Creative Commons License Flaws Claimed

bloosqr writes "Dan Heller, in a series of three articles, claims to have found a number of problems with the Creative Commons license, particularly within the realm of photography. In the first article he states there is a problem with people relicensing copyrighted work under the CC license and having subsequent users of that copyrighted work sued by the original owner. In the second article he fleshes out these ideas and states that there is an increased risk of being sued if you use a CC license. Finally, in the third article, he states that people can 'game the CC license' for profit, by suing people who use your CC'd work which you have subsequently revoked from the CC license. This series of blogs has generated a fair amount of discussion on several photography forums, and I would like for the Slashdot community to clarify matters."

Comments

Clarification please..

[Improv]

Which CC license is he talking about, and which of them actually permit revocation?

Re:Clarification please..

[Anonymous Coward]

Which CC license is he talking about, and which of them actually permit revocation? A bare license (i.e. not a contract) is generally revocable at any time by the licensor. Second or third parties do not get to "permit" or "not permit" revocation, though estoppel may come into play under some circumstances.

Re:Clarification please..

[Anonymous Coward]

though estoppel may come into play under some circumstances. That's a bit technical from the layslashdotter's perspective, but do you mean that a person who revoked a CC license, and then sued someone who kept using the material, would likely lose their lawsuit if they didn't first take reasonable steps to inform a previously-licensed person that the license had been revoked?

Re:Clarification please..

[Thansal]

I still fail to see the problem.

Don't you have to first present the person that is infringing on your IP notice to stop before you can sue?

Re:Clarification please..

[Anonymous Coward]

Read The Fine Article.

It is a very good article, something that doesn't quite fit on /..

Re:Clarification please..

[SharpFang]

none, but with no registration process there's no proof the work was ever under CC.

1. People ILLEGALLY claim copyrighted works (by others) are CC, and other people who use them in good faith find themselves violating copyright.

2. People ILLEGALLY remove CC from their works, but the burden of proof that the work was ever CC is on whoever made the derivative works or copies.

"1" is "man in the middle attack", "claim it's yours and it's CC"
"2" is "bait and switch", "I'd swear it was still CC yesterday!"

Re:Clarification please..

[Anonymous Coward]

That's about right. Not just taking reasonable steps to inform them but also giving them reasonable time to amend their activities accordingly. Giving a five minute notice would be unlikely to be enough. A month would probably be plenty in most cases.

Re:Clarification please..

[KDR_11k]

I don't think so if no license has existed. Of course after a license has been in place the rules probably change.

Re:Clarification please..

[KDR_11k]

I would assume someone perpetrating #1 would be liable for perjury or something and the derivative victims would be able to recover damages from him.

Re:Clarification please..

[Anonymous Coward]

Why would estoppel come into play?

IANAL, but I believe estoppel is contract law (as opposed to licensing).

Even if it did cover licensing, there has been no direct promises either way (a public license is indirect by its very nature). So arguing that it was reasonable to rely on an individual's actions (that are legal under copyright law) who you never met, or spoke to, would be pretty difficult.

Re:Clarification please..

[SharpFang]

IF the person is caught and doesn't use fake ID.

The work based off the copyrighted works has to be discarded. The license reputation suffers. There's a lot of bad blood before the problem is explained. There are damages that court order won't repair.

Re:Clarification please..

[elliottb]

his argument that copyrighted works are relicensed under cc is true of copyright works too. just look at all the movie clips that go on youtube. you think non-cc photographs are somehow exempt from that? the claim that there is an increased risk of being sued if you use cc is an interesting one. i don't see how you are any more or less likely to be sued using something under cc. if it is wrongly licensed then yeah, you might be open to being sued. but hey, if you use any all rights reserved material without permission you are very open to being sued. at least cc, when used correctly, gives certainty. and the final point, about revoking a of a licence and then suing: any legal use of the material under the licence that was on the work IS STILL PERMITTED. simply because the licences are NON REVOKABLE. if you wish to stop offering a copyrighted work under a CC licence you can remove the licence notification. but any use of that work that was done under the licence is still legal. so you can't sue.

How often does that happen?

[autophile]

...there is a problem with people relicensing copyrighted work under the CC license and having subsequent users of that copyrighted work sued by the original owner

First, how often does that really happen?

Second, why is this a problem with CC? It would be a problem with anyone placing a copyrighted work under any license, or even claiming copyright on a work copyrighted by someone else. It's more a problem with copyright and the legal system.

--Rob

Re:How often does that happen?

[FellowConspirator]

It's not a matter of relicensing a copyrighted work. All works are copyright until they are explicitly placed into, or statutorily pass into the public domain. Licenses don't apply to public domain works since no license is ever required for something in the public domain.

A Creative Commons license can only be applied, therefore to a copyrighted work. Further, the license does not waive the copyright or place the work into the public domain. The copyright is fully intact.

His argument that you can game the license by licensing the work, then revoking the license doesn't hold either. Once the work has been licensed under Creative Commons, the license is good indefinitely so long as its terms are met. You could decide to license the work under other terms later, of course, but the Creative Commons license would persist (you can't alter the terms after the terms are agreed upon and accepted by both parties). In the case of most of the licenses, you couldn't effectively terminate the licenses either. Once you've given permission for others to distribute a work under the same license terms, you've effectively passed on the authority to license the work under those terms. Even if you don't want to distribute the work under a CC license anymore, you've already granted the right for others to do so and can't revoke that right until they violate the terms of the license.

If someone takes a work that they don't have copyright to and distributes under a CC license, this is not "relicensing". That's simple fraud. There's no problem there, you would do the same thing as you would if someone took a non-CC work and distributed indicating it was in the public domain: namely sue the initial violator for willful infringement and any other parties distributing copies (generally speaking, if the court finds a party copied a work in good faith believing it to be public domain or licensed and halts distribution after notification, that party will generally be let off the hook).

There's nothing wrong with Creative Commons that isn't wrong with the implementation of copyrights in general (particularly in the USA). The same problems exist with all other licensing schemes as well.

Re:How often does that happen?

[Sancho]

His argument that you can game the license by licensing the work, then revoking the license doesn't hold either. Once the work has been licensed under Creative Commons, the license is good indefinitely so long as its terms are met. You could decide to license the work under other terms later, of course, but the Creative Commons license would persist (you can't alter the terms after the terms are agreed upon and accepted by both parties). In the case of most of the licenses, you couldn't effectively terminate the licenses either. Once you've given permission for others to distribute a work under the same license terms, you've effectively passed on the authority to license the work under those terms. Even if you don't want to distribute the work under a CC license anymore, you've already granted the right for others to do so and can't revoke that right until they violate the terms of the license. Of course, how do you prove that the work was ever CC? Print out the web-page proving it? It can be faked.

Again, though, this isn't a problem specifically with CC licenses. It's a general problem with trying to apply contract law in this manner--where the parties never actually form an agreement and sign it.

Re:How often does that happen?

[trawg]

It happened with nullsoft Waste, a p2p thing that was released by the Nullsoft guys then later yoinked by parent company AOL when they found out about it.

I have vague recollections of parts of it being used in a commercial product (I think from some motherboard manufacturer?) which was similarly later pulled, though I'm not sure why.

It is interesting because it was software that was released under the GPL by a company, and then later revoked. I wonder if this has been tested in court at all?

Re:How often does that happen?

[misomian]

Of course, how do you prove that the work was ever CC? Print out the web-page proving it? It can be faked.

There's a low-cost means to help establish proof. Print the web page from a public internet-connected computer at a library or internet café. Browsers on such systems are typically set up to automatically print the site URL and the time and date of printing on each page. Take the printout, put it in an envelope, and mail it to yourself. After you receive the envelope, file it away someplace safe and never open it. If you get sued, submit the unopened, postmarked envelope as evidence of the CC license being in effect when you found the image. If the litigant claims you could have faked the printout, point out that modern printers embed unique codes in every page printed identifying the specific printer which was used. If necessary, have the printer owner provide a sample page from the same printer and show that the codes are a match. Of course, if the printer is no longer in the owner's possession, things get thornier, but even then you may be able to locate other papers somewhere at the location (flyers, signs, etc) which were produced on the same printer at some point, or find a friendly frequent patron of the same place who prints regularly and can submit a matching print sample from their personal archives. It's not foolproof, but considering the total investment is less than a dollar and could save you thousands of dollars in the future, I'd say it's worth doing.

Re:How often does that happen?

[WNight]

Printing the page would work - not rock-solid, but if you have a history of doing this diligently and can show proof it'd go a long way. Like an inventor keeping a dated workbook. Sure, you *could* have rewritten the entire logbook to make changes, but it's less likely. No legal weight so to speak, but every bit of supporting evidence helps. This only applies though if it'd be hard to fake - leaving blank pages for this purpose would spoil it.

Mailing it to yourself is 100% useless. Nothing stops you from mailing unsealed envelopes and filling them later, so nobody trusts this.

Re:How often does that happen?

[misomian]

Diligence with printing regularly is irrelevant. By printing at a public terminal, one is relying on the neutrality of the establishment where the printing is done, not one's own history or reputation. And saving blank paper to stick in a printer later would accomplish absolutely nothing, as the coding is placed there by the printer itself, it's not present on the paper before that point. (Although, at the fiber level, different brands and lots of paper may be distinguished, but that's less helpful.) I never said mailing would stand on its own. As you said yourself, every bit of supporting evidence helps. Even if not sufficient proof by itself, together with the printing it would cast doubt on the plaintiff's assertions. Better than mailing, or even in addition to it for extra safety, would be notarization. Some banks offer notary services for free to account holders. While a notary can't certify that the contents of the printout are true, they can certify the date it was shown to them. If such a service isn't available free or at least very inexpensive, one might as well buy images from a reputable stock dealer instead, unless no suitable substitute exists or one is choosing a Commons image as a matter of principle.

Re:How often does that happen?

[WNight]

This isn't CSI, you'd have to pay for those tests...

Notarizing is a good idea, but you'd want to make sure they were notarizing that the site appeared to be offering photos under a CC license, not that you merely had a print-out purporting to be of that website.

Re:How often does that happen?

[misomian]

Of course there are costs associated with forensivs. But if the defense makes a strong enough case that the plaintiff brought the case in bad faith, the plaintiff will likely have to eat the defense's legal fees and associated costs. Of course, I'm sure plaintiffs in these cases wager on things not going that far, expecting that they will get a settlement from their victims, most of whom will just want to make the nightmare go away as easily as possible. It would be beyond the duties of a notary to declare that a printout appeared to be an accurate representation of a website. All they can do is attest that you presented said material on a certain date and affirmed that the material was genuine. The date is what's important, because the evidence that it is a genuine representation of that website on that date is a matter to be demonstrated by other means, such as borrowing the reputation of a library by using their printers instead of your own. Ultimately, though, what we really need is a safer and more effective means of licensing free material than is currently provided by the Creative Commons. I'm glad that discussions like this one are bringing attention to the problems which need to be solved.

I Must Be Confused ... No Backsies!

[eldavojohn]

Well, I'm familiar with criticism of the creative commons license from people like Dvorak or Debian but there's something here that is confusing to me. The idea that you can un-creative commons something is ... not right.

Finally, in the third article, he states that people can 'game the CC license' for profit, by suing people who use your CC'd work which you have subsequently revoked from the CC license. I haven't read the article, but sounds just wrong to me.

You know, I thought that if you license it as creative commons then all derivative works and the like from that work must also be CC ... although I think I am wrong about that last part, I am so used to and in love with the GPL that it's just how I think.

Well, from the faq:

What if I change my mind?

Creative Commons licenses are non-revocable. This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license. You can stop distributing your work under a Creative Commons license at any time you wish; but this will not withdraw any copies of your work that already exist under a Creative Commons license from circulation, be they verbatim copies, copies included in collective works and/or adaptations of your work. So you need to think carefully when choosing a Creative Commons license to make sure that you are happy for people to be using your work consistent with the terms of the license, even if you later stop distributing your work. So seriously, you may well be right with the first two issues but this third concept is foreign to me and I'm sure many lawyers would be interested in how you 'revoked?' a license. What the?

I think a lot of these issues would be resolved by making it "no backsies, all derivatives must be CC, tough if you want to use them no lawsuits plz k thanx bye." And that's the best legalese I know.

Re:I Must Be Confused ... No Backsies!

[Anonymous Coward]

You probably should have read the article then. The author specifically addresses that issue. =)

The general (erroneous) belief is that once you assign a photo a CC-license, it is permanent--that you cannot revoke the CC. Well, that's not precisely true. To explain, let's start with what's on the FAQ on the Creative Commons website:

        Creative Commons licenses are non-revocable. This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license.

The source of the misunderstanding centers around what the CC is attached to. It's not the photo, but user of the photo. Or rather, the terms of use that were in place at the time they acquired the image. The language says, "you cannot stop someone who has obtained your work under a CC license." It's the someone that you can't revoke the license from, not the photo. As you may have seen later in the same FAQ, you can revoke the CC license and "redistribute" the photo, but most people skim over this and forget about it.

All but the unscrupulous photographer, that is. He exploits it. If he withdraws the CC license terms from the photo, then all new users of the image may not use it under the terms of CC. His exploitation of this little-known, misunderstood fact is the nail in the coffin for anyone who uses CC-licensed images at all, ever. Why?

Re:I Must Be Confused ... No Backsies!

[Anonymous Coward]

I skimmed the articles (I didn't read them because they were tedious, boring, and just a tad misguided). The issues being raised, however, do not seem to be specific to the CC license, but to copyright in general.

Yes, if someone releases work under CC for which they do not own the copyright, and you use that work, you are liable. But so is the person who illegally redistributed it under CC. This would be true with any other license; it is never legal for someone to arbitrarily re-release someone else's copyrighted work at all, under any license, CC or otherwise.

Using CC content increases your chance of being sued, yes, but not because the license was CC, but rather because someone else generated that content. Whenever you use any content that someone else generated, under any license, you increase your chance of being sued. This is because the laws governing the issue, and the means of use available, are complicated, not because the CC is fundamentally flawed.

On the issue of revocation; you CAN NOT revoke the CC license on a work after you have released it under that license. You can re-release that same work under a different license (provided you own the copyright on it, of course), but the copies you had previously released under CC remain under CC. So the point is moot.

Copyright law is a mess, and it is only getting messier. That about sums it up, I think.

Re:I Must Be Confused ... No Backsies!

[xerph]

You can re-release that same work under a different license (provided you own the copyright on it, of course), but the copies you had previously released under CC remain under CC. So the point is moot.

Not quite. As stated in the article, under US copyright law the burden of proof is on the defendant to prove that infringement did not take place. Proving that you legally obtained an image where no financial records likely exist would be quite the challenge for most people to overcome:

The next critical piece to this that's important to understand is that, in court cases involving copyright infringement, the burden of proof is on defendants: they have to show where they got the image and provide evidence of it. If a claim of infringement is made, the onus is entirely on the defense to establish innocence, not the photographer to prove guilt. (After all, a photographer can't possibly know where someone got his image.) And, as virtually all savvy photographers know, most people who get free images (whether CC or not) almost assuredly have no recollection where they got them, nor is there a paper trail for providing this. It is only when a company pays for an image can they go back to accounting records and pull up receipts and provide proof.

Re:I Must Be Confused ... No Backsies!

[Bazman]

Here's his make-money-fast scheme:

1. Register your images with the Copyright Office (think this is a US thing)
2. Stick your images on a web site with something like a CC-attribution license.
3. Wait for people to use your images.
4. Remove your images from the web site.
5. Pretend they were never CC-licensed.
6. The old 'switcheroo'. Produce a commercial license and a nice payment chart.
7. Sue users.

  The problem is that the burden of proof is on the users to show they got it legally, and if you wipe all traces of your CC licensing from the internet then they can't prove it, and you win. So, he concludes, people shouldn't use other people's CC-licensed images because you can't trust them to not commit what looks to me like fraud.

  It's not a problem if you pay for an image because then you have a paper trail for the payment, and maybe even a written, signed license. I guess if you get a signed CC license from the supplier then that's one way out of this.

  His other argument is that CC-licensed photos might have images of people who haven't given permission for certain usages of their image. In copyright-speak that's 'provided a model release'. He gives a concrete example of where this actually happened. So, he concludes, don't use other people's CC-licensed images unless you've sorted out model clearance. But even then, you've got the switcheroo problem I've just outlined.

  Not sure why he takes a few thousand words and half a dozen blog posts to explain all that, but there ya go.

Barry

IANALBIDOOARHCLB
  [I am not a lawyer but I dated one once and read her contract law books]

Re:I Must Be Confused ... No Backsies!

[Kjella]

The author is an idiot. Assuming the original release was legit, whereever you get the CC'd image has permission to redistribute it under CC, and that's the end of it. This would only apply if someone later got it directly from the photographer WITHOUT any license attached and no sane person would use it commercially without one. If you're highly misleading about it, estoppel would apply anyway.

