What To Do About CC License Violations? 437
Posted
by
timothy
from the put-your-feet-in-these-stirrups dept.
from the put-your-feet-in-these-stirrups dept.
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.
Re:DMCA? (Score:5, Informative)
Receiving the news that what you hate to do is what the situation likely requires is not fun; but it can be informative...
You could... (Score:5, Informative)
as a photographer that's been screwed over (Score:1, Informative)
I'd say you are fool for releasing anything on creative commons.
suck it up, don't do it again, and place a watermark in the middle of your shots.
Re:DMCA? (Score:4, Informative)
"Wow did you even read the summary?"
In other words, the original poster wants to do something about a problem he is not willing to do something relatively easy about, unfortunately.
Re:DMCA? (Score:2, Informative)
Yeah, start filing takedown notices.
It's a frickin' license. It's a legal agreement they're violating.
Offer settlements, if they decline, file DMCA takedown notices and start a blog shaming them. (With appropriate screenshots.)
If that still doesn't help, get a lawyer.
Always remember: If they have no reason to pay you, they're not gonna pay you. It's as simple as that. You invested work into those pictures and you're entitled to payment if they're being used commercially. Since they don't play fair, you'll have to force them to play fair.
If all else fails, just harass the shit out of them. Constant calls, blackfaxing, etc. As soon as they figure out not paying you would cost them more than paying you, they'll be much more cooperative.
(Remember to send them bills for the time you wasted getting them to comply with the license.)
DIY (Score:5, Informative)
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:Send them an invoice... (Score:2, Informative)
Re:Why ask? (Score:4, Informative)
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.
I found the original quote in its entirety to be a lot better at describing our trade off [wikipedia.org]:
On the one hand information wants to be expensive, because it's so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other.
It became some sort of rallying cry for some folks about some ideals. But if you really think about it, personifying information is quite idiotic. Information doesn't want to be free. It can't want anything. If there were no humans around information wouldn't do a whole lot. Certain kinds of information like DNA seem to have some unknown motive and mechanization to persist and mutate but the way we view information (as a product of other humans) is something that we want to be free and that we don't want to have to pay for. And really, the producers of the information want it to be expensive. They want their reward back for their work. And the consumers are still wanting it to be free. So the speech did an interesting job of boiling it down into one thing -- one thing that has both these very strong forces pulling on it. But then you have the legal system of most nations pulling it to be more expensive and litigious while at the same time technology pulls it paradoxically the other way. It's a capital tug of war game with the rope of information and when you say "information wants to be free" you're only talking about one side of the rope.
Re:If you really care, sue (Score:5, Informative)
They bill the companies - and if they do not part with their brass, sue.
http://www.bildkunst.de/ [bildkunst.de]
maybe there is a similar org where you live?
Re:Send them a bill (Score:5, Informative)
What have you done? (Score:2, Informative)
Re:If you're not going to defend a license... (Score:3, Informative)
Sort of, but not really. People usually are overly protective of marks.
Basically, a mark remains valid so long as goods or services bearing the mark, associated with the mark, etc. are all considered, by the relevant segment of the market, to originate from a common source, though it isn't necessary to know what source, in particular.
So imagine you see a can of soda with the word COCA-COLA on it. You can expect that it ultimately originates from the same place as other, similarly marked cans, and that the quality of the soda inside will be consistent amongst all of them. OTOH, a can that merely says SODA, could come from anywhere, and could contain a drink that's quite different from other things so marked.
If some third party soda bottler started to label their cans as COCA-COLA, but they were unrelated to the Coca-Cola company, and the contents were not like Coca-Cola, this would confuse customers. Trademark laws are meant, in no small part, as consumer protection, so that people can rely on labels to be truthful, and can rely on consistent levels of quality (not the same as good quality, just consistent). If Coca-Cola didn't do anything about this, the confusion could ultimately result in people no longer expecting COCA-COLA marked cans to have a common origin or consistent quality, and the trademark would be lost.
However, not every use of a competitor's trademark will confuse customers and lead to the mark being put in jeopardy. For example, if a can of a competitor's soda said something like 'Contains 10 grams more sugar than a can of Coca-Cola,' and this was a true statement, this would likely not jeopardize the COCA-COLA mark, and it would be pointless and stupid for the Coca-Cola company to sue over it.
Re:Reprint It (Score:3, Informative)
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.
This is rich! Cory actually owns the hammock!
check this out.
http://www.flickr.com/photos/jtrant/sets/72157622221823079/ [flickr.com]
WTF?
Complain to Slashdot (Score:2, Informative)
Re:Send them a bill (Score:5, Informative)
Re:DIY (Score:3, Informative)
Well, you can't do that for copyright infringement (only federal courts can hear copyright cases). It would have to be framed as a breach of contract case to get into state court (and state courts won't always buy into that), and in this case it doesn't really strike me as the best way to go. The damages issue stands out in particular.
From Boing Boing (Score:5, Informative)
BB removed it (Score:5, Informative)
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: What can I do? (Score:3, Informative)
Did he register the copyright in a timely fashion? If not, he can't get statutory damages.
Re:Why ask? (Score:3, Informative)
Where did you get that idea?
I release source under the GPL very intentionally for instance. That makes it undesirable to many companies. I'm happy enough to negotiate a different license, in exchange for money of course.
I have also earned money writing GPL licensed code, by getting hired to improve an existing project.
