Occasionally you come across an informative source for information and you want to republish what you find, but you look into the licensing terms and find that the copyright holder’s opinion of how to properly interpret the license is at odds with the license text.

Consider ProPublica; an investigative journal with interesting articles and research. Their FAQ for “Can I republish one of your stories?” says yes: “Unless otherwise noted, you can republish our articles and graphics (but not our photographs) for free” and that their articles are licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 US license. But their page entitled “Steal our Stories” attempts to add bizarre requirements not found in the CC license. Adding more confusion, this page isn’t in sync with their FAQ.

The “Steal our Stories” page includes the following bulleted list of points:

Unless otherwise noted, you can republish our articles and graphics for free. Here’s what you need to know:

• You can’t edit our material, except to reflect relative changes in time, location and editorial style. (For example, “yesterday” can be changed to “last week,” and “Portland, Ore.” to “Portland” or “here.”)
• If you’re republishing online, you have to link to us and to include all of the links from our story, as well as our PixelPing tag.
• You can’t sell our material separately.
• It’s okay to put our stories on pages with ads, but not ads specifically sold against our stories.
• You can’t republish our material wholesale, or automatically; you need to select stories to be republished individually.
• You cannot republish our photographs without specific permission (ask our Communications Director Mike Webb if you’d like to).

Note that you can grab HTML code for our stories easily. Click on the “republish” button to the right of the byline on every story.

We’re licensed under Creative Commons, which provides the legal details. If you have questions, contact our general manager, Richard Tofel.

There is no mention of anything like their “PixelPing” tracking in the CC license they chose (nor is any tracking scheme requirement mentioned in their FAQ). This CC license certainly doesn’t require any republisher to include any tracking mechanism at all. Section 4c of this CC license offers a perfectly reasonable means of giving credit for the work copied. I don’t think one should help people track others reading habits, so I’d object to including such a thing anywhere. Don’t worry, I have not included any tracking software on this blog.

ProPublica doesn’t want you to “sell material separately” from something else yet there is no such restriction against “separately” selling something in this CC license. This CC license restricts distribution “in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation” in section 4b. That restriction has nothing to do with combining this and that. Mentioning a prohibition against selling separately gives the impression that selling copies of ProPublica articles in combination with something else is okay and this appears to conflict with this CC license.

ProPublica wishes to prohibit “automatic” or “wholesale” republication of their articles but this CC license contains no such prohibition. If ProPublica publishes 20 articles each under this CC license, this CC license lets you republish all 20 of those articles automatically, in their entirety, or both.

Whether one may republish ProPublica “graphics” and “photographs” is confusing: the FAQ says yes (“Can I republish one of your stories? Yup. Unless otherwise noted, you can republish our articles and graphics (but not our photographs) for free…”) and the “Steal our Stories” page says no (“You cannot republish our photographs without specific permission…”). It’s also not clear how “graphics” differ from the “photographs”. The license should be the sole arbiter here: if the work includes the graphics/photographs, they ought to be reproducible in accordance with this CC license.

While it’s generous of ProPublica to attempt to allow republishers to make some changes that could be considered a derivative work (section 1b) such as changes which “reflect relative changes in time, location and editorial style” I wouldn’t recommend changing anything further than fair use allows.

It’s also generous of ProPublica to attempt to allow republishers to “put our stories on pages with ads” but that’s not what this CC license says. Furthermore this CC license doesn’t let the licensor tell you which kinds of ads can be shown as ProPublica attempts to do (“but not ads specifically sold against our stories”). I’d figure that if a website reproduces a ProPublica article alongside ads, those ads are (in the language of this CC license) “primarily intended for or directed toward commercial advantage or private monetary compensation”.

Section 8d of this CC license also appears to prohibit adding additional restrictions to the license (“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.”), so it is not clear how ProPublica came away thinking their restrictions were legitimate.

What makes this somewhat unfortunate is that ProPublica could probably get what they want if they work within the limits of this CC license and suggest additional restrictions instead of demanding additional restrictions. Asking republishers to:

• not post ProPublica stories on pages with ads that are “specifically sold against our stories”,
• provide specific links to give proper credit,
• use a non-invasive, privacy-respecting tracking scheme (not PixelPing) to help ProPublica better understand how popular their articles are,

would probably go far enough to meet their needs and avoid presenting a confusing set of requirements which seem to contravene the text of this CC license. ProPublica does a little of this now when they say “You have to credit us ”“ ideally in the byline. We prefer “Author Name, ProPublica.”” but more could be done.

In the meantime, users should use a tool like NoScript to avoid running Javascript from pixel.propublica.org and let ProPublica glean popularity stats from their server logs (which in turn allow you to read their articles via anonymizers you trust).