Re:I Must Be Confused ... No Backsies!

[Raindance]

I think you're right, that this is the problem / "get rich quick scheme" he's trying to get at.

The problem being, it just wouldn't work. There are enough logs of what goes on on the internet that anyone trying this would get tripped up (the existence of archive.org alone would be a death-knell for this strategy... same with the Google cache).

I think this fellow has some valid thoughts, particularly about model releases, and then he has some confused thoughts. It's kind of a shame to have these confused thoughts aired by a place as big as slashdot. But I think this sort of criticism- deserved and undeserved- will allow Creative Commons to do a better job. I know Lessig has said that CC is trying to make things more clear re: model releases, and also to more tightly integrate content and license.

Re:I Must Be Confused ... No Backsies!

[ehrichweiss]

IANAL, but revocation probably happens because it could be considered "unconscionable" to not be able to revoke a license in certain cases, and if a clause is considered unconscionable and that clause isn't severable from the rest of the contract, then the whole contract could potentially fall apart.

Re:I Must Be Confused ... No Backsies!

[corsec67]

Your site is much less likely to get indexed if you do an exclude all in your robots.txt.
But then how would people find the images to rip them off?

As for CC versus the model release: the license of the photo has nothing to do with the model release. You need a model release if the picture is used commercially, regardless of the license on the photo itself.

Re:I Must Be Confused ... No Backsies!

[Raisey-raison]

Part of the answer to this problem is to change the law so that the of proof is NOT on the users to show they got it legally. Perhaps you would begin with a neutral position and expect each side to argue on the balance of probabilities as to whether a CC license was granted. Secondly make the old 'switcheroo' a big time felony with huge fines - 10 times what he could have sued people for. If people knew they could lose their shirt and go to jail for this old 'switcheroo' I am not so sure they would go for it. Make sure as well that one can sue civilly for performing a 'switcheroo' and again make the damages 10 times what the original guy was trying to sue for. Additionally allow punitive damages.

Re:I Must Be Confused ... No Backsies!

[bloobloo]

The CC licences are not contracts. The photographer does not receive any consideration from the user. A contract must contain an offer, an acceptance, and an exchange of considerations.

Re:I Must Be Confused ... No Backsies!

[DragonWriter]

The idea that you can un-creative commons something is ... not right.

At least in US law, a license that is not supported by payment or other consideration (i.e., one that is not a contract) is revocable at will by the person issuing the license, whether or not the license purports to be irrevocable (you could probably make an argument that a sublicense required to be irrevocable as a condition of the original license is irrevocable by the sublicensor, but still subject to revocation by the original licensor.)

Courts may apply the doctrine of estoppel to prevent what they see as substantial injustice from such a revocation where the licensee has reasonably and detrimentally relied on the licensors representation that the license would not be revoked.

This isn't something special to the CC family of licenses, either; it applies to all gratuitous licenses, including (e.g.) the GPL family of licenses.

Re:I Must Be Confused ... No Backsies!

[mhall119]

Interesting, and with implications beyond CC licenses as well. Suppose I create a small application, license it under the GPL, and distribute it from my own website. Then, some company starts to use and re-distribute it, following the GPL. Next I scrub my site and my code of all references to the GPL, and claim it was never licensed as such. Wouldn't this cause a very similar situation?

Re:I Must Be Confused ... No Backsies!

[vux984]

His other argument is that CC-licensed photos might have images of people who haven't given permission for certain usages of their image. In copyright-speak that's 'provided a model release'.

How is that not a risk with non-CC licensed photos? I mean, that seems to be a general risk. Period.
At best, CC images, should be available in packages with copies of the model releases included. This is how the major stockphotog sites handle it. You must upload an image including the releases.

But even then, you've got the switcheroo problem I've just outlined.

The 'old switcheroo' problem is trivial to work around. Users need to simply protect their investment by documenting how and where they got the photo, preferably with screenshots, showing the photo and its CC license. They should do this with *all* photos they buy or otherwise acquire.

If anything, CC photo distributors should simply make the process more 'transaction like' so that images downloaded, while still 'free', are bundled in packages with model release forms, with confirmation emails indicating that the image had been downloaded from the-site, on such and such a date, under such and such a license.

I.e. its not a flaw of the license, its a flaw of the distribution system.

If 'bigstockphoto' let you buy download credits, and then when you clicked on a link and downloaded an image they simply removed a credit, we'd have the same problem. No evidence that you purchased and licensed a particular photo... at best evidence you paid for a photo. But no, they send you confirmation emails identifying the file, with custom download links etc etc. So if you get sued later on, provided you kept everything you can document that you obtained the file from them, legally.

And even then you should do more diligence; what if bigstockphoto.com goes under and vanishes from the internet. Suddenly users everywhere get sued... all they have is some confirmation emails that say they bought "image0005234.jpg". But possibly no copy of the license, and no proof that image005234.jpg is the image they are being sued over...

Re:I Must Be Confused ... No Backsies!

[ehrichweiss]

Ahem, from the Creative Commons license:

"By exercising any rights to the work provided here, you accept and agree to be bound by the terms of this license. To the extent this license may be considered to be a contract, the licensor grants you the rights contained here in consideration of your acceptance of such terms and conditions."

Re:I Must Be Confused ... No Backsies!

[risk one]

Okay, so two points...

If you're going to print pictures with people in them, especially on a large scale, make sure you know about model releases. Any company that hires lawyers knows about this, and I seriously doubt that they'd let anything slip through the cracks. Any company that doesn't have lawyers working for them would surely not print on such a great scale that huge amounts of damages could be claimed. In any case the legal history of cases based on granted copyright without model releases should be examined before we start spreading FUD about a license that's been pretty good to and for us.

On the second point, if you're actually worried that someone is 'gaming the CC' to get your money, just send them an email asking if you may use the image under the specified license. Problem solved. No need to be afraid of the CC license.

I hope this guy is happy with the 50 bucks worth of extra clicks on his google ads he got from his slashdot feature. This may well hurt the commons just like all the disinformation about the GPL has hurt open source acceptance. You know how lawyers are. Until there's precedent, they will advise their boss against using the Commons. Better safe than fired.

Re:I Must Be Confused ... No Backsies!

[Raindance]

Right, on both counts.

I think the model release problem is relevant, if only because Creative Commons was sued over it earlier this year. It was (IMO) a meritless case, which was later dropped-- not CC's fault at all, as you say-- but it was a sign that many people probably don't get the license/release distinction. It's not CC's obligation to make that clearer, but Lessig has stated they'll try harder at it.

Re:I Must Be Confused ... No Backsies!

[pbhj]

>>> It's not a problem if you pay for an image because then you have a paper trail for the payment, and maybe even a written, signed license. I guess if you get a signed CC license from the supplier then that's one way out of this.

Wouldn't an email from the supplier of the CC-ed material be sufficient to shift the burden of proof?

If they said you forged the email then without proof you could countersue for slander too.

I often consider cc-by-sa images, there are lots on flickr. Flickr, and the license help info, say you should provide an attribution in the form requested. Thing is sticking a cc-by-sa logo next to something is as much as anyone does. Nobody ever mentions how they want their "by" to be recorded. So, usually you have to contact the producer anyway, and no they don't often respond to random emails from unknown individuals. Those that do respond often ask how I'm going to use the image first, which seems counter to the license already granted. Ho-hum.

Re:I Must Be Confused ... No Backsies!

[RalphBNumbers]

So seriously, you may well be right with the first two issues but this third concept is foreign to me and I'm sure many lawyers would be interested in how you 'revoked?' a license. What the?

I think a lot of these issues would be resolved by making it "no backsies, all derivatives must be CC, tough if you want to use them no lawsuits plz k thanx bye." And that's the best legalese I know.

IANAL, but as I understand it, under US law, you can revoke most kinds of licenses for your work after a certain number of years (35 or more, depending on when the license was made), whether the license itself says it allows termination or not.

The Creative Commons' Labs even has a tool and FAQ on their website to help people break their old licenses (presumably so that their old works can then be released under a CC license). So some of their people obviously know that this is possible.

Re:I Must Be Confused ... No Backsies!

[Bazman]

I think this is his whole point. Going back to the original article, I think he tries to make the point that the reason for CC licensing is to encourage free re-use. If you have to go to the bother of getting an email from the supplier in order to safeguard yourself then that's a barrier to re-use.

You may as well just not bother with CC-licenses, but tell people if they want to use your images then to ask permission, and then you give it (if you want). CC licenses with redistribution allowed clauses complicate things a bit though.

I don't see his argument only applies to images though - audio recordings could have performers who haven't cleared their performance for redistribution, and you can also do the switcheroo and sue trick of licenses. Although I think it's fairly well-proved that Prince gave away his last album free with a newspaper...

Re:I Must Be Confused ... No Backsies!

[rizzo420]

Why do you have to ask the producer how they want the attribution to be recorded? Simply putting a note under it saying "image by John Doe" or "original by John Doe" if you have made alterations is attribution. The license does not say you must record it in the manner in which the producer wishes, that defeats the purpose.

So while it's generally better to ask permission regardless of the license (it not only verifies you have permission, but gives you a written record of the permission to help if they decide to try to screw you with the previously mentioned scam), it's not necessary.

Re:I Must Be Confused ... No Backsies!

[element-o.p.]

You know, I thought that if you license it as creative commons then all derivative works and the like from that work must also be CC ... although I think I am wrong about that last part, I am so used to and in love with the GPL that it's just how I think.

IANAL, etc., etc.

I think it depends upon which flavor of the CC license you use. I've put the CC license on most of my web pages at home, music I've written (http://www.sounclick.com/elementop/ if you will excuse the shameless self-plug), etc., and I've always used the Creative Commons US Share-and-share-alika (SA) non-commercial (NC) version because, like you, I'm a big fan of the GPL.

However, IIRC, there are versions of the CC license that *don't* require you to "share and share alike". But I've only studied the CC license enough to put me at ease about releasing my works under it. Don't quote my post when you are explaining things to the judge ;)

Re:I Must Be Confused ... No Backsies!

[Anonymous Coward]

> and if you wipe all traces of your CC licensing from the internet then they can't prove it, and you win.
there's always the wayback machine http://www.archive.org/index.php it's hard to remove something from the internet once its there ( something I found out recently when trying to remove some accounts from various social web sites - they don't like to remove accounts I found - upsets there stats - 16 trillion users and climbing )

Re:I Must Be Confused ... No Backsies!

[AndroidCat]

The author specifically mentions Flickr which apparently isn't archived by Wayback. A MakeMoneyFast artist could also use his own site and switch off archive.org with a robots.txt exclusion, instantly blocking all access to previously archived versions of the site.

Re:I Must Be Confused ... No Backsies!

[bloobloo]

Fulfilling an existing legal obligation is not adequate consideration in a contract.

Re:I Must Be Confused ... No Backsies!

[ehrichweiss]

No one said anything about "adequate". Regardless, it's there despite what you've said thusfar so why don't you try discussing it with the Creative Commons attorneys instead.

Re:I Must Be Confused ... No Backsies!

[bloobloo]

Sorry - I meant valid. Here's one example of precedent. Collins v Godefroy [1831] 1 BAd 950 is the archetype of cases where a duty imposed by law cannot be taken as Consideration to support a Contract. Godefroy promised Collins six guineas if he would attend court to testify on his behalf. At his agreement, Collins was subpeonaed. Godefroy refused to pay. In his defence, he claimed that there was no consideration moving from Collins, as he was obliged to attend court anyway. This view was upheld by the court.

Relicensing is the issue

[Midnight Thunder]

I am not so sure that this is so much an isuee of Creative Commons, as it is the gray void that is relicensing. You should only be applying the CC to your own work and if you are applying the CC to something else, then you should responsible for the fallout, especially if the license is incompatible with the original.

Re:Relicensing is the issue

[tjstork]

I am not so sure that this is so much an isuee of Creative Commons, as it is the gray void that is relicensing. You should only be applying the CC to your own work and if you are applying the CC to something else, then you should responsible for the fallout, especially if the license is incompatible with the original.

I think the gist of the article is thus:

Owner A has photo
B releases A under CC to X,Y,Z
A sues X,Y,Z, but really B is to blame.

The game is that, I could take one of my friend's photos, and put it up on the likes of Wikipedia. Then, my friend turns around and sues Wikipedia for infringement. In other words, the claim is that the license somehow makes it possible to "game the system", but, as you already pointed out, I don't see how that isn't possible with any license.

Re:Relicensing is the issue

[nahdude812]

And X, Y, and Z turn around and sue B for misrepresenting the image to begin with. But like you said, this problem is not a Creative Commons problem, it's problem endemic to copyright which Creative Commons inherits because it is a license under copyright law.

Re:Relicensing is the issue

[Anonymous Coward]

How is that specific to creative commons?

Owner A has photo
B release A's photo under any other licence to X,Y,Z
A sues X,Y,Z but really B is to blame

Re:Relicensing is the issue

[ScentCone]

Owner A has photo
B releases A under CC to X,Y,Z
A sues X,Y,Z, but really B is to blame.

No, the real problem is that when A releases an image under CC, and neglects to register the work with the copright office (as the overwhelming, vast majority of people do), he has no recourse at all, in any meaningful form, against the mis-users of the image, no matter who he pursues (B, X, Y, or Z). In practical terms, A's use of the CC is a statement that there will be no monetary licensing costs. That establishes the fact that exactly $0 is what you can sue for, since works that aren't registered with the CO aren't eligible for any sort of statutory penalty when mis-used.

If A does NOT use the CC, but likewise doesn't register the image, he's still only going to be able to pursue in court what he normally would have charged to license the image. And generally, the 30% of that that a lawyer would want in order to take such a case would just about buy that lawyer and his assistant a half-caffe-no-whip-skinny-latte on the way to civil court.

Re:Relicensing is the issue

[cfulmer]

A's use of the CC is a statement that there will be no monetary licensing costs.

There will be no monetary costs for using the work under the terms of the license. But, if you fall outside the license, things become murkier. After all, if you say "no commercial use," for example, it's because you want them to come back to you and pay for that commercial use. Same thing for the attribution clause.

Re:Relicensing is the issue

[ScentCone]

There will be no monetary costs for using the work under the terms of the license. But, if you fall outside the license, things become murkier. After all, if you say "no commercial use," for example, it's because you want them to come back to you and pay for that commercial use. Same thing for the attribution clause.

But one of Heller's points is that someone can, essentially, use the image (even for profit!) outside of the bounds of that CC license (to which they didn't even agree, obviously) with essentially no consequence. Sure you can sue them, since you can practically sue a turnip. But if you haven't registered your works with the CO, then you cannot pursue statuatory damages. And that's the part that the vast majority of artists aren't thinking about.

Re:Relicensing is the issue

[cfulmer]

Sure, without registration, you can only get actual damages & attorney's fees. But, if you haven't registered, you can still get actual damages. The fact that you're allowing some uses for free does not imply that you'd allow all uses. Stephen Colbert, for example, allowed viewers to create derivative works in his "green screen challenge," but would have been able to collect decent damages if his video had been used in a commercial, even if it was never registered.

Plus, if you register and they infringe again, then you can get statutory damages for infringments that occur after the registration.

Finally, you can also get an injunction ordering them to stop infringing.

So, the situation isn't quite as dire as Heller seems to believe. You're better off registering, but still have remedies if you don't.

Re:Relicensing is the issue

[ScentCone]

The fact that you're allowing some uses for free does not imply that you'd allow all uses.

But the vast, giant majority of people who post on sites like flickr and robotically check the CC box do NOT have an established, articulated mechanism for charging for their work in a commercial setting. Lawyers can really make hay out of the fact that your first-ever suit for damages happens to be in regards to the first time you ever would have charged for such work in your life. And that's most amateurs, and that's his point.

Re:Relicensing is the issue

[fmobus]

oooh shuddup! It is not mandatory to have the work registered before the infringement. You are only required to register before actually filing the suit (i.e. possibly before the infringement itself). Registering will also give allow you to sue for statutory damages, as opposed to only actual damages. Handy faq.

Re:Relicensing is the issue

[cfulmer]

Except that in such cases, courts typically use an objective standard ("what would a reasonable license fee for this picture have been"), not a subjective standard ("what would this particular plaintiff have charged this particular defendant?") So, you find similar pictures and uses in a commercial setting and use that fee. Heck, if the company using the picture has licensed pictures before, it's even easier -- just see how much they normally pay.

Turn Heller's argument around: let's say that you're a commercial photographer who has licensed hundreds of pictures at $1,000 each. Now, I come along as a novice, grab your picture and put it on my website. Do I owe you $1,000? Under Heller's argument, I should be able to say "But, I've never licensed a picture before. I never would have paid $1,000. This is my first-ever suit for damages and happens to be in regard to the first time I ever would have paid for such a work in my life. I never would have paid anything for that, so your damages are $0."

