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Creative Commons License Flaws Claimed
Posted by
kdawson
on Tue Jan 08, 2008 01:04 PM
from the gaming-the-commons dept.
from the gaming-the-commons dept.
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."
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Clarification please.. (Score:4, Interesting)
Re: (Score:2)
Don't you have to first present the person that is infringing on your IP notice to stop before you can sue?
WANLBWPLOTV (Score:5, Insightful)
??!!!??!!
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?
Parent
Re: (Score:3, Insightful)
Re: (Score:3, Insightful)
First rule of civil suit, who has the most money and the best lawyers wins. Once you have put something on creative commons you can't take it back, you have initiated what is in effect an open contract and would have to get every one on the planet to agree with the alteration of contract, however that certainly doesn't stop you from getting some greedy ass hat lawyer to take the case and bleed you dry trying to win
Re: (Score:3, Funny)
Re:WANLBWPLOTV (Score:5, Funny)
Parent
Re: (Score:3, Informative)
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!"
How often does that happen? (Score:5, Insightful)
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
The catch with CC (Score:5, Interesting)
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.
Parent
Re: (Score:3, Insightful)
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.
So what happens when Google Images shows your Flickr pics as search results with ads on the page? That's commercial use isn't it? I didn't read this article, but I read (what I think is) the first part that brought this up. What defines commercial use? What if Johnson & Johnson put your picture on a free brochure about baby shampoo? What if the same company used it for a free AIDS test brochure? What if a non-profit used it for the same brochure? What's commercial use?
Re: (Score:3, Interesting)
So what happens when Google Images shows your Flickr pics as search results with ads on the page? That's commercial use isn't it? Lordy, but that's a tired old argument. You don't work for the print media by any chance?
Look at my account and ask that again, fool. "Tired old argument?" CC's only been around a couple years there buddy. So I suppose you have an answer for me? What exactly does constitute commercial use? Can you answer if any of my examples constitute commercial use? Do ALL of them? What did you bring to the argument besides an attempt at belittling me?
So back to my original question... How do you determine what is commercial use? What if I use a picture you put under CC non-commercial, non-derivat
Re: (Score:3, Informative)
This isn't a problem with the CC at all, or even with the photographer. The photographer in the case you mention [slashdot.org] had
Re:It Only Has To Happen Once To Be Scary (Score:5, Informative)
Parent
Re: (Score:3, Informative)
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 lette
Re: (Score:3, Informative)
CC isn't a copyright - it's a distribution license.
I Must Be Confused ... No Backsies! (Score:5, Informative)
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
Well, from the faq [creativecommons.org]:
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.
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.
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Re:I Must Be Confused ... No Backsies! (Score:5, Insightful)
Parent
No Termination (Score:2)
So, I am very dubious that CC licenses can terminate.
Bruce
Re: (Score:3, Insightful)
The other problem is the issue of model release, and I agree that a lot of people who CC license their work don't know about that.
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Re:No Termination (Score:4, Informative)
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
Parent
Re: (Score:3, Interesting)
Actually, there is no automatic assumption that a model needs to be paid if their image will be used commercially*. The purpose of a model release is not about the model's right to compensation, but about ensuring that they don't dispute the purpose of the photo, i.e. that they consent that their photo be used in a commercial application. There's also the trade practices laws concept of 'passing off' [wikipedia.org] - basically, if you use a particular person's photo in an advertisement for a product, it is implied in law
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Re: (Score:3, Interesting)
A lincensor who grants a gratuitous licens (not just the CC, but the GPL and other OSS licenses) can do that (at least in US law) whether or not the license terms say they won't or can't. At most, such a representation may have a bearing on whether the ability of the licensor to
Re:I Must Be Confused ... No Backsies! (Score:5, Informative)
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]
Parent
Re: (Score:3, Interesting)
The problem being, it just wouldn't work. There are enough logs of what goes on on the internet that anyone trying this would get tripped up (the existence of archive.org alone would be a death-knell for this strategy... same with the Google cache).
I think this fellow has some valid thoughts, particularly about model releases, and then he has some confused thoughts. It's kind of a shame to have these confused thou
Re: (Score:3, Insightful)
How is that not a risk with non-CC licensed photos? I mean, that seems to be a general risk. Period.
At best, CC images, should be available in packages with copies of the model releases included. This is how the major stockphotog sites handle it. You must upload an image including the releases.
But even then, you've got
Re: (Score:3, Interesting)
Wouldn't an email from the supplier of the CC-ed material be sufficient to shift the burden of proof?
