under a later version would not be a violation at all. For example, in CC BY-SA 2.0 and CC BY-SA 3.0, this permission is granted by clause 4.b.
    – Gilles 'SO- stop being evil'
    Oct 3, 2019 at 7:10
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    @Gilles That's (almost certainly) a misreading of that clause, which applies explicitly and specifically to Derivative Works, which is not the case I'm discussing here. Similarly, for your first link, note the language "Your contributions to adaptations of License X materials" on every section; I'm not talking about distribution of any adaptations of any works, I'm asking about distribution of the works themselves.
    – E.P.
    Oct 3, 2019 at 7:35
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    However, please treat the incompatibility as a premise here. I would like to keep the discussion manageable and modularized; we can discuss its applicability to specific situations elsewhere, but here I'd like to understand the downstream consequences of any incompatibility.
    – E.P.
    Oct 3, 2019 at 7:35
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    I'm going to assume there's a reason that nobody has named Company A, which is a network of websites you (the person reading this) are reasonably familiar with.
    – user253751
    Oct 4, 2019 at 9:05
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    @immibis This question was sparked by a specific situation, but I don't see how any details of that situation beyond the description I've already given would be helpful or constructive.
    – E.P.
    Oct 4, 2019 at 9:08

2 Answers 2

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Company A is certainly liable for their misrepresentation of licensing terms. However, that does not legally excuse Company B's downstream distribution under those wrong terms; they have (accidentally) committed copyright infringement as well.

In the United States, copyright infringement is a strict liability tort, meaning that Company B's ignorance and lack of ill intent is not automatically a defense. Company B could provide a defensive case based on the statutory defense of innocent infringement, however, which could reduce or (rarely) eliminate the amount of damages. In any case, it's certainly possible for a court to enjoin Company B to cease distribution immediately.

Even if someone successfully collected monetary damages from Company B for their accidental infringement, Company B could very likely succeed in collecting that money back by suing Company A for their blatant misrepresentation of license terms that caused harm to Company B. (That's not a great situation -- the legal system is not fast or cheap -- but it does seem like an option likely to succeed in court.)

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Company A violated the license by redistributing in a manner they were not licensed to do so when they changed from CC X to CC Y.

Company B thought they were doing a permitted thing by taking what turned out to be incorrectly / illegally licensed, but thought doesn't count, so they have no right to redistribute and so they too would be in violation of various copyright laws for any redistribution. However in a just world they would only be told to cease and desist, and not face any penalties unless they do not C&D.

This is like buying a car off Craigslist for $1000 and going to register it at the DMV and finding out it was stolen a few years ago when they run the VIN on it. You lose the car, you probably lose $1k, and you get nothing. But at least you don't go to jail for grand theft auto either :)

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    It's similar to the crime of receiving stolen property: You have to know that it was stolen to be guilty.
    – Barmar
    Oct 3, 2019 at 18:20
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    You have to know it was stolen to be guilty, but you also don't have automatic right to keep the stolen property once you found out.
    – Ben
    Oct 4, 2019 at 6:12
  • I am a layman to these things, what is C&D? Thanks
    – Pedro A
    Oct 5, 2019 at 0:52
  • @PedroA Cease & Desist
    – Pace
    Oct 5, 2019 at 3:30

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