Re:Relicensing is the issue

[ScentCone]

Turn Heller's argument around: let's say that you're a commercial photographer who has licensed hundreds of pictures at $1,000 each. Now, I come along as a novice, grab your picture and put it on my website. Do I owe you $1,000? Under Heller's argument, I should be able to say "But, I've never licensed a picture before. I never would have paid $1,000. This is my first-ever suit for damages and happens to be in regard to the first time I ever would have paid for such a work in my life. I never would have paid anything for that, so your damages are $0."

I understand the temptation of looking at it that way, but think about how it will play in a civil court. The injured party is the artist. If the offending art-infringer is saying that he's not in the habit of licensing expensive professional photography, and thus shouldn't be on the hook for that value just because he ripped it off this one time... the jury would actually laugh out loud. That's like sitting down at an obviously fancy fixed-price restaurant, ordering the lobster and the best champaign available, and then (when in court over stiffing the restaurant on the bill) explaining that it would have been the first time you'd ever sat down to enjoy the creative work of such an expensive chef, so it really doesn't have any established value in that particular context. Pah! A jury would smell that line of weasleiness the moment the defense started down that road.

Re:Relicensing is the issue

[cfulmer]

Exactly -- I was trying to point out the fallacy in Heller's view by turning it around. Similarly, if you're, say an ad agency and come across a very nice picture which you would normally pay a thousand dollars for, would you reasonably expect to use it for free?

Like I said, damages are based on a reasonable market price and do not depend on either party having paid or been paid before. But, if one party has bought or sold similar pictures in the open market, those earlier transactions are excellent evidence of that reasonable market price.

Re:Relicensing is the issue

[ScentCone]

But, if one party has bought or sold similar pictures in the open market, those earlier transactions are excellent evidence of that reasonable market price.

Much of Heller's audience are the legions of never-sold-an-image-ever amateurs with $10,000 worth of expensive DSLR, professional quality lenses and other tools who are just having fun making images. They share them on places like flickr, and don't think through this stuff at all, let alone have any economic base line established for the value of their time or their finished works. Large (especially corporate) users of photographs license similar-looking images across an entire spectrum... could be $20 for royalty-free image from a microstock agency (read: the web site run by one guy who puts up Ice Skating pictures for fun, and decided maybe he could buy dinner out twice a year by selling one or two images along the way), or could be an expensive rights-managed image license through Getty or Corbis that could cost anywhere from $50 to $50,000 depending on how it's used.

Heller is trying to point out to the millions of people who fancy themselves one mis-appropriated/mis-attributed image away from a set-for-life lawsuit against Really Big Industries, Inc. and the ad agency that clumsily deployed the image, that: (1) they're probably just dreaming, anyway, and (2) yup, they're just dreaming, especially if they don't understand the ins and outs of actually registering their work at the copyright office.

Re:Relicensing is the issue

[mabhatter654]

it's time for these guys to act!!!

http://xkcd.com/345/

Clearly opaque

[teasea]

This series of blogs has generated a fair amount of discussion on several photography forums, and I would like for the Slashdot community to clarify matters."

The only thing I see the slashdot community making clear is the maximum opacity of the muck it will be necessary to wade through before we are able to define the issues.

ummmm

[demonbug]

"...and I would like for the Slashdot community to clarify matters."

I LOL'd.

Re:ummmm

[Anonymous Coward]

Me too.

Re:ummmm

[Thornburg]

I did more than just laugh... The Slashdot community is now a legal expert? They can't even agree on basic facts like vi is superior to emacs. How do you expect the collective Slashdot mind to come up with any cohesive answer to a complex legal question?

Re:ummmm

[msuarezalvarez]

Well, the /. community may very well provide different readings, points of views, related information and so on. That is not `a collective coming to a cohesive answer', but it can be useful anyways.

Re:ummmm

[n dot l]

"...and I would like for the Slashdot community to clarify matters."

I LOL'd. Yeah. First thing I thought when I read that is, "You must be new here..."

Re:ummmm

[rucs_hack]

Well, the /. community may very well provide different readings, points of views, related information and so on. That is not `a collective coming to a cohesive answer', but it can be useful anyways.

Provided all you want to know is what would happen in soviet Russia, whether or not you could Beowulf a CC license, and to what extend the poster is an insensitive clod..

Re:ummmm

[R2.0]

My reaction was "This is not the Slashdot you are looking for."

ha

[nomadic]

This series of blogs has generated a fair amount of discussion on several photography forums, and I would like for the Slashdot community to clarify matters

Why would the Slashdot community be able to clarify matters?

Re:ha

[Anonymous Coward]

Why would the Slashdot community be able to clarify matters?

Because we're all highly intelligent and rational people, especially when it comes to legal matters? Oh, and we'll never let any sort of dogma cloud our judgment.

Re:ha

[Anonymous Coward]

Plus we're handsome and smell like cinnamon.

Reliance

[Russ Nelson]

If you encourage people to use your work, and then try to pull the rug out from them by revoking their license, you can sue them for "reliance". Judges don't like that business model.

Re:Reliance

[CamoCoatJoe]

If you encourage people to use your work, and then try to pull the rug out from them by revoking their license, you can sue them for "reliance". Judges don't like that business model. Sure, if you can prove it. How many people do you think keep logs sufficient to demonstrate this? I don't. It's not enough to save a copy of the website TOS, you need to show that the content was on that website, and didn't have an alternate agreement specified. So, get a really big HD and keep of copy of all TCP sessions?

Really, what we need is for people to start using digital signatures, but for that we'll need a trustworthy and legally recognized certification system and revocation notification system, and for non-cryptographic electronic signatures to become not legally binding or people/companies will never bother, then to convince people not use use something unless a signed license is provided...

Re:Reliance

[OSPolicy]

That is incorrect. You are not using "reliance" correctly.

"Reliance" is a term of art in contract law. It refers to the case in which I do something because I have reasonably relied on you to do or not do something else. If you tell me that you want me to be the best man at your formal wedding and I rent a tux, I spend money in reliance on your promise to make me best man. If you later revoke that offer, I could sue you for the money I spent on the tux because I spent that money in reliance on you and your promise to make me best man. You could have foreseen that I would spend money on the tux in reliance on your promise, so you're on the hook for the rental fee if you revoke that promise.

If I also hire skydivers to jump out of a plane with a banner that says, "Russ is getting married," also in reliance on your promise to make me best man, you are not on the hook for the money I spend doing that. You are not on the hook for money that I spend in reliance on your promise, but that you could not reasonably foresee. Here, it would be highly unusual for you to foresee that I would hire skydivers in my role as best man.

In your example, if you pull the rug out from under someone by revoking the license, that person could sue you for any damages he suffers because he reasonably relied on your representation that you were granting him a license.

What if someone else led you to the reasonable belief that he had given you a license and then you discovered that, for whatever reason, that was untrue? Then you still get sued for reliance and you still lose, but you "join" (i.e., drag into the lawsuit) the party who purported to give you the license (see Federal Rules of Civil Procedure 14 and 18-20), you sue him as part of the same proceeding, and then he pays you.

Re:Reliance

[Russ Nelson]

I agree that you have described reliance correctly, but ... you haven't disagreed with what I wrote.

clarification

[fattmatt]

...on slashdot the game is socialism ... so we don't believe in such silly things as copyrights and patents as the community must benefeit at no charge from the works of others ... and without consequence.

Re:clarification

[Anonymous Coward]

...on slashdot the game is liberalism ... so we don't believe in such silly things as artificial monopolies such as copyrights and patents ... as they disturb the free market.

Re:clarification

[meringuoid]

...on slashdot the game is socialism ... so we don't believe in such silly things as copyrights and patents

Hang on. We're socialists... so we don't believe in government-backed and enforced monopolies?

The fatal flaw in CC

[Anonymous Coward]

The fatal flaw in Creative Commons is the concept of any type of "licensing" of "intellectual property". As anyone with any sense knows, the very notion of "intellectual property" is nothing more than theft. If supporters of "intellectual property" had there way, the very words we speak would be "licensed", and we'd have to pay a toll just to wish someone good morning.

Down with Creative Commons, the GPL, copyright, patents, and all other forms of theft masquerading as "intellectual property". The workings of human minds should be shared freely by all people, or not at all.

Re:The fatal flaw in CC

[Anonymous Coward]

I wish you luck on your revolution. On the meanwhile, I'll continue using the most acceptable licenses in this world of ours.

And another flaw - Model Releases

[homer_ca]

There's a whole other issue with photos and videos separate from copyright: getting a model release from the people shown in the picture. See this earlier case of Virgin Mobile Australia using a CC licensed photo off Flickr in an ad campaign.

http://yro.slashdot.org/article.pl?sid=07/09/22/0319252

Re:And another flaw - Model Releases

[Fri13]

"There's a whole other issue with photos and videos separate from copyright: getting a model release from the people shown in the picture."

Not on all countries is model release required.

Re:And another flaw - Model Releases

[Anonymous Coward]

Interesting link. Hadn't read much about that case before.

To me, that sounds like a major flaw with the commercial-use CC license - particularly with respect to version 1.0 vs. version 3.0 of the CC license. In 1.0, while disclaiming any warranty, there is language that seems to say that the photographer claims they have all the rights necessary to allow commercial use of the picture. This language is missing from version 3.0 - it merely disclaims any and all warranties.

This doesn't strike me as an improvement - if the photographer doesn't have all the rights necessary to allow commercial use (eg. didn't obtain model releases), they shouldn't mark it as allowing commercial use. Version 3.0 means that the photographer could still mark it as commercial use allowed, even if they don't have model releases. That flaw makes the license useless...you still have to go back and talk to the photographer to track down all the people in the photo. Isn't the whole point of the CC license that you _don't_ have to explicitly ask for redistribution rights?

Re:And another flaw - Model Releases

[Dogtanian]

There's a whole other issue with photos and videos separate from copyright: getting a model release from the people shown in the picture. See this earlier case of Virgin Mobile Australia using a CC licensed photo off Flickr in an ad campaign. Thank God at least one person didn't let this misleading bit through without criticism. Heller says that

Here's another example: Virgin Mobile used a photo from a Flickr user who used the Creative Commons license, but the company forgot to check for a model release for the person in the photo. They got whacked for a hefty settlement, even though the photo itself was not the source of the problem. True CC licensing had nothing to do with that, but businesses don't think beyond the simple direct correlation, so the bad apple spoiled the barrel. Yes, but that's still not a problem with the CC itself.

I already discussed why I considered Virgin (or their agency) to be negligent in that case in the same thread. An advertising agency are a group of professionals whose jobs revolve around this type of thing. Even someone with a passing knowledge of the area would not assume that the CC license grants a model release. Actually, it's reasonable to assume that people in that position would consider the legal implications of *any* license carefully- and if they didn't, I would consider it negligent.

For reasons I explained in the post, even if there was a (supposed) model release, Virgin would be negligent if they didn't double-check the validity of this first.

It Only Has To Happen Once To Be Scary

[eldavojohn]

First, how often does that really happen? The problem is that (and any legal department knows this) it only has to happen once for you to pay out millions of dollars. So it only has to happen once to be scary and set precedence.

Second, why is this a problem with CC? It would be a problem with anyone placing a copyrighted work under any license, or even claiming copyright on a work copyrighted by someone else. It's more a problem with copyright and the legal system. Well, with any other copyright, I think there's very stringent usage rights set and signed for and everyone's aware of who's using who's material. Not so in the CC world, or at least they don't want it that way. So it's a bigger problem there because people are 'free' to use everything and I'm sure there's sites out there hosting CC sound clips and images and the like. This kind of orgy of use is what makes CC particularly vulnerable to these scam artists.

Re:It Only Has To Happen Once To Be Scary

[snarkbot]

Second, why is this a problem with CC? It would be a problem with anyone placing a copyrighted work under any license, or even claiming copyright on a work copyrighted by someone else. It's more a problem with copyright and the legal system. Well, with any other copyright, I think there's very stringent usage rights set and signed for and everyone's aware of who's using who's material. Not so in the CC world, or at least they don't want it that way. So it's a bigger problem there because people are 'free' to use everything and I'm sure there's sites out there hosting CC sound clips and images and the like. This kind of orgy of use is what makes CC particularly vulnerable to these scam artists. The article appears to complain about the case where a 12-year-old takes a copyrighted, non-CC-licensed commercial photo from a third party, removes any copyright notice, and put its up under a CC license. GP has it right -- this is no different than if the 12-year-old takes that same image and sells it to a third party, or simply hands it to someone and says, "you can use this photo I took for any purpose you like." The same rights and remedies apply, and it really has nothing to do with the CC at all.

Re:It Only Has To Happen Once To Be Scary

[uniquename72]

I think there's very stringent usage rights set and signed for and everyone's aware of who's using who's material. Can't imagine what would make you think this. The whole problem outlined in the article is theft of a non-CC image, which is then falsely given a CC license.

This doesn't illustrate any problem at all with CC -- it's just run-of-the-mill IP infringement. The fact that TFA doesn't bother citing any examples of anyone actually being sued for this is telling -- fact is, no one would ever get sued except possibly the person committing the original crime. The worst that might happen is a cease-and-desist letter getting sent.

Re:It Only Has To Happen Once To Be Scary

[Anonymous Coward]

who's using whose

Re:It Only Has To Happen Once To Be Scary

[DerekLyons]

Well, with any other copyright

CC isn't a copyright - it's a distribution license.

Re:It Only Has To Happen Once To Be Scary

[mabhatter654]

what license do people use on the Pirate Bay?

Re:It Only Has To Happen Once To Be Scary

[dangitman]

no one would ever get sued except possibly the person committing the original crime.

Are you sure of that? I don't see what prevents somebody other than the "original criminal" being sued. It is the responsibility of somebody using the material to make sure that they are not violating copyright.

The worst that might happen is a cease-and-desist letter getting sent.

Again, where's your evidence of this? Where's the law that states that is the worst that can happen?

Re:It Only Has To Happen Once To Be Scary

[Anonymous Coward]

Open Bay license (OBL) ?

Re:It Only Has To Happen Once To Be Scary

[Anonymous Coward]

Are you sure of that? I don't see what prevents somebody other than the "original criminal" being sued.

I don't see what prevents me from suing you right now because the color of your hair is offensive to my religion. The case would be thrown out of any sane court, but that's not going to stop me filing suit.

It is the responsibility of somebody using the material to make sure that they are not violating copyright.

Their responsibility is due diligence, nothing more. If they license the work in good faith from someone they have no reason to believe is not acting on behalf of the copyright holder, then they are not going to be held liable for someone else's unlawful act. The legal system is fucked up, but it's not that fucked up.

Again, where's your evidence of this? Where's the law that states that is the worst that can happen?

Good point. The worst that can happen is that you can be falsely convicted of murder, spend decades rotting on Death Row, and then die an agonizing death as a lethal cocktail of chemicals first paralyzes you and then kills you.

It's a question of what's actually likely to happen. You know... common sense?

Why should I worry about Dan Heller's opinions?

[jdgeorge]

As far as I can tell, DHINAL (Dan Heller is not a lawyer). Why would I worry about his opinions, rather than the well informed opinion of Lawrence Lessig, the law professor who actually founded the Creative Commons, and uses the licenses extensively?

Re:Why should I worry about Dan Heller's opinions?

[ScentCone]

As far as I can tell, DHINAL (Dan Heller is not a lawyer). Why would I worry about his opinions, rather than the well informed opinion of Lawrence Lessig, the law professor who actually founded the Creative Commons, and uses the licenses extensively?

Are you a lawyer? Then why should we care about your opinion about whether or not someone else has presented legally useful information?

Regardless... Heller's perspective is that of an artist and technician that produces work for a living. You have no obligation to pay him for what he does unless the two of you strike up deal, but some people (say, businesses that need an image for use in promoting a product or documenting a service, etc) DO want to be able to turn to professional photographers who understand the nuances of contracts and who have a personal stake in the successful use of their creative work. How does it help anyone if the prevailing culture shifts towards the sense that things that it costs money, time, and a career's worth of education and training to create has no value?

He has a vested interest in being able to license his work in a way that serves both him and his customers. It's to his advantage - as it is to most creative professionals - that people who want to put their creativity to work (say, as the cover shot for some non-profit organization's annual fundraising brochure) understand that there is no free lunch. Someone may elect to license an image under the CC, but all Heller is doing is pointing out that unless you actually register the image with the actual, for-real copyright office, you have no ability to pursue statuatory damages when someone rips off your work. If it ain't registered, then all you can do is pursue the price you would have asked if the user of the image had bothered to license it from you legitimately. And the magically startling part of his message (for many people who are seduced by the warm-and-fuzzy CC feeling) is this: when you choose to provide your photograph to people under the CC license, you are explicitly saying that you consider it to have no monetary value. You have NO recourse when some company or church or web site decides to rip you off.

