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

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

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!

[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.

ummmm

[demonbug]

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

I LOL'd.

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.

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

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?

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

[WED Fan]

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

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.

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.