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What To Do About CC License Violations?
An anonymous reader writes "In the past, I've seen my pictures used by big commercial companies despite the Creative Commons license that clearly limits them to non-commercial use. I just let it slide because a friend who's a lawyer says that all I can do is sue. They've ignored emails and comments. Today, I saw two other examples that show this is pretty rampant. These big commercial corporations are some of the most tech savvy publications around, but they just grabbed the image. One, BoingBoing, even reprinted the 'non-commercial' clause, warning others to stay away. But they've got their ads from Cheerios, HP and Mazda running alongside. Does anyone care that we've gone to all this trouble to create new, more flexible licenses? Does it even matter when very smart people just flip the bird to the license? Is the only alternative to sue? I wouldn't mind asking for $150k and settling for $1 for each copy made, but that seems a bit crazy. I hate to type out DMCA notices but their attitude is that only uncool people complain about this and I should be happy about the publicity. Then they can be happy about not sharing their ad revenue with artists or photographers. What can I do?" Update: 08/30 18:39 GMT by T : (Very belated; mea culpa.) Cory Doctorow writes: "The anonymous submitter is not the creator of the photo. The creator of
that photo is Jennifer Trant, a friend and colleague of mine who has no
trouble with my use of her photo. I have just gotten off the phone with
her and confirmed that she did not submit the story and also that she is
happy to have this photo on Boing Boing." The photo has since been added back to BoingBoing.
Regarding the one vendor telling people to stay away from YOUR image, put up a copy on a website, and then taunt them with it. Make them sue you. Your response in Court should be most interesting. :-)
if someone wants the non-logo version, they have to contact you directly and demonstrate that they've read the license.
I wrote my first program at the age of six, and I still can't work out how this website works.
It's up for debate as to whether or not BoingBoing is receiving "monetary compensation" for "exchanging" your work. Yes, it's next to ads, which they're being paid to display. But they're not being paid to display your image. At least, not directly.
Yes, of course the EFF would help you sue Cory Doctorow, who is a former EFF staff member, recipient of EFF's 2007 Pioneer Award, and a current EFF fellow.
Here's the relevant definition (from CC ver. 3):
Is the use of the photo to illustrate a story "primarily intended for or directed toward commercial advantage"? My own blog has ads on it, but those ads have never paid me enough to even meet the expenses of hosting the blog. Would I be using the image for "commercial advantage" if I posted it on my blog?
Worse, the phrase "commercial use" has a fairly standard meaning in photography law, as the use of the image basically in an advertisement. Thus, when the National Enquirer runs a photo of some celebrity, that use is an "editorial" use rather than a "commercial" use; it illustrates the editorial story. They still have to pay the photographer ("non-commercial use" by itself is hardly enough to allow a copyright violation), but they don't have to pay the subjects of the photo anything... even though the whole point of running the photo is to sell more copies of the Enquirer, a for-profit organization. But if they wanted to use the very same photo in an ad for, say, a watch company advertising in the Enquirer, then that ad would be a "commercial use" of the photo, and they would have to have the permission of the subjects of the photo to use it for that purpose. Media companies are VERY familiar with that distinction, so if they see a "non-commercial use only" clause, then they will automatically assume that just means that you can't use it in an actual ad.
So when the CC non-commercial clause is used, does that mean "commercial" versus "editorial" as the law has defined those concepts in an important area of photography law? Or does it mean something entirely different? The definition should be MUCH more clear. As a lawyer, I wouldn't have a problem representing BoingBoing here, and I'm sure the vagueness of the clause would at the VERY least allow them to get off with only paying a nominal charge for the use of the images, and may very well result in them not having to pay a dime.
Go rant at Lawrence Lessig and the lawyers who drew up the Creative Commons license for not writing clearer license terms.
And really, the producers of the information want it to be expensive. They want their reward back for their work.
More than that, they want to be rewarded perpetually for work they did once, which is why it strikes so many people as basically unfair, or at least anomalous. If I pay you to put a new roof on my house, I pay you once for a few days' work, at until I need you to come back in fifteen or twenty years to do it again. Another roofer can do my neighbor's roof without having to pay you for having roofed my house first. And so it goes with most jobs: you get paid for the work you do. With information, you get paid for all time for having done some work at some point in the past.
Nice work if you can get it, I guess.
The system of artificial scarcity we call intellectual property rights was created because, unlike roofs, information is cheap and easy to duplicate, and without that artificial scarcity, creators of useful information would get paid so little that they'd find something less useful but more profitable to do. Unfortunately, it's been carried to such an extreme -- in large part because of the transferability of those privileges -- that entire industries now make billions of work they haven't done at all, while the actual creators, by and large, still get paid jack. What has changed with recent technological advances isn't so much the cost of duplicating data, which was already cheap as dirt, but the emergence of the possibility of eliminating the distribution cartels that screw the creators and gouge the consumers.
Aside from a few exceptional cases, that possibility remains theoretical. Instead of information wanting to be free, the dominant force at work is that people want all they can get, and those who already have a bunch are in a good position to take more, with minimal recompense, from the rest of us. Which is nothing new.
Proud member of the Weirdo-American community.
One slight mistake, Generally speaking people that are creating content believe and follow the licenses. The lechers that contribute little to nothing to society and just expect to be given everything for free that are the ones usually pirating. However you have a solid point, if you pirate material you basically have no ground to say this guy should get anything for his works.
The funny thing is, we're pretty sure that Cory has permission, but he's on vacation. After all, it is a pic of his own hammock.
I am not a lawyer, but my understanding of US copyright law differs from yours...
The bad news, about that $150,000: you're not going to get it. Statutory damages are only awardable if your work was registered with the Copyright Office prior to the infringement. Without registration, you're eligible for actual damages, basically just how much money the infringer made off of your work. Unless Wired regularly pays $1 per copy per image (they don't) then you're not going to get that much either.
The good news, about those DMCA notices: you can skip them and go straight to a lawsuit if you want. DMCA notices are for the infringer's service provider; their ISP, or their web host, or the blog they commented on, or whatever. The service provider gets a chance to pass the notice on, then cut off service for the infringed work if the notice is unchallenged, without becoming liable for infringement themselves. But Wired isn't a service provider for its own employees. If they're copying your work without permission, they're already guilty, no backsies.