Heller (correctly, I think) points out that most people who post their images on flickr under the CC are thinking that if they catch some Super Evil Corporate Entity using their image without permission, that they're sitting on some litigation goldmine. And that's simply not true for the vast majority of such posters, because they're not doing the work of registering their work with the actual copyright office, the way that a pro does.

Why should you worry about Dan Heller's opinions? Because he's a working professional who lives in the real world and he has to have an actual, working understanding about this stuff because otherwise he won't be able to make a living. Mostly, here, he's just making sure that people witlessly checking the CC box on their flickr postings because it feels good to do so and may impress some organic Goth chick they met on Facebook realize that they are, in practical terms, signing away any reasonable expectation of recourse when they are ripped off - even when ripped off by someone who knowingly and deliberately does so in order to make money in the act of doing so. There are essentially no consequences for doing so, and he's trying to throw a bucket of water on people so that they'll realize that.

Re:Why should I worry about Dan Heller's opinions?

[jdgeorge]

Thank you, that is a fair answer.

If I read the response right, it's not that Dan Heller has anything new to bring to the discussion, but that many folks might listen to him because he's an "artist" rather than a (by definition boring) lawyer (who also produces work for a living and uses CC licenses extensively). Since Lessig has generally covered these issues before, Dan Heller doesn't bring any new information to the table; rather, he tries to provide a wake up call to the folks who aren't interested in paying attention to what they're doing.

That said, I don't expect that the folks who aren't interested in reading a lawyer's site that provides information about the license he created will be any more likely to read a photographer's site about the license he understands moderately well.

I suspect that those who are inclined to treat the CC license as a click-through will continue to do so, regardless of who is trying to educate them about the consequences.

The bottom line is that I would not want ANYONE to get legal advice from a photographer/"artist" instead of a lawyer with expertise in the area of interest.

Re:Why should I worry about Dan Heller's opinions?

[ScentCone]

The bottom line is that I would not want ANYONE to get legal advice from a photographer/"artist" instead of a lawyer with expertise in the area of interest.

Sure, just like you wouldn't usually ask a lawyer to help spec out a studio lighting system. But if you follow Heller, you'll see that he usually (to boil it down) says things like this: "So, there's a list of 100 factual things you ought to know about copyright, your business plan, and liability insurance. Now, go talk to your lawyer, your accountant, and your insurance agent to make sure that you know how or if they all apply to you." And he's not really any different on this topic - he's just pointing out a gigantic, gaping hole into which many passionate amateur or small-time photographers seem to be continually stepping. Good for him.

Re:Why should I worry about Dan Heller's opinions?

[jdgeorge]

And he's not really any different on this topic - he's just pointing out a gigantic, gaping hole into which many passionate amateur or small-time photographers seem to be continually stepping. Good for him.

True enough. I do hope he succeeds in helping some people avoid or understand copyright-related problems. Good luck to him.

Re:Why should I worry about Dan Heller's opinions?

[Altus]

when you choose to provide your photograph to people under the CC license, you are explicitly saying that you consider it to have no monetary value.

This is the part I have trouble understanding (im certainly no expert, so maybe you can explain this to me). Lets say I take a picture and release it under a CC license that lets people use it for free for non commercial purposes Then SlimeCo come along and starts using my picture on the cover of their new product. Clearly this is a commercial use and would be in violation of the copyright.

What you are saying here though, is that, since I am giving the picture away to people for non-commercial use that it has no monetary value when licensed for commercial use. I don't understand how this follows. There is software that is available under more than one license where one costs money and another is free (with stipulations)... why is there an assumption that something that is free for non commercial use would be licensed for free for commercial use?

Re:Why should I worry about Dan Heller's opinions?

[Anonymous Coward]

Oh. I see. This guy has a vested interest in the market for photographs - a market being undercut by legions of armature photographers providing no-cost stock. So the real message here is "don't undersell yourself." Hey. I can agree with that - I'm a big fan of being paid what you're worth. But let's not kid ourselves by saying this is an issue with CC.

Re:Why should I worry about Dan Heller's opinions?

[ScentCone]

So the real message here is "don't undersell yourself."

Actually, no. His message is "don't be surprised if a lack of foresight and preparation on your part leaves you with no meaningful recourse when someone misappropriates your work."

Re:Why should I worry about Dan Heller's opinions?

[Anonymous Coward]

Because in the law, intent can be relevant in interpreting a contract. So can the reasonable interpretation of non-lawyers. The consensus of /. opinions would thus be useful to compare to his own interpretation of the CC to adjudge his interpretation's reasonableness.

There is no problem with the CC -- the problem is that people think it says things that it does not. The CC is a license to use my rights in the image. The CC nowhere states that I warranty that there are no other people who also may have rights in the image, such as a model, or that I have the right to license the work in the first place.

There have always been people selling things they don't own (i.e. the Brooklyn Bridge) to purchasers who did not do due diligence to determine that the licensor has the capacity to transfer the rights the purchaser wants/needs.

As for revoking rights, that has been dealt with for years in the publishing industry. If I give you a license to copy my work, any copies you make while that license is in effect are permitted. The smart licensee will make a extra copies can keep them to sell after the license terminates. The smart artist will make sure the license requires all unsold copies be destroyed when the license terminates. Similarly, if I give you the right to further license my rights, and you do so, the sub-licensee has a valid license that survives termination of my license to you -- unless of course that scenario is expressly handled by the contract differently. The only issue of the CC that is uncommon, is the right to sublicense. I understand the reasons for it, but I believe that it does more harm than good.

If you want to use an image -- any image -- under CC or not, you need to exercise due diligence. When I buy a house, I do a title search. If I am buying an image, I'm going to require indemnification or backup from the seller (including Getty) or I'm going to go backwards to the original artist/model to protect my interests.

Re:Why should I worry about Dan Heller's opinions?

[epine]

I hate the IANAL meme. One has to ask whether our legal ought to be so complex and inscrutable that any remark on the subject by a concerned, intelligent, and clear-headed person can be shot down like a calf in a slaughterhouse with a single 5-grain all-caps slug to the pons presumptuous. I'd like to introduce everyone to IANAL's inbred sister BOAETR (bend over and enjoy the ride).

I don't know whether anyone else has noticed, but it is hugely problematic to live in a society governed by rules you can't comprehend, nor debate to any useful conclusion.

IANAL functions like a secular mirror of the bible-thumping parody of Christian humility: you're never going to find out exactly what God wants, but don't be wrong, because you'll burn in hell forever.

Information wants to be anonymous

[Besna]

It has to be said. Bits don't care. They are laughing at all our legal wrangling.

Hilarious

[raoulortega]

I would like for the Slashdot community to clarify matters You're kidding, right?

Wrong on all counts, troll

[spun]

...on slashdot the game is socialism ... so we don't believe in such silly things as copyrights and patents as the community must benefeit at no charge from the works of others ... and without consequence. Wow, how many times can you be wrong in one sentence? On Slashdot, the game is libertarianism. Do you see anyone endorsing a socialist candidate in their sig? Nope, you see Ron Paul. Second, we absolutely believe in copyright, as it is the only thing that makes the GPL work. As for patents, many of us think that reform is needed, but few would toss out the whole deal. No one hear thinks any community should benefit from the work of others unless those others want the community to benefit. No one is advocating force, we just happen to like sharing and only an asshole would try to claim that voluntary sharing is bad.

We do like screwing over 'individualists' who want to profit off our sharing without contributing, though. Thus the GPLv3. Don't you hate that? We can band together and stop you from screwing us over for a profit. Sucks to be selfish, eh?

Re:Wrong on all counts, troll

[fattmatt]

ha... that was fun, but I thought the majority here are socialist libertarians? smells that way... as for Ron Paul ... go ahead, throw your vote away.

Re:Wrong on all counts, troll

[babblefrog]

"go ahead, throw your vote away."

I've never understood this. Do you get some prize for voting for the winner?

Re:Wrong on all counts, troll

[Bryansix]

No vote is "thrown away". Voting for the candidate you want instead of the candidate you think can win and is least offensive to you is how you promote change. Next time when it comes out that an independant got 30% of the vote, people will notice.

Starting off with a joke

[Anonymous Coward]

"...and I would like for the Slashdot community to clarify matters."

HA! Thank you for that. It's always good to start my day with a joke.

intellectual property my ass!

[doti]

Welcome to the digital age, where information is free to be copied everywhere, without loss of the original.
And that applies to anything that can be put in digital form: text, software, images, sound, video, and photography.

If you don't want your precious piece of information to be used by others, then just don't put it available to the public. Period.

The very term "intellectual property" doesn't make sense.

Re:intellectual property my ass!

[PhxBlue]

If you don't want your precious piece of information to be used by others, then just don't put it available to the public. Period.

How asinine. I'm glad artists and writers and photographers and musicians don't actually feel this way, because it would make the U.S. a pretty damned depressing place to live. There's also the small matter of how you'd get your news stories, which are also protected by copyright.

Re:intellectual property my ass!

[Anonymous Coward]

Thank you for clarifying this. It's nice to know that everything on the Internet, is, for all intents and purposes, worthless.

Re:intellectual property my ass!

[refactored]

There's also the small matter of how you'd get your news stories, which are also protected by copyright.

Nah. Those are protected by being either utter drivel, political hot air or reheated corporate news releases.

because it would make the U.S. a pretty damned depressing place to live.

It is. That's why I'm in New Zealand!

Re:intellectual property my ass!

[refactored]

know that everything on the Internet, is, for all intents and purposes, worthless.

Phew! It took you a _long_ time to work that out.

But now that you have, you can switch off your PC, stand, stretch, walk outside and get a life.

No Termination

[Bruce Perens]

Nobody in their right mind would trust a license that can be terminated arbitrarily. One day you could be legal, and the next not, without your doing anything wrong. That's why none of the Open Source licenses are allowed to do that.

So, I am very dubious that CC licenses can terminate.

Bruce

Re:No Termination

[Bruce Perens]

Actually, Heller is not saying that CC licenses can terminate. He's saying that you can't trust someone who uploaded a pictrue to flickr to be an actual copyright holder. And they can be a legal minor. I suppose we could fix this with digital signature and certification, if it was that important. Right now we just expect commercial users to employ due diligence, and they don't.

The other problem is the issue of model release, and I agree that a lot of people who CC license their work don't know about that.

Re:No Termination

[andphi]

Just to prove your point for you: I'm someone who uses CC licenses on his written work (all of it in progress and none of it widely published) and I'd like to what know model release is.

Re:No Termination

[fbjon]

The licence indeed states that it is non-revocable. However, the license can obviously be changed by the owner, meaning all new users will fall under another license. At this point, TFA claims that the old users (defendants in a prospective evil lawsuit) will now have the burden of proof that they obtained the image under a Free license, and that this burden will likely prove too heavy for most to bear.

Re:No Termination

[Bruce Perens]

When you take someone's picture to use commercially, they have a right to be paid. Model release is how they sign away that right. This may also apply to inanimate objects in some cases. There are many venues that post that commercial use of photographs is prohibited without permission. And you can take a photo of someone else's copyrighted work, which would make your photo an unlicensed derived work.

I do more work in software, so am not the best one to explain this, although I'm sure there are legal guides for photographers.

Bruce

Re:No Termination

[Schraegstrichpunkt]

Look it up on Wikipedia

Re:No Termination

[Anonymous Coward]

I once tried to raise the issue of release vs. license at Wikipedia, but was essentially ignored. What can you do?

But Heller is saying the CC can be revoked at any time, and the FAQ at CC appears to agree. Whether this can be used in the manner he claims to get-rich-quick is an interesting question, but one I suspect will be "no": a court would likely find some malfeasance on the part of the plaintiff. Stupid legal tricks.

But it is much more interesting in that in all cases where the images I have on Wikipedia that have drawn commercial attention, the prospective users have all contacted me "in writing" (so to speak). Which suggests that it would be difficult for anyone to play the silly game Heller mentioned if the licensee had an actual signed contract in hand. So rather than just ignoring the CC stuff, perhaps commercial users will just insist on a normal piece of paper, just like they get from Getty and the rest of them.

Re:No Termination

[Bruce Perens]

At this point, TFA claims that the old users (defendants in a prospective evil lawsuit) will now have the burden of proof that they obtained the image under a Free license, and that this burden will likely prove too heavy for most to bear.

The original copyright holder would have to perjure himself when asked if the material had ever been available under that license. And could have to go to jail if found out.

There are many ways to prevail in an injust civil case if you are willing to risk criminal prosecution for perjury to do it. This has nothing to do with CC.

Bruce

Re:No Termination

[DragonWriter]

Nobody in their right mind would trust a license that can be terminated arbitrarily. One day you could be legal, and the next not, without your doing anything wrong. That's why none of the Open Source licenses are allowed to do that.

A lincensor who grants a gratuitous licens (not just the CC, but the GPL and other OSS licenses) can do that (at least in US law) whether or not the license terms say they won't or can't. At most, such a representation may have a bearing on whether the ability of the licensor to recover for copyright violation from a former licensee who detrimentally relied on the promise not to revoke are limited by the doctrine of estoppel.

If you want a license that really can't be revoked, you ought to get a license contract rather than relying on a gratuitous license.

Re:No Termination

[Bruce Perens]

I think under 203(a)(3), you might have to wait 35 years to do that :-)

Re:No Termination

[Phanatic1a]

The other problem is the issue of model release, and I agree that a lot of people who CC license their work don't know about that.

They don't have to know about that, unless they're publishers as well. Heller himself will tell you that the responsibility of obtaining a release rests with the publisher of a photograph, not with the photographer:

It may surprise you to know that the photographer isn't ultimately culpable for images that are published without a release. It's the publisher of an image that carries all the liability. Yes, whoever it is that puts the image into use needs to have the photo released. Who puts the photo into use? The user of the photo. The photographer is usually not that person. That the photographer sells the photo (or licenses it) is not what triggers the need for a model release. It's how the photo is ultimately put into print (or on display to the world) that matters.

This, as you indicated, is a matter of due diligence on the part of the publisher. If they're publishing images, they have legal obligations to fulfill, regardless of under what license they're granted use of the picture.

Re:No Termination

[DragonWriter]

I think under 203(a)(3), you might have to wait 35 years to do that :-)

The Section 203 termination option is a different, copyright-specific provision that applies whether or not the license was gratuitous. My original post was about a rule which applies to gratuitous licenses in general (including gratuitous copyright licenses), not the Section 203 option.

Re:No Termination

[mister_tim]

Actually, there is no automatic assumption that a model needs to be paid if their image will be used commercially*. The purpose of a model release is not about the model's right to compensation, but about ensuring that they don't dispute the purpose of the photo, i.e. that they consent that their photo be used in a commercial application. There's also the trade practices laws concept of 'passing off' - basically, if you use a particular person's photo in an advertisement for a product, it is implied in law that they support that product. If done without their consent, you are 'passing off' their support. In a model release, you would typically ask a model to agree that their photo might be used in commercial purposes.

Separately, you can generally take someone's photo and sell it or publish it without their permission (think of how many millions of photos of politicians, celebrities, criminals, etc are published in newspapers and magazines every day). You don't need to get a model release for every one of those people. There are some limitations to do with people's privacy, but that's the general rule.

* Though presumably there is a general need for a model to receive consideration for their model release to have force as a contract

Re:No Termination

[Bruce Perens]

Don't get misled by the word "publisher", we're not in the print era any longer. These days, a publisher is anyone who puts up a web page. A commercial publisher has an ad on the web page.

Re:No Termination

[Bruce Perens]

Can you show cases where what you say actually happened?

Re:No Termination

[Phanatic1a]

That's not quite true either. I can take photos, put them up on a web page, and offer them for sale, and that's still not "commercial publication" that would require a model release.

Re:No Termination

[Bruce Perens]

Yes. But if you used the photo not just as a prototype for sale but to promote your own services or products, that would be different. So, if the photographs became, for example, header or background material for your web site promoting your photos for sale, there might be a valid claim.

WANLBWPLOTV

[WED Fan]

I would like for the Slashdot community to clarify matters.

??!!!??!!

Do you actually think that the /. community contains anything but dangerous and specious interpretations of legal matters?

What next?

You're going to write to a Garden community to ask for medical advice?

Re:WANLBWPLOTV

[Anonymous Coward]

When A Nerf Like Bush Wanes, Planetary Loss Of Trust Vindicated?

Re:WANLBWPLOTV

[WED Fan]

We Are Not Lawyers But We Play Lawyers On T.V.

Re:WANLBWPLOTV

[cyberstealth1024]

Your grandfather should have used WANLBWPLO/. :)

Re:WANLBWPLOTV

[mu22le]

Asking for advices on Slashdot is just like asking an infinite number of monkeys.

Re:WANLBWPLOTV

[Trogre]

C'mon, Slashdot isn't *that* old.

Re:WANLBWPLOTV

[rtb61]

So who stole your bananas and left you so cranky. You know what, as you post, so you are =\.

