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."

Clarification please..

[Improv (2467)]

Which CC license is he talking about, and which of them actually permit revocation?

WANLBWPLOTV

[WED Fan (911325)]

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 (911325)]

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

Re:

[SharpFang (651121)]

none, but with no registration process there's no proof the work was ever under CC.

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?

[autophile (640621)]

...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

The catch with CC

[sterno (16320)]

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.

Re:

[bhsx (458600)]

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:It Only Has To Happen Once To Be Scary

[snarkbot (1074793)]

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.

Re:

[uniquename72 (1169497)]

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:

[DerekLyons (302214)]

Well, with any other copyright

CC isn't a copyright - it's a distribution license.

I Must Be Confused ... No Backsies!

[eldavojohn (898314)]

Well, I'm familiar with criticism of the creative commons license [wikipedia.org] from people like Dvorak or Debian [wikipedia.org] 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 [creativecommons.org]:

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 (4849)]

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:

[Raindance (680694)]

I think you're right, that this is the problem / "get rich quick scheme" he's trying to get at.

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:

[Bruce Perens (3872)]

Actually, Heller is not saying that CC licenses can terminate. He's saying that you can't trust someone who uploaded a pictrue to flickr to be an actual copyright holder. And they can be a legal minor. I suppose we could fix this with digital signature and certification, if it was that important. Right now we just expect commercial users to employ due diligence, and they don't.

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.

Re:No Termination

[Bruce Perens (3872)]

When you take someone's picture to use commercially, they have a right to be paid. Model release is how they sign away that right. This may also apply to inanimate objects in some cases. There are many venues that post that commercial use of photographs is prohibited without permission. And you can take a photo of someone else's copyrighted work, which would make your photo an unlicensed derived work.

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

Re:I Must Be Confused ... No Backsies!

[Kjella (173770)]

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 (309515)]

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

I LOL'd.

Reliance

[Russ Nelson (33911)]

If you encourage people to use your work, and then try to pull the rug out from them by revoking their license, you can sue them for "reliance". Judges don't like that business model.

And another flaw - Model Releases

[homer_ca (144738)]

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 [slashdot.org]

Why should I worry about Dan Heller's opinions?

[jdgeorge (18767)]

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 [lessig.org], the law professor who actually founded the Creative Commons, and uses the licenses extensively?

intellectual property my ass!

[doti (966971)]

Welcome to the digital age, where information is free to be copied everywhere, without loss of the original.
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

[TheSHAD0W (258774)]

I don't understand why the Creative Commons license is being singled out as vulnerable to this sort of problem. Anyone, anywhere, could buy content from one entity who claims to have a copyright on it, then get hit with a lawsuit by another entity who disputes the copyright. Creative Commons is no more and no less subject to the problem.

On a more serious note..

[east coast (590680)]

From the blurb: I would like for the Slashdot community to clarify matters.

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.

Good question

[Spazmania (174582)]

Dan Heller poses a great question. After describing a situation where only 2 of 500 polled students thought downloading a copyrighted work was wrong, he asks:

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.

Re:Relicensing is the issue

[tjstork (137384)]

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.