If they said you forged the email then without proof you could countersue for slander too.
I often consider cc-by-sa images, there are lots on flickr. Flickr, and the licen
Re: (Score:2)
Relicensing is the issue (Score:2)
Re:Relicensing is the issue (Score:4, Insightful)
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.
Parent
Re: (Score:2)
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B releases A under CC to X,Y,Z
A sues X,Y,Z, but really B is to blame.
No, the real problem is that when A releases an image under CC, and neglects to register the work with the copright office (as the overwhelming, vast majority of people do), he has no recourse at all, in any meaningful form, against the mis-users of the image, no matter who he pursues (B, X, Y, or Z). In practical terms, A's use of the CC is a statement that there will be no monetary licensing costs. That establishes
Re: (Score:2)
There will be no monetary costs for using the work under the terms of the license. But, if you fall outside the license, things become murkier. After all, if you say "no commercial use," for example, it's because you want them to come back to you and pay for that commercial use. Same thing for the attribution clause.
Clearly opaque (Score:2)
The only thing I see the slashdot community making clear is the maximum opacity of the muck it will be necessary to wade through before we are able to define the issues.
ummmm (Score:5, Insightful)
I LOL'd.
Re: (Score:2)
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Provided all you want to know is what would happen in soviet Russia, whether or not you could Beowulf a CC license, and to what extend the poster is an insensitive clod..
Reliance (Score:4, Interesting)
And another flaw - Model Releases (Score:5, Informative)
http://yro.slashdot.org/article.pl?sid=07/09/22/0319252 [slashdot.org]
Why should I worry about Dan Heller's opinions? (Score:5, Insightful)
Re: (Score:2)
Are you a lawyer? Then why should we care about your opinion about whether or not someone else has presented legally useful information?
Regardless... Heller's perspective is that of an artist and technician that produces work for a living. You have no obli
intellectual property my ass! (Score:4, Insightful)
And that applies to anything that can be put in digital form: text, software, images, sound, video, and photography.
If you don't want your precious piece of information to be used by others, then just don't put it available to the public. Period.
The very term "intellectual property" doesn't make sense.
not exclusive to CC (Score:3, Insightful)
On a more serious note.. (Score:3, Insightful)
Yeah, and people in hell want iced water.
Seriously? This is not the place to look for anything substantial. Most Slashdotters are not lawyers (myself included). Few know the actual law and even less are able to separate the standing law from their Utopian ideals. Slashdot makes Wikipedia look like an absolute braintrust in comparison.
And that's not to say that people shouldn't express themselves. Not at all. What it is to say is that if you're looking for the solid leggings of today's law this simply isn't the right place to look. Tons of posters have all kinds of good ideas and good intentions but that's not going to get you anywhere if you find yourself standing in front of a judge. There is a lot of talk on Slashdot about change in the laws involving IP but so far I haven't seen anything aside from talk. From time to time I like to call one of the more vocal anti-IP talkers out and tell them why don't they openly break the law and let me know how their reasoning works out in court. I have yet to find anyone who takes up this challenge. Regardless of where we stand on IP law, we all know the basic truth behind it and all the intellectual masturbation that goes on around here doesn't amount to a hill of beans in the face of the reality of the situation.
And to be very honest, most of the ideals that people spread around involving the lessening or even revoking of IP laws simply can't stand up in our society. We have far too much riding on this structure and drastic changes to that structure are going to cause wide spread hardship. I don't think that today's society is built out of the kind of people who are willing to bear hardship for any real length of time to right the wrongs of yesteryear.
It's going to be both a sad and comic day if most of the changes that people suggest and support around here ever come into being. If we want serious change that isn't going to leave itself open to short term corruption we're all going to have to take a loss. Most people here don't care about loss until it's their loss that we're talking about. The revolution will not be on Slashdot.
Overblown (Score:2)
(1) the fact that something claims to be licensed under creative commons doesn't mean that it actually is. I can't slap a CC license on your picture and re-use it.
(2) some states have a "right to publicity," which means that if you're going to make a commercial use of my picture, you have to get a release from me. CC licenses do not come with such releases.
His third article is partly exercise in fiction -- he takes the view that a CC license is personal to
Good question (Score:3, Interesting)
What do we do about a society that is already predisposed to ignoring copyright in the first place?
The answer is simply this: where the law fails to reflect the will of the people it is the law, not the people, which is in error.
Wrong on all counts, troll (Score:2, Informative)
...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 advoca