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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.
Invoice them. If they don't pay, sue them.
This sounds like one of those situations where a DMCA takedown would work...
Wired, having y'know, actual printed copies and stuff, could probably be intimidated into an actual settlement more easily...
Why ask about it on Slashdot? We'll all say information wants to be free and we don't believe in imaginary property. Oh, wait, you said big corporations are ripping off your stuff? OFF WITH THEIR HEADS1!!11!!1!
What a fool believes, he sees, no wise man has the power to reason away.
If you don't sue, who will? Perhaps the EFF can help.
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.
...check out the list of CC Friendly Lawyers at creativecommons.org. Somebody might be able to offer advice that doesn't involve suing the infringing parties.
mmmm...forbidden donut
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.
File against them in small claims court for the maximum allowed. They will probably not bother to show, so you will win. With a judgement, you have legal permission to do all kinds of creative nastiness to them. Garnishing wages, filing liens against their property, even having a sheriff by your side as you take some of their property to fulfill the judgement.
I am obviously not a lawyer, and the details will vary with jurisdiction.
If Slashdot were chemistry it would look like this:Cadaverine
IANAL, but isn't that how stuff like trademarks work?
Trademarks work that way, but copyright doesn't.
The obvious thing would be to send them an invoice for a commercial license to your asset. Odds are, accounting will be more than happy to process it. No need to sue, or threaten to... Hell, you might just snag yourself a customer, if you are not careful for other assets too.
+++ UGUCAUCGUAUUUCU
You're missing the point. It's not about "being nice"; if you were really being nice you'd just release it into the public domain. If you're not willing to enforce the terms of a license, then it's the same as not using one. You can moan, "But I'm using Creative Commons!" all you want, but unless you sue, from the corporation's perspective it's the same as if the material had been public domain, since they're not seeing any consequences. Submitter is trying to have it both ways, all of the protections of copyright/licenses with none of the effort. It doesn't work that way.
Dislike the Electoral College? Lobby your state to join the National Popular Vote Interstate Compact.
Even worse, it's always the big companies that could actually afford a to pay for whatever rights necessary that dont, in my experience. Very sloppy business practices...
Obviously. You don't get to be the biggest company around by playing fair.
Give me Classic Slashdot or give me death!
The summary states plain as day that the non-commercial CC license was used, so if the offenders weren't using his material in the furtherance of making a buck he wouldn't have a problem.
Boing Boing releases their stuff using a license that would prevent others from picking it all up on a different web site and selling ads. This doesn't give them the right to use others' work in a way that conflicts with the license (other than fair use, which might allow for a thumbnail link). I think that this license violation on their part was inadvertent, the author of the web page thought he was filing his personal "I'm on vacation" announcement and forgot about the ads. In the case of BoingBoing I would politely ask them to take it down, and to respect that "noncommercial" means "don't attach ads to this". The copyright holder can still decide to grant permission if asked politely.
Except that they skip right to the second part.
sigs... don't talk to me about sigs....
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.
On the assumption the objection may be from the photographer--we haven't heard from them directly, as far I as know, though Cory's on vacation and not available--we've removed the CC-licensed image. We support the Creative Commons and will always do our best to honor the creator's interpretation of non-commerciality. We haven't really thought through CC non-com stuff on pages with advertising at BB as a matter of policy--it's on each poster's conscience. But I know that Cory often seeks permission directly from photographers on flickr, and that other editors do likewise. Thanks, any many apologies if we have err.
boingboing has removed it and one of the editors put this note on the original article:
"Update: We've removed the CC-licensed image as it appears the photographer is unhappy with our usage of it here. We support the Creative Commons and will always do our best to honor the creator's interpretation of non-commerciality. - Rob"
Wax on, wax off baby!
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.
No. No one pays BoingBoing because this image is there. They're not offering it for sale, or charging to view it. But BoingBoing benefits because they're not out of pocket, yet they can show the image. In the end, more money in BoingBoing's pocket because their status quo as a content site is maintained, without recompensing the artist. An indirect financial benefit consequent to the artist's work.
Likewise, typically no one pays an individual for stealing music for their own use; but the individual benefits because they're not out of pocket, yet they have the product. The individual's status quo as a "hip, I heard that" and a "happy, I enjoy that" individual is maintained, without recompensing the artist. In the end, considering the music is in hand, more money in pocket: an indirect financial benefit consequent to the artist's work.
There is zero ethical difference between these two; in both cases, the artist creates, the art is used, and the artist's payment is weaseled out of. There is zero ethical difference between taking a digital product against the producer's wishes and stealing a vase out of my company showroom.
When someone creates something, it is theirs to decide what to do with it. If they want to sell it, as a consumer, you get to ethically vote with your wallet: Buy, and support them; don't buy, and don't support them. However, if you take the a product that is not offered freely without meeting their terms... that's just stealing.
It's mildly entertaining to watch the excuse train pull up and unload the same tired arguments, but in the end, it is stealing. BoingBoing is no less and no more guilty of stealing here than any cluetard who steals commercial music of software products. The degree that they are financially and reasonably liable is probably very little (same as an individual downloader) because odds are no one can show that they did any more or less business because that image was there... but ethically, they shit the bed just as badly as someone stealing jewelry.
If you want free pictures, you can start by going and visiting my flickr account. I don't use CC; I claim copyright only so I can specify that the rights are handed out, and allow unlimited use of any kind. If you want free software, go where the software is offered for free. I write free software, too (really free, not GPL [free unless you redistribute, then must do what we tell you.]) There are many more like me.
If free is your price, then that's where you should be looking: Products that are intended to be free for the uses you will make of them and explicitly say so. If you want a product that the creator deems only available for a specific exchange, either (A) make that exchange or (B) become a thief. There are no other options. You can, of course, add the "I'll make excuses" flag, but you're still firmly in column A or B.
I've fallen off your lawn, and I can't get up.
hey everyone -- it's my picture of "Cory's Hammock" that appeared on boingboing: http://www.boingboing.net/2010/07/27/gone-fission----see.html i release most of my pics and academic writing under CC-BY-NC-SA, which is the license that was reproduced on the post. but when i put these pics up on Flickr after Cory sent the hammock [yes, there is some irony there. it is his hammock!] i gave him permission to use them if he wished. and he has. and it's ok with me. as some of the comments in this thread note, the definition of "non-commercial" is the most problematic thing about CC licenses: see http://wiki.creativecommons.org/Defining_Noncommercial for background from the Creative Commons. however, in this case [and IP infringement decisions are based on specific circumstances] that definition is inconsequential, because my permission was granted. remember, CC licenses are non-exclusive, and the same content released under CC can also be licensed in other places in other ways. whoever started this thread didn't check with me [i'm not that hard to find] or with BoingBoing about the circumstances under which my image was used. my picture was 'Used with permission". i've suggested that the rights statement on BoingBoing be updated to make that clear. thanks for your help, everyone, but this damsel is not in distress! /jt
I'm the Boing Boing editor who posted the image that the OP claims violated the Creative Commons license.
Read the OP closely: he's not saying that it was *his* image I took -- rather, that he was affronted on behalf of the photographer.
Except that the photographer in this case is my friend and colleague Jennifer Trant, and I used the photo with her permission, and then reproduced the entire CC license so that other people would know what terms they could use it on.
So, anonymous poster: how about the next time you decide to smear someone for infringing Creative Commons in the name of defending someone's copyrights, you actually make sure that the creator hasn't authorized the use?