First rule of civil suit, who has the most money and the best lawyers wins. Once you have put something on creative commons you can't take it back, you have initiated what is in effect an open contract and would have to get every one on the planet to agree with the alteration of contract, however that certainly doesn't stop you from getting some greedy ass hat lawyer to take the case and bleed you dry trying to win it, or as is often the case scare off the defendant who doesn't want to pay for their own lawyer.

So will greedy cheats try it on? Release stuff on creative commons, let people use it, take it back and deny everything, and then try to gouge them for money, of course, it's the modern corporate way, pretty much copying standard patent tactics and putting them into the copyright field.

The only way to simplify things is to force people to register content for copyright approval and then it can checked for originality and proof of ownership can be provided, and so all content that is not vetted and registered is then public domain is creative commons work.

Re:WANLBWPLOTV

[dangitman]

Indeed. If you want legal advice, go to Bob Loblaw's Law Blog.

Re:WANLBWPLOTV

[bursch-X]

And neither has come up with anything even remotely resembling Shakepeare's work.

Re:WANLBWPLOTV

[Anonymous Coward]

Asking for advices on Slashdot is just like asking an infinite number of monkeys.

Except that the monkeys will eventually get bored of flinging poo.

Re:WANLBWPLOTV

[delt0r]

I think you will its much closer to asking a very *finite* set of monkeys.

Re:WANLBWPLOTV

[sydneyfong]

Indeed. The answer might be here somewhere (if there are sufficient replies), but the signal to noise ratio would be so pathetic that nobody would call it a "clarification" :)

I still don't see how this would work...

[davide marney]

The architecture of a plan to entrap is now compete:

      1. Register images with the copyright office
      2. Assign CC licenses to them and post to Flickr
      3. Wait a sufficient amount of time for people to pick them up (optional tactic: promote them like crazy under an alias)
      4. Revoke the CC license
      5. As the fish start jumping into the barrel, go get gun.... er, lawyer.
      6. Start with companies that didn't use the attribution: bang
      7. Whoever's left over, make them show when and how they got the image and that it was under CC-licensing at the time. If they can't prove it, bang.

IANAL, but Step 4 seems incorrect. It wouldn't affect anyone who had acquired the images in steps 1-3. Those people have a permanent, non-revokeable license. My understanding what that a CC licensee can only revoke future use, not past use.

Re:I still don't see how this would work...

[Bazman]

Yeah, but the plan hinges on them not being able to *prove* they got it under CC-licensing. And just saying "Well, your honour, when I downloaded it there was a pretty copy-left sign on the page" probably won't cut it.

So, if you use a CC-licensed image, get a signed copy of the license from the supplier.

Re:I still don't see how this would work...

[FellowConspirator]

A CC licensee can't revoke use at all, obviously. Nor can the CC licensor, since, in using the CC license, they've granted others the right to distribute under the same terms as they've received their copy. The terms are irrevocable once two parties have accepted the terms (which one party does by providing the work under the auspices of the license, and the second party by receiving it in the same manner).

So, the CC license is irrevocable, and it's general (not specific to an individual). The right to continue to distribute the work under the original terms is transferred, and as part of it not only the right, but the obligation to grant the recipient to redistribute under the same terms.

This is an entirely different subject from the notion of model releases - which is another issue that affects CC and non-CC works in precisely the same manner.

The biggest issue with CC is that it's proving a work was licensed under any terms without a signed agreement (or receipt) is difficult. If I were to use a work commercially, I'd make sure I'd have some sort of documentation (perhaps a screenshot) that you found a CC license for the work. For non-commercial uses, I don't see why you'd bother. For a non-commercial work, it should be sufficient to stop using the work and indicate that you, in good faith, believed the work to be CC-licensed and yourself in compliance (I suspect you'd need to be specific about how you came to reach the conclusion).

Re:I still don't see how this would work...

[davide marney]

The CC FAQ says this about how to properly accrediting a work: ...the proper way of accrediting your use of a work when you're making a verbatim use is: (1) to keep intact any copyright notices for the Work; (2) credit the author, licensor and/or other parties (such as a wiki or journal) in the manner they specify; (3) the title of the Work; and (4) the Uniform Resource Identifier for the work if specified by the author and/or licensor.

I guess the takeaway here is that part of "keeping intact any copyright notices" should be making a copy of the original CC license for your records. Not a bad point.

Re:I still don't see how this would work...

[Sigma 7]

Yeah, but the plan hinges on them not being able to *prove* they got it under CC-licensing. And just saying "Well, your honour, when I downloaded it there was a pretty copy-left sign on the page" probably won't cut it. Are you a lawyer? If so, can you tell me the significance of placing such a pretty logo next to the image, if it can be proven that logo was there?

As far as I'm concerned, such a logo indicates (unofficially) that the image is distributed under the associated license or otherwise leads me (a reasonable layman) to believe this is the case.

Re:I still don't see how this would work...

[Bazman]

Correct, but if the distributor then *removes* the logo, how can you *prove* the logo was ever there?

Google cache? Google will remove things from their archive and cache if asked nicely.

Archive.org? Doesn't archive everything - and robots.txt can keep them out.

Screenshot? Easily fakeable, probably wouldn't stand up in court.

Simple answer: you can't prove it ('beyond reasonable doubt'). I imagine if enough people independently whinged that someone was switching licenses after the event then that could constitute proof beyond reasonable doubt.

The referenced article mentioned a CC registration service, where you could register your use of a Flickr CC-licensed image. That way, if challenged, the registration service was supposed to be an independent trusted record that the image was licensed under CC at that time. However, it charged a fee of $5, and flickrites complained and it stopped trading.

not exclusive to CC

[TheSHAD0W]

I don't understand why the Creative Commons license is being singled out as vulnerable to this sort of problem. Anyone, anywhere, could buy content from one entity who claims to have a copyright on it, then get hit with a lawsuit by another entity who disputes the copyright. Creative Commons is no more and no less subject to the problem.

Re:not exclusive to CC

[andr0meda]

I don't understand why the Creative Commons license is being singled out as vulnerable to this sort of problem. Anyone, anywhere, could buy content from one entity who claims to have a copyright on it, then get hit with a lawsuit by another entity who disputes the copyright. Creative Commons is no more and no less subject to the problem.


Exactly my thoughts. Except that I have a good reason: singling out the CC is a way to make sure lawyers earn more bucks, since the creative herd will be more confused about the interpretation of the licenses of their output, hence will have to turn to more traditional legal protection systems.

Well, you've come to right place!

[mi]

This series of blogs has generated a fair amount of discussion on several photography forums, and I would like for the Slashdot community to clarify matters.

People, who actually produce content (like those silly photographers) are, of course, clueless. The place to come for clarification is Slashdot — the home of "information wants to be free", "Copyrights are imaginary", and "copying is not stealing".

Oh, and everyone INAL anyway...

The catch with CC

[sterno]

Broadly speaking CC works well, but with photography, it's a particularly thorny issue because there's a lot more complexity in how copyright and other legal issues work with a photo. The problem you tend to run into with CC is that people use it pretty liberally without thinking about the consequences of it. The vast majority of people generating all this media under a CC license don't really understand all the ramifications of it. A case that recently came up was that somebody took a photo of a kid, and then that photo was picked up by a company that used it for commercial purposes. The child's parent never signed a release for the photo.

Now, this isn't a problem with CC per se, but people will often license content under CC without realizing that, technically they may not have all the rights to do what they are doing. When I take photos, I put them on Flickr under a CC license but I use the no commercial use clause. This simplifies matters because, given that it's not for money, there's far less implications for somebody using my images.

Now why is this different from using the default copyright license? Because in that case, the areas that tend to get you into trouble are not permitted by default. If you go to my site and take a copyrighted image and use it commercially, you've clearly broken the law. If you go and take my CC licensed image, you're okay with me, but it doesn't mean I was okay in the first place. Nobody's likely to sue you for just showing an image on your Flickr account, but it's very different when you're talking about using an image in marketing materials, etc.

Re:The catch with CC

[bhsx]

When I take photos, I put them on Flickr under a CC license but I use the no commercial use clause. This simplifies matters because, given that it's not for money, there's far less implications for somebody using my images. So what happens when Google Images shows your Flickr pics as search results with ads on the page? That's commercial use isn't it? I didn't read this article, but I read (what I think is) the first part that brought this up. What defines commercial use? What if Johnson & Johnson put your picture on a free brochure about baby shampoo? What if the same company used it for a free AIDS test brochure? What if a non-profit used it for the same brochure? What's commercial use?

Re:The catch with CC

[Anonymous Coward]

Are you referring to the Virgin Mobile case?

http://creativecommons.org/weblog/entry/7680

Re:The catch with CC

[Captain Splendid]

So what happens when Google Images shows your Flickr pics as search results with ads on the page? That's commercial use isn't it?

Lordy, but that's a tired old argument. You don't work for the print media by any chance?

Re:The catch with CC

[bhsx]

So what happens when Google Images shows your Flickr pics as search results with ads on the page? That's commercial use isn't it? Lordy, but that's a tired old argument. You don't work for the print media by any chance? Look at my account and ask that again, fool. "Tired old argument?" CC's only been around a couple years there buddy. So I suppose you have an answer for me? What exactly does constitute commercial use? Can you answer if any of my examples constitute commercial use? Do ALL of them? What did you bring to the argument besides an attempt at belittling me?
So back to my original question... How do you determine what is commercial use? What if I use a picture you put under CC non-commercial, non-derivative on my "free" website promoting my specific distro of Linux, which I give away for free? What if I gave it away for free but called it Verizon Linux and just used it as promotion for my cellular network?
Tired old argument my fat arse.

Re:The catch with CC

[Jussi K. Kojootti]

"tired old argument"? Anyone with half a brain is able see that the "commercial use" clause is very problematic, and has been since CC was introduced. I guess you can call it a tired and old argument then, but I'd say it's still relevant -- or are you claiming that the line between commercial and non-commercial is now easy to draw?

Re:The catch with CC

[AaronStJ]

A case that recently came up was that somebody took a photo of a kid, and then that photo was picked up by a company that used it for commercial purposes. The child's parent never signed a release for the photo.

Now, this isn't a problem with CC per se, but people will often license content under CC without realizing that, technically they may not have all the rights to do what they are doing.

This isn't a problem with the CC at all, or even with the photographer. The photographer in the case you mention had every right to post the photo under any license he wanted to, including a Creative Commons license without the "No Commercial Use" tag, or heck, even public domain. By releasing the photo under CC, the photographer is only addressing the copyright of the photo, not other issues such as the need for a model release. Further, it is the publisher of an image (in this case, Virgin Mobile) who is responsible for making sure there is a model release. Again, this has nothing to do with copyright. The copyright on an image may be free and clear, even with no model relase in place. And as the sole creator of the image, the photographer is free to license the image under any license he or she wants, regardless of the existence of a model release or really any other legal complication for publishing the photo that may exist. The photographer is simply saying it's ok to use the photo commercially from a copyright point of view

Re:The catch with CC

[autophile]

Now, this isn't a problem with CC per se, but people will often license content under CC without realizing that, technically they may not have all the rights to do what they are doing.

I still don't understand that. The same problem applies to ordinary copyright. People can claim copyright over pictures of kids when a release was not obtained from the parent.

The argument you seem to be making is that users of CC are more stupid than users of plain old copyright. That's not an argument against CC. That's an argument for education.

Now why is this different from using the default copyright license? Because in that case, the areas that tend to get you into trouble are not permitted by default. If you go to my site and take a copyrighted image and use it commercially, you've clearly broken the law. If you go and take my CC licensed image, you're okay with me, but it doesn't mean I was okay in the first place.

That last sentence didn't make much sense, but I still just don't see the difference. I can copyright my photo, put it up on the web, and negotiate any terms with any company I want to it. Just because in the normal, 20th-century model, I require each individual company to come to me to negotiate a license for my copyrighted work, does not mean that there is something wrong with another model which does the negotiation for you, which is what CC is.

--Rob

Re:The catch with CC

[Phanatic1a]

A case that recently came up was that somebody took a photo of a kid, and then that photo was picked up by a company that used it for commercial purposes. The child's parent never signed a release for the photo.

Now, this isn't a problem with CC per se, but people will often license content under CC without realizing that, technically they may not have all the rights to do what they are doing.

Your example has nothing to do with such a situation. I don't need to obtain a model release when I take a picture. An eventual *publisher* of that photograph needs to obtain a model release prior to publication. The photographer is typically the one who does this because, hey, he's there, and he might have problems selling his photos to someone who wants to publish them if he can't give them the signed release form along with the photograph, but fundamentally the requirement to have a release rests on the publisher, not the photographer.

If I, as a photographer, leave a stack of photos on a table and say "Here, take one, do what you want with it," then as far as I'm concerned, a publisher can take one and do what he wants with it. But *my* generosity in regards to the license of the photo doesn't absolve the publisher of his legal requirements to obtain a license from the depicted model. That's a matter of law that has *nothing to do* with a relationship between the photographer and the publisher; the photographer can't absolve the publisher of that responsibility, and it's the publisher's duty to know that.

Re:The catch with CC

[sterno]

In the end, it all comes down to a simple rule of thumb: it all depends on what somebody is willing to sue over. I mean at the end of the day copyright is a pretty ephemeral concept. Is google indexing my image commercial use? Probably not, but I could certainly try to sue them and find out (though I expect the court would rule against me).

If Johnson and Johnson used it as part of a free brochure I might still be able to sue because it's clearly a promotional item for them which has some tangible monetary value to them. Whether I'd win or not, hard to say. I mean at the end of the day, I probably don't have the resources to sue over something like that unless it's pretty egregious and I could get a lawyer to take the case for a cut of the loot.

I've had images of mine used in blogs before and the blogs run ads, so is that commercial use? I don't see it as such, but I suppose I could have. I can't say as I've read the CC license legalese version, nor could I understand it if I did I suspect, so it may address that fine point. Mostly my concern is if somebody came in and used my photo in an advertisement, or actually sold prints of it. That would bug me. Otherwise, have at.

Re:The catch with CC

[Bill_the_Engineer]

By releasing the photo under CC, the photographer is only addressing the copyright of the photo, not other issues such as the need for a model release. Further, it is the publisher of an image (in this case, Virgin Mobile) who is responsible for making sure there is a model release.

Isn't the photographer a publisher when he (or she) posts the photograph on flicker and makes it public? If so, wouldn't the photographer need to secure a model release prior to posting the photograph? Wouldn't the photographer need a model release before licensing the photograph under the CC? After all the point of licensing something is to make it available to the public...

Re:The catch with CC

[muridae]

This isn't a problem with the CC at all, or even with the photographer. The photographer in the case you mention had every right to post the photo under any license he wanted to, including a Creative Commons license without the "No Commercial Use" tag, or heck, even public domain. By releasing the photo under CC, the photographer is only addressing the copyright of the photo, not other issues such as the need for a model release. Further, it is the publisher of an image (in this case, Virgin Mobile) who is responsible for making sure there is a model release. Again, this has nothing to do with copyright. The copyright on an image may be free and clear, even with no model relase in place. And as the sole creator of the image, the photographer is free to license the image under any license he or she wants, regardless of the existence of a model release or really any other legal complication for publishing the photo that may exist. The photographer is simply saying it's ok to use the photo commercially from a copyright point of view

Yes, it is a problem with the photographer. A license to use a work implies that the person licensing it has the authority to do so.* While it would be nice to blame the 'Big Corporation' for this, and they do bare some responsibility, it is not just their fault. The photographer, in putting the picture up for possible commercial use, implied that they were authorized to release it that way.

The best case I could see is that "Big Corp" agrees not to sue the photographer if family agrees not to sue "Big Corp". Otherwise, family has a valid case against both the photographer and "Big Corp" while the company has a case against the photographer for their loss both in the advertising campaign and the loss of the other lawsuit.

*Not a lawyer, but I did stay at a holiday inn express spend the summer reading about photography law.

Re:The catch with CC

[Josef Meixner]

What exactly does constitute commercial use? Can you answer if any of my examples constitute commercial use? Do ALL of them? What did you bring to the argument besides an attempt at belittling me?

Your examples were:

So what happens when Google Images shows your Flickr pics as search results with ads on the page? That's commercial use isn't it?

I don't know about your jurisdiction, in mine (Germany) judges have rules, that it isn't. As you put up the images without restrictions you implicitely gave your ok for users to see them and also for search engines to display them. Ads on the search page are irrelevant.

What if Johnson & Johnson put your picture on a free brochure about baby shampoo?

Commercial use. Being free has absolutely nothing to do with if it is commercial or not. If they use it to support their business then it is commercial.

What if the same company used it for a free AIDS test brochure?

I would say, that is probably also commercial. But I am not entirely sure about it, a judge would have to decide. But if asked I would license it for free for that, as CC is not exclusive it is possible.

What if a non-profit used it for the same brochure?

I don't see why "non-profit" matters if it is commercial or not. If they live from donations and use my photo for that purpose I would see it as commercial use.

