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]

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

Reliance

[Russ Nelson]

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.

The catch with CC

[sterno]

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.

Good question

[Spazmania]

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:I Must Be Confused ... No Backsies!

[Raindance]

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 thoughts aired by a place as big as slashdot. But I think this sort of criticism- deserved and undeserved- will allow Creative Commons to do a better job. I know Lessig has said that CC is trying to make things more clear re: model releases, and also to more tightly integrate content and license.

Re:No Termination

[DragonWriter]

Nobody in their right mind would trust a license that can be terminated arbitrarily. One day you could be legal, and the next not, without your doing anything wrong. That's why none of the Open Source licenses are allowed to do that.

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 recover for copyright violation from a former licensee who detrimentally relied on the promise not to revoke are limited by the doctrine of estoppel.

If you want a license that really can't be revoked, you ought to get a license contract rather than relying on a gratuitous license.

Re:The catch with CC

[bhsx]

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-derivative on my "free" website promoting my specific distro of Linux, which I give away for free? What if I gave it away for free but called it Verizon Linux and just used it as promotion for my cellular network?
Tired old argument my fat arse.

Re:No Termination

[mister_tim]

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 that they support that product. If done without their consent, you are 'passing off' their support. In a model release, you would typically ask a model to agree that their photo might be used in commercial purposes.

Separately, you can generally take someone's photo and sell it or publish it without their permission (think of how many millions of photos of politicians, celebrities, criminals, etc are published in newspapers and magazines every day). You don't need to get a model release for every one of those people. There are some limitations to do with people's privacy, but that's the general rule.

* Though presumably there is a general need for a model to receive consideration for their model release to have force as a contract

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

[pbhj]

>>> 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.

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 license help info, say you should provide an attribution in the form requested. Thing is sticking a cc-by-sa logo next to something is as much as anyone does. Nobody ever mentions how they want their "by" to be recorded. So, usually you have to contact the producer anyway, and no they don't often respond to random emails from unknown individuals. Those that do respond often ask how I'm going to use the image first, which seems counter to the license already granted. Ho-hum.