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.

Comments

Send them a bill

[Anonymous Coward]

Invoice them. If they don't pay, sue them.

Re:Send them a bill

[Fwipp]

They would sue you in a heartbeat if they thought they could make a dollar from it. Don't let them get away with hypocrisy.

Re:Send them a bill

[tonywong]

Agreed. If they don't pay the bill make sure that you sue them in small claims court. Depending on jurisdiction it should be under 25k, but it also is loaded towards the small guy (you).

Re:Send them a bill

[TheRaven64]

There is a CC-NC license variant that provides a fixed rate for commercial users (i.e. free for non-commercial use, $n for commercial use). In this case, you can send them an invoice for the commercial fee then take them to the small claims court. It's not a copyright issue in the small claims court, it's a non-payment of an invoice, which is exactly the sort of thing that this court is for.

Re:Send them a bill

[Anonymous Coward]

[citation to the contrary needed]

is this a bad joke or are you extremely poor at reading comprehension?

OP: This weird thing exists
Re: Where?
You: PROVE IT DOESN'T EXIST FIRST!

DMCA?

[fuzzyfuzzyfungus]

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...

Re:DMCA?

[fuzzyfuzzyfungus]

He said that he hates to do it. I said that it would likely work. There is no implied contradiction here.

Receiving the news that what you hate to do is what the situation likely requires is not fun; but it can be informative...

Re:DMCA?

[dave420]

Because the people we hear about who get sued for copying music are not doing it for money, whereas the people in the article are large companies trying to actively profit off the images in question. I doubt you'll find many people who are arguing that copyright violation for commercial gain is OK, which is the direct analogy to the situation outlined in this article.

Re:DMCA?

[genfail]

I am curious: If this is wrong, why is copying music (which is under a much more restrictive license than Creative Commons) not? Is it a "because I didn't make money off of it" thing?

Genuine question here, not trying to troll or flamebait.

Most people on /. probably would not say that full blown piracy is OK. Most of the issues with copyright law brought up here are with specific abuses of copyright, restrictive DRM, attacks on fair use, even using DMCA to attack free speech, etc. Even the hypocrisy of the music labels claiming that they are just trying to protect the rights of artists that they themselves are not paying is fair game.

There is a big difference between wanting to crack DRM for music you legally purchased so it can be played by another device or making another Downfall parody and pirating music for the explicit purpose of making bootleg CD's that you sell for profit.

What they are doing in this case is piracy for the explicit purpose of making profit.

Why ask?

[bunratty]

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!

Re:Why ask?

[mwvdlee]

Information doesn't want to be free.
Some people want other people's information to be free, but that's about as far as it goes.

Re:Why ask?

[Angst Badger]

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.

Re:Why ask?

[keithpreston]

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.

Re:Why ask?

[rk]

You *do* realize that there is more than one person posting on Slashdot, right? And just because a lot of people are anti-copyright doesn't mean they all are, right?

You could...

[castironpigeon]

...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.

DIY

[paiute]

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.

Re:Reprint It

[kevinNCSU]

The "vendor" (it's a blog) isn't telling people to stay away from it, it's literally linked back to that dude's photostream and describes the license which means the vendor thinks they're following the license and doesn't think their blog is commercial use despite the ads. And he probably hasn't gotten a response back from the guy because he emailed him about a blog post that is titled Gone Fishin because the dude literally fucking left to go camping in the woods and included a photo of a hammock. Give me a break.

Re:If you're not going to defend a license...

[EvanED]

IANAL, but isn't that how stuff like trademarks work?

Trademarks work that way, but copyright doesn't.

Send them an invoice...

[(H)elix1]

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.

Re:Reprint It

[harrkev]

I am not sure that I understand. Boingboing used his image in a blog post. He is upset because there is an advertisement next to it? Or his he just mad because Boingboing is using the image in the first place?

To me, if a corporation wants to use the image IN an advertisement, then it is time to get upset. Until then, no big deal. If I had some CC-licensed images, I would feel honored if Boingboing used one. Then again, I am a little bit of a Boingboing fan.

Re:If you're not going to defend a license...

[AdmiralXyz]

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.

CC Non-commercial license

[Late Adopter]

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.

Re:If you really care, sue

[kubitus]

In Germany the authors of artistic images created an organisation defending their rights.

They bill the companies - and if they do not part with their brass, sue.

http://www.bildkunst.de/

maybe there is a similar org where you live?

Re:Reprint It

[dyingtolive]

Wow, okay, I'm an idiot. Ever do that thing where you genuinely forget you're running adblock?

MAY be violating

[PatHMV]

BoingBoing MAY be violating the terms of the license. But they may not be. The actual legal language of this particular clause of the Creative Commons license is fairly ambiguous, to my reading.

Here's the relevant definition (from CC ver. 3):

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 con-nection with the exchange of copyrighted works.

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.

Re:MAY be violating

[PatHMV]

See this discussion about the varied understandings of the term "non-commercial" as used by Creative Commons:

While it would take a more focused and exhaustive study to conclude that these seemingly fortunate attitudinal differences are correct, strong, and global, they do hint at rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses — licensors should expect some uses of their works that would not meet the most stringently conservative definition of noncommercial, and licensees who are uncertain of whether their use is noncommercial should find a work to use that does unambiguously allow commercial use

From Boing Boing

[beschizza]

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.

BB removed it

[capedgirardeau]

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"

Re:BB removed it

[ArbitraryDescriptor]

There is further clarification in the comments. Xeni Jardin replied:

We've reached out to the photographer, who appears to be a friend of Cory, and mentions Cory. It appears that the Slashdot post was from an anonymous Slashdot reader who was trolling for attention, not from the photographer, as Rob stated earlier. Not from a rightsholder, but from someone trying to punk Slashdot and prank Cory while Cory was away (he says so pretty clearly in this blog post).

I think that may warrant a little clarification in the summary.

Re:Reprint It

[wygit]

and somebody on BoingBoing was monitoring or got alerted to the problem. The photo has been removed with an apology.

"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. Please accept our apologies. - Rob"

Creation is rights ownership.

[fyngyrz]

Because the people we hear about who get sued for copying music are not doing it for money, whereas the people in the article are large companies trying to actively profit off the images in question

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.

it's my photo on boingboing + cory had permission

[jtrant]

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

Why let facts get in the way of a good smearjob?

[mouthbeef]

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?