So back to my original question... How do you determine what is commercial use?

I don't. If I think it might be commercial use I will ask a lawyer, if he suggests it is, I would have to sue the violating party and then see, if the judge agrees with my lawyer. I understand under commercial use when a company uses something to do its business.

What if I use a picture you put under CC non-commercial, non-derivative on my "free" website promoting my specific distro of Linux, which I give away for free? What if I gave it away for free but called it Verizon Linux and just used it as promotion for my cellular network?

I think the latter would also constitute commercial use, without the promotion part of a commercial entity I would see it as noncommercial. But in the end, it isn't me who defines it, but the law and a judge. To enforce my copyright I will have to sue.

Re:The catch with CC

[jvkjvk]

Broadly speaking CC works well, but with photography, it's a particularly thorny issue because there's a lot more complexity in how copyright and other legal issues work with a photo. The problem you tend to run into with CC is that people use it pretty liberally without thinking about the consequences of it. The vast majority of people generating all this media under a CC license don't really understand all the ramifications of it. A case that recently came up was that somebody took a photo of a kid, and then that photo was picked up by a company that used it for commercial purposes. The child's parent never signed a release for the photo. This is a model release issue, not a CC license issue. The company did not do due diligence and obtain a model release from the person in the picture and thus wasn't legally able to use the photo anyway, nevermind the CC license. If I put a picture of you in the public domain, it still doesn't give a company leave to use the photo - they must obtain a release from the person in the photo.

Now, this isn't a problem with CC per se, but people will often license content under CC without realizing that, technically they may not have all the rights to do what they are doing. When I take photos, I put them on Flickr under a CC license but I use the no commercial use clause. This simplifies matters because, given that it's not for money, there's far less implications for somebody using my images. I would say that you are incorrect - someone who takes a photo has every right to license the copyright however they want. The license is for the photograph, which the photographer does have the copyright to. Does that mean that as a user I can take that photo and do whatever I want with it? No! Do your due diligence if you want to license a copyrighted work - there might be issues for the licensee (and probably are if you want to use it commercially).

Now why is this different from using the default copyright license? Because in that case, the areas that tend to get you into trouble are not permitted by default. If you go to my site and take a copyrighted image and use it commercially, you've clearly broken the law. If you go and take my CC licensed image, you're okay with me, but it doesn't mean I was okay in the first place. Nobody's likely to sue you for just showing an image on your Flickr account, but it's very different when you're talking about using an image in marketing materials, etc. So, you are saying that if I falsely claim to have copyrighted a particular work (is this what you meant by "it doesn't mean I was okay in the first place"?) and you use it commercially you've clearly broken the law? Perhaps, but I've clearly broken the law first, by putting a CC license on something that I don't own. Your own malfeasance is much narrower if you used the work in good faith. You might have to take down the work, for example, right on up to paying royalties and damages (if you used it commercially). But as others have pointed out this is not a flaw with CC at all - it's the same as if I removed your copyright and inserted mine instead (no CC involved!).

If you're referring back to the model release issue I believe our current crop of laws cover that nicely. The gist of which is (I believe) - it's okay to put up pictures on Flikr with any license without obtaining model releases for the people involved IF you don't use any of those commercially. If someone does want to use them commercially (including the original poster) they must obtain a release.

Re:The catch with CC

[AaronStJ]

Actually, I thought about this as I was writing my post, and I'm not sure if a photographer needs a model release simply to post a photo on flickr. It seems like they should, but nobody seems to be making a fuss about it. Even if the photographer did need a model release to publish on flickr, this is not a copyright issue, and is seperate from applying a copyright license to the work, which is well within the photographer's rights.

Further, even if the photographer should have had model release and didn't, additional publisher aren't absolved of responsibility for making sure a model release exists, and are still liable if they don't have one. They must do due dilligence.

And, again, Creative Commons licensing only addresses copyright. It does not address the existence of a model release. These are two seperate issues. The legal text of the Creative Commons licenses make it clear that is a copyright license. They make not assertion that there are no other legal problems with distributing the work.

Re:The catch with CC

[AaronStJ]

Creative Commons only addresses copyright. That is all. It implies the photographer has the authority to give up some of the rights reserved by copyright. That is it. And the photographer does have that authority. The text of the Creative Commons licenses include:

Unless otherwise mutually agreed to by the parties in writing, licensor offers the work as-is and makes no representations or warranties of any kind concerning the work, express, implied, statutory or otherwise, including, without limitation, warranties of title, merchantibility, fitness for a particular purpose, noninfringement, or the absence of latent or other defects, accuracy, or the presence of absence of errors, whether or not discoverable*

The license explicitly makes no guarantee that the work is completely free to use in any other than a copyright sense. The photographer is free to license a photo under these terms. A company is not allowed to publish the photo without a model release. It's that simple.

*case changed to avoid lameness filter

Re:The catch with CC

[muridae]

Creative Commons only addresses copyright. That is all. It implies the photographer has the authority to give up some of the rights reserved by copyright. That is it. And the photographer does have that authority. The text of the Creative Commons licenses include:

Unless otherwise mutually agreed to by the parties in writing, licensor offers the work as-is and makes no representations or warranties of any kind concerning the work, express, implied, statutory or otherwise, including, without limitation, warranties of title, merchantibility, fitness for a particular purpose, noninfringement, or the absence of latent or other defects, accuracy, or the presence of absence of errors, whether or not discoverable*

The license explicitly makes no guarantee that the work is completely free to use in any other than a copyright sense. The photographer is free to license a photo under these terms. A company is not allowed to publish the photo without a model release. It's that simple.

*case changed to avoid lameness filter

Good catch. I didn't spot that in reading through the license. Wasn't really looking for it, either. Though, looking at it, that clause alone would be enough to keep me away from the CC license in any further use; or at least get written proof that the licensor has the copyright and ability to license the work. That makes a lot of other things more difficult, I suppose.

Re:The catch with CC

[tepples]

So what happens when Google Images shows [CC-by-nc-*] pics as search results with ads on the page? That's commercial use isn't it? It's also commercial use when Google Images indexes and thumbnails search results from sites that have predominantly all-rights-reserved images. Either way, it's more than likely exempt from copyright. An argument under US law, for example, would use fair use (17 USC 107) and the search engine rule (17 USC 512(d)).

What defines commercial use? CC-by-nc 3.0 and the other nc licenses spell it out. I'll quote the relevant section to make it easier for all of us to RTFL:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works. I'm assuming that case law defines "commercial advantage".

Re:The catch with CC

[dangitman]

After all the point of licensing something is to make it available to the public...

Uhhh, no. Most licensing agreements are between two private parties. A large number of licensing agreements specifically prohibit dissemination to the general public.

Re:The catch with CC

[cyxxon]

I thought I would just throw in here that on DeviantArt you are expected to include a model release when you upload a picture of a person, I know I was asked to. I don't actually remember the wording of the asking, and even if I uploaded / send it, but it seems that maybe Flickr should look into that...

Re:The catch with CC

[JasterBobaMereel]

This is not a problem with CC licences but with copyright law (or Lawyers...)

1. If you licence a photo you do not own with *any* licence but the original the original owner might be able to sue anyone using it under your licence

2. If you licence a photo you do own with *any* licence you might still need permission from the subject

3. If you licence a photo you do own with *any* permissive licence you could then re-licence it under another licence, claim you never licenced it under the permissive licence and sue the users

A restrictive licence only does not help with any of these but you are less likely to be able to get away with the switcheroo game ...

Re:The catch with CC

[Bill_the_Engineer]

I agree the model release has nothing to do with Creative Commons licensing. I was only addressing the part of your comment regarding the photographer's responsibility in the matter.

I think that, regardless of the media, it is the publisher's responsibility to insure all legal measures are taken when publishing content NOT some third party license organization.

Re:The catch with CC

[WNight]

Basically, no model release is required for editorial use (news) but one is required for advertising usage.

Taking a picture for the purpose of showing what was happening is fine regardless of the wishes of those in the photo.

You're totally right about the CC though - it lets you copy the photo which you otherwise would not have been allowed to do. It doesn't legalize all uses of that photo - but it removes copyright concerns.

In other words if you download porn you may be criminally charged, but if it was CC licensed the distributor could not sue for damages.

If you download a CC photo of a person it's not a copyright violation, but using that photo in a advert for herpes medication could result in a civil suit unless they specifically agreed to release their rights in that area.

Re:The catch with CC

[Bill_the_Engineer]

Uhhh, no. Most licensing agreements are between two private parties. A large number of licensing agreements specifically prohibit dissemination to the general public.

Well there is public and there is "general public" (grin). I see your point, and sort of agree. What I meant to say was "After all the point of licensing something Creative Commons is to make it available to the public..."

Re:The catch with CC

[WNight]

There's no extra difficulty. If I *sell* you an exclusive license to reproduce one of my photos you'd still need specific model releases to use them in advertising. The CC is just like this, but without the selling step.

There *needs* to be a model release for all advertising images of (living, identifiable) people.

Regardless of where you got the image. You can take it yourself, buy it, download it from flickr under a CC license, or download it without permission, the model still has the same rights.

I could sell you a hammer, give it to you, or you could make it on your own, but you're still not allowed to kill someone with it.

Re:The catch with CC

[WNight]

It's editorial use vs advertising use, roughly.

A commercial entity can publish a photo without model release if it's used to illustrate something that happened. Documentary usage.

Advertising use, because it purports to show the model endorsing a product/etc, is limited even non-commercially.

Re:The catch with CC

[jvkjvk]

Cool. Thanks for the succinct info!

Re:The catch with CC

[neil-ngc]

It's a tired old argument because it's not related to CC. It is commercial use, so the CC license doesn't apply...the right to commercial use is reserved. So we fall back to copyright. But copyright law includes fair use clauses. And search engine use of web material is now clearly established in most jurisdictions as fair use.

On a more serious note..

[east coast]

From the blurb: I would like for the Slashdot community to clarify matters.

Yeah, and people in hell want iced water.

Seriously? This is not the place to look for anything substantial. Most Slashdotters are not lawyers (myself included). Few know the actual law and even less are able to separate the standing law from their Utopian ideals. Slashdot makes Wikipedia look like an absolute braintrust in comparison.

And that's not to say that people shouldn't express themselves. Not at all. What it is to say is that if you're looking for the solid leggings of today's law this simply isn't the right place to look. Tons of posters have all kinds of good ideas and good intentions but that's not going to get you anywhere if you find yourself standing in front of a judge. There is a lot of talk on Slashdot about change in the laws involving IP but so far I haven't seen anything aside from talk. From time to time I like to call one of the more vocal anti-IP talkers out and tell them why don't they openly break the law and let me know how their reasoning works out in court. I have yet to find anyone who takes up this challenge. Regardless of where we stand on IP law, we all know the basic truth behind it and all the intellectual masturbation that goes on around here doesn't amount to a hill of beans in the face of the reality of the situation.

And to be very honest, most of the ideals that people spread around involving the lessening or even revoking of IP laws simply can't stand up in our society. We have far too much riding on this structure and drastic changes to that structure are going to cause wide spread hardship. I don't think that today's society is built out of the kind of people who are willing to bear hardship for any real length of time to right the wrongs of yesteryear.

It's going to be both a sad and comic day if most of the changes that people suggest and support around here ever come into being. If we want serious change that isn't going to leave itself open to short term corruption we're all going to have to take a loss. Most people here don't care about loss until it's their loss that we're talking about. The revolution will not be on Slashdot.

Overblown

[cfulmer]

So, there are some risks with using CC licenses:

(1) the fact that something claims to be licensed under creative commons doesn't mean that it actually is. I can't slap a CC license on your picture and re-use it.
(2) some states have a "right to publicity," which means that if you're going to make a commercial use of my picture, you have to get a release from me. CC licenses do not come with such releases.

His third article is partly exercise in fiction -- he takes the view that a CC license is personal to each licensee, and that the licensor can just decide to stop licensing to new licensees. I have a tough time believing that any U.S. court would agree with this--once you've licensed under CC, you're probably "estopped" from denying the license. (In other words, since other people depend on your license, you can't pull the rug out.) The point about "keep track of where you got it from, and keep proof that it's under a CC license" is a good one, but you have to do that with any picture CC or not.

The part about 'since you haven't registered it, you won't be able to get statutory damages' is only partially true -- if there are serial infringements (like, say, in an ad campaign), you can register and then claim statutory damages for any infringement after registration. And, that's true whether you use a CC license or not. Plus, it's not at all clear that "actual damages" are zero -- it seems to me that actual damages would be what the infringer would have had to pay for a license. Since there's a good market in photo licenses, this isn't that hard to figure out.

(If you need legal advice, find a lawyer for advice specific to your situation.)

Good question

[Spazmania]

Dan Heller poses a great question. After describing a situation where only 2 of 500 polled students thought downloading a copyrighted work was wrong, he asks:

What do we do about a society that is already predisposed to ignoring copyright in the first place?

The answer is simply this: where the law fails to reflect the will of the people it is the law, not the people, which is in error.

Re:Good question

[quanticle]

I cannot agree with that. If the law is always updated to reflect the will of the people, then all you have is mob rule. The rights of the minority must be protected, even if the minority is currently unpopular. And yes, I do believe that the right to get paid for your labor is a fundamental right.

Re:Good question

[the phantom]

And if you asked the same question of 500 photographers, novelists, poets, and composers? Do you think that, perhaps, the answer might be different? Which people are to be protected by the law?

Re:Good question

[Spazmania]

The rights of the minority must be protected, even if the minority is currently unpopular.

By that logic, murder must be acceptable because a minority (namely murderers) want their right to kill protected.

Your basic premise is correct: a majority must not be able to abuse a minority merely because they have the votes. However, the minority should rarely have the right to compel the behavior of the majority and then only with excruciatingly careful attention to fairness. Modern intellectual property law got its start that way those many decades ago, but the path is long lost.

I do believe that the right to get paid for your labor is a fundamental right.

As a software developer, I'm inclined to agree. But being paid for your work is entirely different from being able to indefinitely control the entire idea-space which branches from the notions embodied in your work. Disney doesn't just assert ownership of a drawing; they legally own of a piece of the American psyche: those little parts of your and my minds which are indelibly stamped with a certain red-pantsed rodent.

Nor is it fair for you to do work once and then be paid for it over and over again. Do that with any physical work-product and such a thing is criminal fraud. That privilege should come with a price. Current IP law exacts no toll to balance work-once sell-many. When meaningful additional work was needed to make a copy, there was no need.

Technology has changed this aspect of intellectual property and folks have ever seen it as righteous to disregard an unfair law. Only 2 of the 500 thought downloading was wrong, but surely 498 of the 500 would have agreed stealing a physical CD was.

Re:Good question

[Microlith]

By that logic, murder must be acceptable because a minority (namely murderers) want their right to kill protected.

Nice straw man. No one has the right to murder. Everyone has the right to life, liberty, and the pursuit to happiness, at least as written in the U.S. Constitution and murder committed by one person overrides the rights of another.

Modern intellectual property law got its start that way those many decades ago, but the path is long lost.

No, it's not long lost. It's just that the people you have to oppose to correct the law are far too powerful. You'd have to equal their political power before you could abolish copyright, but if you had that power you might realize it'd be unwise to eliminate it.

Technology has changed this aspect of intellectual property and folks have ever seen it as righteous to disregard an unfair law.

No, no no. This is SLASHDOTTERS pasting their personal ideals on other people's actions. If you ever stopped and inquired with people who download, it's because they can get all the entertainment they want for FREE. They don't want to EVER compensate creators, because they're just as greedy and selfish as the companies pushing for stronger copyright laws.

Current IP law exacts no toll to balance work-once sell-many.

Sure it does, it holds it outside the realm of the public domain for a duration (excessive, yes) during which the creator can control distribution.

But then, this is slashdot, where the destruction of copyright is the goal first and foremost, never mind that it'd wreck the GPL, CC, and cause the massive flood of creative works being produced today to slow to a trickle (what do you mean you don't want to work for free?)

Re:Good question

[skeeto]

and cause the massive flood of creative works being produced today to slow to a trickle

That's right! Look in your history books and you will see that there were no creative works made before copyright law was around. :-P

Re:Good question

[Microlith]

That's right! Look in your history books and you will see that there were no creative works made before copyright law was around. :-P

Are you playing the fool or actually one?

Did I say they'd not be made? The very sentence you quoted has me saying they'd slow to a trickle which, relative to modern times, is the rate at which they were created. It's the difference between drinking from a freaking firehose versus a garden hose with a crimp in it.

Or do you seriously think anyone will put up $3 million or more per episode of a TV series if they have zero hope of making back what they invested in it?

Re:Good question

[Spazmania]

You'd have to equal their political power before you could abolish copyright

Who's throwing up a straw man now? I'm pretty sure I didn't say anything about abolishing copyright. I'm pretty sure I didn't even imply it. I don't even consider it a worthwhile goal.

