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

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!

[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]

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

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: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:The catch with CC

[Anonymous Coward]

Are you referring to the Virgin Mobile case?

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

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: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: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: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