What I want to see is corrections to IP law. To wit:

1. No more lifetime-plus copyrights. You get a couple decades and that's it. If it doesn't become popular until 40 years after the fact, well that's just rough luck.

2. Full disclosure! If I can't build your invention from the patent application or create a copy of the work from your copyright filing then it is insufficient to garner protection. Patents should be engineering documents, not legalese.

3. No post-sale right to control. An owner of a copy can do as he pleases with that one copy. Convert the format. Edit the scenes. Split it in half and sell the halves separately. Anything except make new copies. Its his property now, not the authors.

4. No right to control distribution. You can choose the cost per copy but after than anyone has a right to make copies so long as they pay you for them.

5. No exclusive right to make derivative works. If I want to write a story in your world setting, I can do it and sell it as much as I want, as long as it accompanies a legally acquired copy of your work as well.

6. Discourage DRM. The rights holder should have a choice: DRM or statutory damages. One of the other but not both.

And sadly, you're right. I'm not the King of America and I haven't the political power. :)

Re:Good question

[Half-pint HAL]

1. No more lifetime-plus copyrights. You get a couple decades and that's it. If it doesn't become popular until 40 years after the fact, well that's just rough luck.

That might work, it might not. I agree that in most countries, durations are now excessively long, but if they became too short there is a genuine risk of stifling innovation. If all copyright worldwide was 40 years from publication, the market would now be saturated with free public domain material. You think TVs full of repeats now? It would be ten times worse. Broadcast the free or the expensive? Star Trek: TOS or Enterprise? It's a no-brainer.

We're on the cusp of a creative crunch: copyright protection in the 20th century has created unprecedented growth in creative output, but as the fruits of that growth fall into the public domain, economics will cease to favour such innovation. The industry can't even prepare for this: the cost of star actors and directors is just getting more and more stupid, and further and further from competitive.

2. Full disclosure! If I can't build your invention from the patent application or create a copy of the work from your copyright filing then it is insufficient to garner protection. Patents should be engineering documents, not legalese.

Agreed.

3. No post-sale right to control. An owner of a copy can do as he pleases with that one copy. Convert the format. Edit the scenes. Split it in half and sell the halves separately. Anything except make new copies. Its his property now, not the authors.

In principle, I'd agree with this, but you can't split a DVD without making a copy. Two copies in fact -- you couldn't pass on the original to both, so how do you prove that they're both legitimate artifacts? One of the problems with the current debate in geekdom is that too many of us refuse to accept that the physical domain is still important.

4. No right to control distribution. You can choose the cost per copy but after than anyone has a right to make copies so long as they pay you for them.

Not practical: value != cost. The value of a copy of a song on a CD, for example, is much higher than the value of the same song playing on a jukebox during a fight-scene in a Hollywood film. The CD version is a work in its own right and can be appreciated in its own context. On average, you listen to a CD that you've bought more often than you'd watch a DVD you've bought. Now if we're setting a flat licensing rate, you're going to have to add the cost of an average CD to the cost of an average DVD, because sure as Hell they're going to set the rate by CDs. (With the odd exception, like the exceptionally odd Moby, musicians make the majority of their cash through direct sales, not sublicensing into others' works. This is of course not the case with photographers.)

Plus I still don't want the KKK to be able to use my works in their propaganda, paid for or not.

5. No exclusive right to make derivative works. If I want to write a story in your world setting, I can do it and sell it as much as I want, as long as it accompanies a legally acquired copy of your work as well.

Third-party derivative works risk my ability to profit from sequels. It allows another party to change the public perception of my world, diluting my vision and damaging my work. Imagine you're writing a series of books, and in between the publication of parts 2 and 3 an incredibly popular fan-fiction scene starts up and kills off my characters. Three books are released by different authors furthering the world in an opposite direction from which I intended -- including the two aforementioned characters saving the world in episode 9. A stupendously large chunk of my readership are now disengaged from my reality and are no longer interested. I'm left selling less books, and most of the books I am selling are just more reprints of the first book that'll never be read. Probably on a CD licensed under your proposal 4.

Oh, and the KKK have also decided that all the good guys are white, and the bad guys aren't. Again, I don't want people to subvert my work for objectionable propoganda.

HAL.

Re:Good question

[rlk]

1. No more lifetime-plus copyrights. You get a couple decades and that's it. If it doesn't become popular until 40 years after the fact, well that's just rough luck.

That might work, it might not. I agree that in most countries, durations are now excessively long, but if they became too short there is a genuine risk of stifling innovation. If all copyright worldwide was 40 years from publication, the market would now be saturated with free public domain material. You think TVs full of repeats now? It would be ten times worse. Broadcast the free or the expensive? Star Trek: TOS or Enterprise? It's a no-brainer.

We're on the cusp of a creative crunch: copyright protection in the 20th century has created unprecedented growth in creative output, but as the fruits of that growth fall into the public domain, economics will cease to favour such innovation. The industry can't even prepare for this: the cost of star actors and directors is just getting more and more stupid, and further and further from competitive.

What's the problem with reruns, anyway? In any case, if TV stations broadcast unpopular material, they'll feel it in their ratings. Copyright's supposed to provide an incentive to create (whether it does is another matter); it's not supposed to permanently lock out competition. As for the cost of star actors and directors: either they take a pay cut, or people find ways around it (use lesser known actors who are just as good).

4. No right to control distribution. You can choose the cost per copy but after than anyone has a right to make copies so long as they pay you for them.

Plus I still don't want the KKK to be able to use my works in their propaganda, paid for or not.

They can make certain uses of it anyway, under fair use.

5. No exclusive right to make derivative works. If I want to write a story in your world setting, I can do it and sell it as much as I want, as long as it accompanies a legally acquired copy of your work as well.

Third-party derivative works risk my ability to profit from sequels. It allows another party to change the public perception of my world, diluting my vision and damaging my work. Imagine you're writing a series of books, and in between the publication of parts 2 and 3 an incredibly popular fan-fiction scene starts up and kills off my characters. Three books are released by different authors furthering the world in an opposite direction from which I intended -- including the two aforementioned characters saving the world in episode 9. A stupendously large chunk of my readership are now disengaged from my reality and are no longer interested. I'm left selling less books, and most of the books I am selling are just more reprints of the first book that'll never be read. Probably on a CD licensed under your proposal 4.

Again, copyright is supposed to provide an incentive to create to benefit society, not to achieve maximum revenue potential for the creator. Fan fiction also expands the market for the entire setting.

See Against Intellectual Monopoly for another take on the whole issue.

Re:Good question

[Half-pint HAL]

Fair use presumably doesn't include the soundtrack to a televised ad for the Bigotted Neo-nazi Party or the like. I don't want them using my work that way.

I don't have time to wade through that whole PDF right now, but the author set off on the wrong foot with his criticism of James Watt. The fact that Watt had an abnormal patent extension granted does not invalidate the normal duration of patent. The fact that Watt's company were the market leaders after the loss of exclusivity does not mean that they would have been able to acheive any significant market penetration if they had had no protection on their market lead. Had things gone the other way, and the UK government decided that invalidating the patent early was in the public interest, it is surely likely that subsequent capitalists would have favoured a low-cost steady-state market over costly research with no protection on the outcome.

Fan fiction also expands the market for the entire setting.

Don't I get to choose my own market for my own setting? Imagine I was writing a trilogy of satirical sci-fi novels. In between my official stories, out come unofficial fan fiction, including various straight, gay and interspecies love stories, including public weddings and that sort of stuff. Aw s**t. The twist coming in my third part, which I was subtely, carefully bulding up to in the other two, was that modern society is substituting technology for emotion, so we were going to find out that the children's parents have never met, and everything is done in a lab. Thus the fan-fiction has destroyed my world and my work.

While you can argue that technological innovation is not creative, so does not naturally favour a monopoly, truly creative works are not commodities, so are natural monopolies. I own my thoughts, and damned if I'm going to let you rewrite them.

HAL.

The "whole" license isn't the problem

[CodeShark]

The problem is that there are ways to game parts of the license in an unscrupulous manner that make it somewhat business risky to use a CC licensed image, unless as a company you do the proper amount of paperwork to document your license.

My reading of this is, "no problem so long as the source for the cc licensed image source is the original producer" because no publisher in their right mind should use ANY image without the proper license contract in hand, but if the licensor isn't the source of the original, the company may be using a fraudulently obtained resource. Seems sort of like the fact that f a company passes on a counterfeit bill, the US Treasury comes down on them like a ton of bricks, even if they weren't the original producer of the bogus bill.

My question is, can the CC licensing schemes be fixed to provide a layer of protection, or not?

WANAL

[emkman]

I would like for the Slashdot community to clarify matters. Sure, I can give you my expert legal opinion as soon as I get back from getting medical advice from my butcher and some advice on my love life from my carpenter.

Problem with Licensor, not License

[Anonymous Coward]

There is a problem with people relicensing copyrighted work under the CC license and having subsequent users of that copyrighted work sued by the original owner.

If I take a work that is not mine and attempt to license it to somebody else (under ANY license), that's my fault, not the fault of the license. CC just happens to be an easy target, because a lot of people will use material that is clearly labeled as a shared resource. The bad goes to the person incorrectly applying the label, not the label itself.

If this problem is a very common and very serious flaw in CC licensed stuff, then add a provision to the license saying the person is taking responsibility for the material they place under the license. If it truly is your own work, then you've got nothing to worry about. If you've misused somebody else's work and placed it under CC without obtaining a proper license yourself, then you're the one without the chair when the music stops. (You can also chain this; obtaining a work under CC releases the person obtaining it from responsibility. So, if you start with CC works and re-release under CC, you can point back to the person holding the original responsibility.)

Seems that those who poison the well should be the ones responsible for cleaning it, doesn't it?

Also, CC should create a metadata scheme for license revocation. Don't get me wrong. The person who releases under CC shouldn't be able to revoke it, but rather CC itself can "revoke" material (in a computer-readable way) that was improperly relicensed under CC by somebody else.

The problem is not Creative Commons.

[Anonymous Coward]

The problem is not the creative commons license, the problem is the person who used an image without obtaining the proper releases and authorization from the creator of the work.
Just because an image is under creative commons, doesn't mean you should use an image without contacting the copyright owner and obtaining the proper legal paperwork permitting you to use the image. This includes model releases and confirmation of the license terms. Anyone who publishes some one else's images who doesn't do their homework is a fool who should be sued for stupidity.

Fraudulent licensing doesn't just apply to CC

[AxelBoldt]

The core point of his first article seems to be: whenever you use a CC-licensed photo, you cannot be sure that it was actually CC-licensed by the true copyright holder; maybe a kid stole it from some website and uploaded it to Flickr under CC.

That's a valid concern. Except it applies to all licensing, not just to CC.

Why would the kid upload it to Flickr under CC? Wouldn't it make much more sense to sell the stolen photo to a stock photo agency, claiming that he owns the copyright and that all model releases were on file? If you buy a photo from an agency, you always run the risk that the true copyright owner will later show up and sue you. Of course then you could try to sue the agency, and they would helpfully direct you to the kid who started it all. It doesn't matter, you're still liable.

Re:Fraudulent licensing doesn't just apply to CC

[bill_911]

In order to discourage image floods from amateurs, stock agencies require images with very high pixel counts. Very few images posted to Flickr have enough pixels to be accepted by stock photo agencies.

Socialist Libertarian? Hilarious.

[spun]

Okay, I am a social anarchist. Libertarians are individualist anarchists. Man, nothing pisses off an anarchist more than confusing which camp they're in. But more to the point, the definition of anarchism precludes forcing your ideas onto anyone. So neither type of anarchist would demand that a group of people give their labor away. We socialist anarchists might apply sanctions such as restriction of trade or other benefits to those who don't agree to play by our rules, but we would never force anyone to play by our rules.

As for Ron Paul, he's an idiot like all the rest of the libertarian crowd. I'm throwing my vote away on a Kucinich write in.

Dan Heller is infringing the NYT copyright!

[Tsu Dho Nimh]

He agonizes about the possibility that someone might get sued for using a CC-licensed photo.

He is curiously unaware, or oblivious to the possibility, that the New York Times' lawyers may want to chat with him about his copy-and-paste of an article from last year's NYT Valentine's day drivel.

Dan, just because it's on the net doesn't mean you have the right to use it!

ridiculous

[AlgorithMan]

> suing people who use your CC'd work which you have [...] revoked from the CC license.

imagine you go to a store and the owner says "we increased the price for $Product - you bought one $Product last time you were here, so you have to pay the difference to the new price now"

that would be the exact same matter... what judge in his right mind would approve such a ridiculous claim?

Archive.org

[Anonymous Coward]

Hopefully, these folks will be the dumb ones and your lawyer will find their license still mentioned on other sites like archive.org.

Or, if you blocked sites like archive.org, someone gets wise to your scumbag ways when you try to pull the same stunt twice, makes nice copies of your license in the presence of a notary public, conspicuously uses your stuff to get you to sue, then comes after you with criminal and civil complaints after they demonstrate your bad faith.

A technological solution: digital signatures

[Ichijo]

The problem is that the burden of proof is on the users to show they got it legally, and if you wipe all traces of your CC licensing from the internet then they can't prove it, and you win.

One solution is to provide a digitally signed license with (or perhaps even embedded in) the image file, so anyone who uses the image can prove the license even after all traces have been removed from the internet.

Rest of World

[Roger W Moore]

Broadly speaking CC works well, but with photography, it's a particularly thorny issue because there's a lot more complexity in how copyright and other legal issues work with a photo.

IN THE US. It is worth remembering that there are an awful lot more people not subject to the strange photo copyright rules of the US than are. I understood that CC, like the GPL, was supposed to be a worldwide license, not just a US based one.

Re:Rest of World

[epine]

IN THE US. It is worth remembering that there are an awful lot more people not subject to the strange photo copyright rules of the US than are. I understood that CC, like the GPL, was supposed to be a worldwide license, not just a US based one. IN THE US. It is worth remembering that there are an awful lot more lawyers willing to sue over the strange photo copyright rules than the rest of the world combined. I understand that the CC, like the GPL, was supposed to export American legal culture globally, not just cater to US based legal inequity.

quick reply

[Anonymous Coward]

I've been reading slashdot long enough to know that the summary doesn't always have much to do with the actual article quoted, so I'll just address the summary.

>In the first article he states there is a problem with people relicensing copyrighted work under the CC license and having subsequent users of that copyrighted work sued by the original owner.

That has nothing to do with any CC license, or any license. You can't sell what's not yours, and you can't give it away either, under any license. I guess the message is "caveat emptor" (or "caveat downloader"); but again, that applies equally to content you pay for.

By the way, in the US there is such a thing as an "innocent infringer" [partial] defense. The defendant bears the burden of proof, but if successful, damages are limited to $200, which puts defendants in a good position to make an FRCP 68 offer and avoid trial.

>In the second article he fleshes out these ideas and states that there is an increased risk of being sued if you use a CC license.

Huh? You mean I'll have to actually read the article? No fair! But I wonder if this is one of those "aggressively paraphrased" summaries.

>Finally, in the third article, he states that people can 'game the CC license' for profit, by suing people who use your CC'd work which you have subsequently revoked from the CC license.

The CC licenses are legally irrevocable, but some of the other commenters here have described a scenario in which someone could erase evidence of ever having released content under a license. (In other words, commit fraud.) Again, nothing here specific to any CC license, except that commercial licenses tend to involve money transactions which are arguably more likely to leave a paper trail in the purchaser's possession. This scenario is possible, but the defense is simply to keep records: make a note of where you found the file, what the license terms were, etc. (Including dates and URLs; screenshots wouldn't hurt either.) Come lawsuit time, you have documentation to back up your story. Anyway, ask the RIAA what their profit margin has been on lawsuits lately (don't confuse strategic lawsuits with money-making lawsuits). I don't predict a big wave of Nigerian license-backsies scams.

The Real Issue

[autophile]

I don't think the real issue here is specifically CC. I'm reminded of Ze Frank's Anti-Intellectualism song. It's a lot of song and dance pointing attention to one thing to distract you from the real issue.

The real issue is this. We, the unwashed masses, outnumber you, the professionals. For every one of you, there's a thousand of us. We have cheap digital SLR's, digital videocams, music producing software, editing suites... We can generate a hundred thousand times the volume you can, and even if 0.01% of that is pro-quality, we've got you beaten.

We don't make a living at this stuff. We do it for fun. For joy. You do it for money. You are upset if your photography nets you only $1000 this year. We are tickled if anyone thinks our photo is good enough to use.

Damn, I sound like some kind of revolutionary :(

--Rob

The example with the kid...

[Per Abrahamsen]

The specific example was an Australian ad agency using a photo from flickr under a CC license, without getting proper model release. The CC FAQ explains that a model release is also needed. Even without the explanation, the Australian ad agency certainly ought to know about any rules about model release that may apply in Australia.

Unfortunately, someone very early in the discussion on Flick (after kid discovered her photo was used in Australia) mentioned that another model had got US$ 100.000 in compensation. Such numbers can destroy the ability to think, so the parents decided to sue Creative Commons for having written the license. You can read CC's take on it.

There is more nuance here than appears

[pimpin apollo]

Actually, the burden may well be on the plaintiff to prove the license terms.

While the registration certificate creates a prima facie presumption of the works' protectability, it does not create a presumption of infringement. That burden still rests on the plaintiff.

Additionally, unlike fair use, the question of whether or not permission to use the work is an affirmative defense is unclear.

While the existence of a license is an issue the defendant must prove, the terms of the license, at least in the 2nd circuit, is a burden borne by the plaintiff. See Bourne v. Walt Disney, 68 F.3d 621, 631.

Now, as a practical matter you might be right, but as a technical matter, in the scenario you describe, it's possible the burden remains on the plaintiff.

OMGWTFBBQ!!11!!1!

[Anonymous Coward]

nt

clarity?

[crozell]

I would like for the Slashdot community to clarify matters. You must be new here.

Do Professional Photographers "Get It"?

[dogs4ar]

We seem to be running into this issue with professional photographers, recently, and I'm just wondering if it's a clash of cultures. He mentions that David Pogue polled 500 people, and only 2 of them thought downloading movies and music off the internet was wrong. This represents a profound cultural shift in the way we use words and images, folks (see Steal This Film, Part II).

The problem seems to be that Dan Heller keeps throwing words around like "contributory infringement" and "intellectual property" which have no effect on what is actually going on. People are downloading copyrighted music and movies, Dan. Do you think that your content is safe?

At worst, Creative Commons is destroying trust in its own model. It's getting all of these photographers to contribute to the "Flickr Community" which is just as ephemeral and not nearly as snippy as the "Slashdot Community". Then, it tempts you into licensing your photos with the Creative Commons license. Oooh...sneaky. All of a sudden, it's kitty-bar-the-door when your precious photos end up on some scavenger site for extra-terrestrials. Oh noes! I thought that the internets was going to protect me from the bad pirates. Boy, I hope the cave you've been living in has central heating. Maybe the "commercial artists" out there will wake up and stop using Flickr/Creative Commons. It doesn't seem to be touched by the big media companies so they're safe (yeah, right!). Oh, where will I go for all of my copyrighted still images? Um, let's try Google Copyright Infringement, or Images, for short. Boy, that was difficult.

You can always go RIAA on us, but then we can throw Fair Use in your face. The only time that the law comes into it is when you are dealing with a legal entity which is using your photos for commercial gain. If someone downloads your photos and uses them as CD-cover art on a CD containing 100% downloaded music, gee, guess what? No one's making money in this context. Flickr, from what I understand, is a free photo-sharing community. If you want commercial-grade, stick to Getty. They're more your style.

For all of us who think, "Wow! that was a fantastic image, created by an amateur artist. I'm going to promote that in my next non-commercial release of my grind-core trip-hop spoken word album-making tour video," Flickr might be the right place. Just a word about appropriation: If Flickr were serious about preventing copyright infringement, they'd disable Right-Click "Save Image As..." No really, they could totally rail you for it. "You have been caught attempting to save a copyrighted image onto your computer. Stay where you are as the copyright police come to your residence and take away your kids, pets, and houseplants. You are a bad person/lifeform/entity." Go ahead, just try to block that pop-up.

For those of us who are thinking about starting up companies (Lotto, don't fail me now) and hiring yon graphic artist to sketch out a little logo for us, we'll probably sample your work, make sure that it fits with our corporate image (slave-drivers), and commission you to do an original. Why? Because commercial interests aren't ghetto enough to pull images off of Flickr. Dude, that's so ghetto! Who's going to buy into that company? Turns out there's this "venture capital" firm sitting around in East Oakland swimming in piles of $1's and $5's, looking to "cash in" on the dot-com boom. Oops, too late. Seriously, though, any commercial interest worth a bag of salt will want to commission your work, assuming that you are a serious artist and not a crybaby attention whore.

Whoever sold you on the idea that Flickr was some paradise where commercial artists are compensated perfectly for the images they upload and it's all "happies and smileys" is the same guy that sold you the Potemkin Village image of the suburbs. The internet was started by people who wanted free porn and free warez. It really hasn't gotten a whole lot better, except that some folks also learned how to respond to stupid blog posts by employing a slightly greater than 3 word vocabulary (haxxor, w00t, pwnd!).

For all of you elitist fools: if you don't want your s*** jacked, get out of the ghetto.

Email to Dan Heller

[rlk]

I sent the following email to Dan Heller.

Let's just say that I don't agree with you on this. To me, this looks like an attempt to cast unwarranted aspersions on non-restrictive licensing in general, at least as applied to photography.

Creative Commons is just another copyright license (more precisely, set of licenses, but I don't believe that to be terribly relevant). Everything you say applies equally to any other kind of copyright license. Someone could misappropriate a work under a different license, or neglect to get a model release, and to the customer it's totally irrelevant whether the license used is CC or anything else.

It appears to me that what you're trying to say is that any form of distribution other than a signed contract in which money changes hands in return for strictly defined usage rights, and acquiring photographs from any but the best known (with the implication that those are the most trustworthy) sources is dangerous. If that's what you believe, that's fine, but if such a trustworthy source were to use CC, why would there be any greater risk than with any other license? Or is your real point that no such "serious" photographer would use a CC license? Or that the only way to ensure "safety" is for the photographer to restrict distribution?

I could envision a business model in which a photographer makes large numbers of stock photographs (say, that photographer's entire body of work other than specific hired jobs) available under a CC license (requiring attribution), using this library in part as a form of advertisement for custom photography services. For these hired jobs, the copyright of the work product would be given to the client as a work-for-hire, freeing the photographer from having to keep track of the later use of this work. The photographer doesn't mind anyone using the stock photos free of charge for any purpose whatsoever, but wants maximum distribution to maximize the free advertising. In other words, flood the market with free work, and make money on the specific paid jobs. This, by the way, is a business model I'd like to try some day. Ignoring issues such as whether this is an effective way to make money or not (maybe you believe that it isn't and I believe that it is, but if I do this, it's my livelihood, not yours, that I'm putting on the line), what is the fundamental flaw of this as a practice?

...also recognizes personality rights

[tepples]

with photography, it's a particularly thorny issue because there's a lot more complexity in how copyright and other legal issues work with a photo. IN THE US. Wikipedia's article about personality rights mentions eight countries other than the United States known to recognize exclusive rights to personality and one (Hong Kong) where a case appears to be pending.

It IS a problem with CC

[Half-pint HAL]

"this isn't a problem with Creative Commons per se"

Yes it is, although perhaps it isn't a problem with the Creative Commons licenses per se. Creative Commons, the non-profit body have consistently oversold the concept, and crucially have tried to simplify copyright (womething that just can't be done, unless you're a legislator) when they should have been educating people to understand copyright laws.

Creative Commons have encouraged all and sundry to slap licenses on their creations. This all and sundry includes countless pseudonymous abandoned accounts with no contact details. It is impossible to carry out due diligence on such a work. It could be legitimate, it could be an honest mistake, it could be a mischief-maker or it could be a malicious copyright trap. The license is unverified, so legally worthless.

The licenses as they stand would be OK if users were contactable, but that would put users at risk of being flooded with email -- a deluge of both legitimate requests and spam -- so there'd be a heck of a lot less CC users if this was mandatory. At a generous estimate, about 1% of the current figure.

Without widespread takeup, the licenses effectively wouldn't exist; sadly, the compromise needed to bring it into existence was to make it essentially valueless.

HAL.

Re:It IS a problem with CC

[WNight]

How are they trying to simplify copyright? The statutes are the same length as they were before... (Well, longer thanks to the DMCA and other crap.)

What they're trying to do is standardize the process by which you make clear to everyone visiting your website which of your works you are granting them permission to use.

Of course people can vanish making this hard to prove, but meatspace photographers and clients have been dealing with this for years. Keep good records. You'd need to show document when you bought rights to a photo or that photographer could sue you, pretending the sale never happened. If you do this properly you can't be hit for willful violation. If you're afraid of this, hire a notary to verify that the site appears to be offering a valid CC license for the photos. Take a photo of the website on the monitor - if you do this in regular fashion it'd be pretty good evidence of your intent at least.

If I stole a car and sold it to you, you'd be charged with receiving stolen goods if you appeared to have looked the other way. If I faked the papers and you acted honestly and with due diligence, you wouldn't be liable to any criminal prosecution or extended damages in a civil suit.

Photos are the same.

Compulsory Licensing

[zobier]

What bugs me is that CC doesn't seem to protect from Compulsory Licensing, so commercial radio can play e.g. a CCNC work (albeit with accompianing fee, but that's beside the point). No?

"And then a miracle happens"

[argent]

If Flickr were serious about preventing copyright infringement, they'd disable Right-Click "Save Image As..."

How? By magic? It's up to the user's browser to let scripts disable or replace context menus. Any gecko-based browser leaves that decision up to the user... you can disable Javascript completely, or just disable that capability. Look at dom.event.contextmenu.enabled in about:config...

What, you don't use a gecko-based browser? I'm sorry to hear that.

My own followup.

[argv01]

I was forwarded the link to the discussion that has ensued on slashdot,
so I signed up for an account to post this response.

After addressing the specific issues, I will also post what I think is
the solution to the problem. I DO want to see CC succeed--and what I
propose in the end is a good start in that direction. But to understand
it, you need to frame things into context.

My three blog posts tried to make it clear that the problem is NOT the CC
itself, but the context in which it is trying to be applied. I took great
pains to articulate my great enthusiasm and support for CC in all other
contexts, that I am not advocating paid-for photographs, nor do I think
that CC is bad for photographers.

Despite its intent, the CC makes more companies vulnerable than they
were before the CC. At the same time, it also fails to provide the very
protections that it was originally intended to give copyright holders.
Worse, this creates a set of conditions where the domino effect can stain
the CC's perceived value in other areas where it is more appropriate,
and that would be a very bad thing.

> When people don't use the license
> correctly, or don't obey it's terms, that's a problem with the person who
> is guilty, not the license itself.

The question isn't whether anyone's done anything wrong, but the scale
and magnitude in which the infringement claims can arise, regardless
of whether the photographer (through fraud) or the publisher (through
infringement) is doing anything wrong. CC has nothing whatsoever to
address this, thereby providing the means for even completely compliant
users of CC-licensed images to get duped, and for publishers to abuse
the wishes of the photographers that submitted the images..

CC is more harmful than helpful because it gives people the impression
that they can use the image without risk because the copyright holder
has pre-approved the use. Well, that ain't necessarily true, and if
the CC didn't exist, people wouldn't be lead so easily and quickly to
this assumption.

My blog entries pointed out that companies should protect themselves
by confirming the ownership and usability of copyrighted works before
they use them. But the CC doesn't encourage that behavior--in fact,
it subtly _discourages_ it because it gives a false sense of security
to publishers that they don't need to.

Now, if that weren't bad enough, what do you get when you put mass
misunderstandings and confusion together with malcious people who see
deep pockets? Fertile ground gaming the system. And, as pointed out by
one lawyer's email to me, that's already happening. And we can't measure
the scale of this problem because no one on either side of the fence
has incentive to come out with it, and everyone has incentive to settle
before it gets to court, where it could become public. Do we need to
know the scale before we realize it needs to be fixed? I don't think so,
especially when the fix is available.

And here's where we really get to the meat of the problem:

No matter where the user of the photo gets it, it's incumbant on him
assure that the copy he has HAS the CC license! And, there is no way
to do that reliably, short of contacting the owner and asking. That in
itself obviates one of the objectives of the CC, whose very intent was
facilitate the faster and freer flow of creative content. Just because
the Flickr site _says_ that a given photo has a CC doesn't mean that
the copyright holder put it there or assigned the CC. And if various
sites pick up that copy of the image, they are only perpetuating the
distribution of potential misinformation.

And worst of all, because there is no verification process when the
CC is ever assigned, nor a central registry to assure that the image
being put under the CC _is authentic,_ then the conditions are ripe for
abuse. Because the licensee BEARS ALL RESPONSIBILIT

Re:My own followup.

[Anonymous Coward]

You don't strike me as a person who knows what he's talking about. The whole series of blog posts sounds like you think you've found a flaw in the system, and now you're expanding more and more on that perceived flaw instead of actually researching it.
You repeat the same point over and over again without any proof as if repetition somehow makes it an axiom, and you highlight only problems that impact every form of license in the world, not just CC.

More specifically, your series of articles sound exactly like the FUD being spread by ASCAP recently about how CC relates to music, to which Lawrence Lessig (a man who actually knows what he's talking about) has rebutted on his blog: http://lessig.org/blog/2007/12/commons_misunderstandings_asca.html#more

Probably won't work

[Titoxd]

The game is that, I could take one of my friend's photos, and put it up on the likes of Wikipedia. Then, my friend turns around and sues Wikipedia for infringement. In other words, the claim is that the license somehow makes it possible to "game the system", but, as you already pointed out, I don't see how that isn't possible with any license. And Wikipedia would claim that they would be protected by the safe harbor provisions of Section 512 of the DMCA, punting the lawsuit back to B...

Should read: Copyright Law Flawed

[itsdapead]

The real problem is courts handing out windfall awards in copyright cases that are vastly disproportionate to any real damage done, and allowing copyright holders to sue the party with deepest pockets rather than the morally responsible one. As long as this goes on, any use of potentially copyrighted material is a hostage to fortune.

style of the attribution is required by license

[pbhj]

"Attribution. You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work)."

from http://creativecommons.org/licenses/by-sa/3.0/ (same as v.2.0 incidentally)

See section 4(c) of the license, which is ambiguous (and contains a typo "Ssection"). We must supply various attribution data if supplied or specified but how and where is it specified, not necessarily with the work. This information should be required by the license to be in the meta-data attached to the file or specifically stated visually-alongside the cc license marking.

what the???

[Anonymous Coward]

Now I'm in no way an expert on the Creative Commons licensing scheme (I only know the absolutly basics, such as what to abdide by),or the court systems for that matter, but something isn't right here.

Excerpt:

      1. A pro photographer places a copyrighted photo on a website for sale (his own, or a stock photo agency's).
      2. A random 12-yr-old internet surfer finds the photo and places it on his Flickr photo stream, removes the copyright text, and
            gives it a Creative Commons attribution.
      3. A photo researcher at Big Company Inc. sees the photo and the Creative Commons license, and uses it in an ad.
      4. The original photographer sees the ad, files an infringement claim.
      5. Even though Big Company Inc believed it was acting in compliance with the license, the law doesn't allow for this defense.
            It is still culpable, and is subject to fines ranging from $750 to $30,000.
      6. The 12-yr-old is technically liable for Big Company Inc's misfortune, but let's face it--no one's going to go after him.
      7. Big Company Inc's lawyers now institute a policy of never trusting a photo having a Creative Commons license.

Call me crazy, but the Creative Commons is flexible enough to have slight revisions from time to time, correct? so why not just add a an agreement clause for the licensors stating that they are the original creators, or acting on behalf of the creators, and provide a certain amount of information, such as the date the work was created? In scenarios like the one posted above, the "big company" could provide the same amount of information, sign a similar agreement, and both versions could be addressed in the courts at the same time, for the judge/jury to make up their minds? If either party lies, the agreement could be reviewed, and whoever is the violator can be sued/fined.

there we go. case closed, everyone's happy (except the violators).

more info on fair use...

[argv01]

Whether or not you like it (most photographers don't), there's probably no more blatant case showing the power of the Fair Use provision of copyright law.

http://www.nytimes.com/slideshow/2007/12/05/arts/20071206_RICHARDPRINCE_SLIDESHOW_index.html
http://www.nytimes.com/2007/12/06/arts/design/06prin.html

Re:sig

[CamoCoatJoe]

"Even if the concentration of 'greenhouse gases' double, man would not perceive the temperature impact." First, you can find somebody who says anything, so who said that and why should I believe them?

Second, what, exactly do you/they mean by "perceive?" If you mean "The air outside won't be noticeably warmer," so what? Getting cooked isn't what people are worried about (except real nutcases).
It's been claimed that an increase in ocean temperature by three degrees would cause storms to become significantly worse. (I'm not saying proven, just claimed.) Would I notice that (on average) the air is three degrees warmer than it was over a decade ago? Nope. Would I care if my house got destroyed in one of the category-5 hurricanes that some people say will start coming every year? You bet.

I'm not saying that I know that global warming is caused or increased by humans ('cause I don't), but if you're going to say that it isn't, then tell me how you know, or I'm not going to give your claim any heed at all.
(It's kinda funny if you expect that anyone's opinions or actions will be changed just because you have an unsourced quote in your sig, when you're making a post criticizing someone for expecting people on /. to know anything about anything other than computers.)

(Man, that was a waste of time...)