Same goes for CC-NC licenses. If I release something under those terms it's my intention to let the random Joe with a blog use the content for free, but if a magazine wants it, they have to pay.
Re:RIAA (Score:1, Informative)
No, it's not. They don't invoice regular license fees. When someone uses your pictures commercially and lacks a proper license, you bill them for a normal commercial license. No gazillion dollars per instance, just normal "you need a license to do that, I'll assume your order got lost in the mail" pricing. In a sense it's the best case: You don't have to haggle, you don't have to market. All remaining work is in accounts receivable.
Re:MAY be violating (Score:5, Informative)
Re:put logos on everything (Score:3, Informative)
ImageMagick is your friend. Feel free to google "imagemagick watermark".
Re:Reprint It (Score:5, Informative)
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"
Re:RIAA (Score:3, Informative)
Except that they go after grandmothers whose grandkids wanted music for their MP3 players, whereas he’s just trying to keep people from profiting off what was supposed to be free (and free under the explicit condition that you weren’t allowed to profit from it).
Re:If you really care, sue (Score:3, Informative)
I mean its like that with trademarks is it not? If you aren't actively defending it, you can lose it?
It is like that with trademarks, it is not like that with copyright.
Software companies even deliberately ignore pirating in order to increase their installed base, and crack down later.
Re:Send them a bill (Score:3, Informative)
If you want to enforce legal rights, then sue.
Boing Boing have already removed the image an added an apology to the post.
In the case of other websites, send a DMCA complaint to search engines. They must then either remove the image, or send a counter-notice, or have the search engine stop returning links to the page in searches.
Big media are not going to risk lying in the counter-notification, so they will probably remove the image.
Your only other alternative is to take your photos off anywhere they can be easily copied (i.e. off the net).
Re:Send them a bill (Score:3, Informative)
Doesn't matter; copyright infringement is almost always a strict liability offense. Even if they took all reasonable steps to avoid infringing, and any infringement was entirely accidental and unintentional, they're still on the hook for it.
Creation is rights ownership. (Score:5, Informative)
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.
Re: What can I do? (Score:3, Informative)
Well, actually from the moment the image is fixed in a tangible medium of expression, but close enough.
Nevertheless, in order to encourage people to register, you often cannot even get into court to sue until you've registered, and certain desirable remedies, such as legal fees and statutory damages, are not available unless the work was registered in a timely fashion.
That having been said, we should really revitalize our system of formalities. Automatically granting full-fledged copyrights is the single worst thing about current US copyright law. Worse than excessively long copyright terms, in fact.
Re:Send them a bill (Score:3, Informative)
what did legal say?
Legal doesn't HAVE an opinion because they weren't contacted and if this is forwarded, they'll say "don't to anything (including respond most likely) until we get a cease-and-desist or similar". It's the unfortunate mentality of these organizations. That being said, I believe that if they are using your images as you describe for any kind of advertising it would be worth your time to go after them. ALTHOUGH: I do NOT know what kind of damages (if any) you should receive since they were released under the CC
One option might be to contact EFF. Either they, or possibly lawyers or law professors (with students who need experience!) might be interested in helping you out. Good luck!
Re:Send them a bill (Score:3, Informative)
Well, this [uh.edu] is my absolute favorite case on this subject. Scroll down to the section titled "Do those who browse the websites infringe plaintiff's copyright?" and remember to read footnote 5, which is part of that section.
Re:BB removed it (Score:5, Informative)
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:From Boing Boing (Score:2, Informative)
I had to reread the gloss a few times. On closer examination, the poster is not actually claiming to be the rightsholder of the images used on BoingBoing or Wired, but makes a logical leap in assuming that both are used without permission, and then inserts these assertions as concrete examples. Pretty sneaky, sis.
Bottom line, I think it's pretty safe to assume that the anonymous poster isn't giving any personal examples because -- if they exist -- they just wouldn't hold up to scrutiny.
Re:Send them a bill (Score:3, Informative)
"It's the only option really."
Well, there are two options in fact (plus a default one).
1) Sue. Have you the time, money and will to go that path?
2) Bad PR. Have you the time, money and will to go that path?
3) Do nothing.
In the end it's always the same: the strongest win (for a variable definition of "stronger": bigger purse, better contacts, strongest will...).
You already had to know about that: if you cross a border with an army, you'd better have a stronger army than the other country's since armies are what is the measure of power regarding country borders. If you back your work with a license or contract, you'd better have the legal means to hold your position since legaleese is the measure of power in this case.
Just as you wouldn't declare war against USA by yourself with a slingshot even if there's a legal way to properly do that (unless you are Peter Sellers in "The Mouse That Roared", of course) you shouldn't use a license you can't back with legal means just because the license is there (unless you want to look like starring a Peter Sellers' comedy, of course).
Next time you'd better refrain from publishing by yourself, publish under some kind of BSD-like license so it doesn't matter if others "abuse" your work or pass the copyrights to someone that can make something about it (ala FSF).
it's my photo on boingboing + cory had permission (Score:5, Informative)
Re:it's my photo on boingboing + cory had permissi (Score:3, Informative)
Ah. now I understand. You simply wanted to use Slashdot to promote your services for free.
In the post you replied to, jtrant wrote: "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." The AC who submitted this story had nothing to do with the picture used at BoingBoing.
Why let facts get in the way of a good smearjob? (Score:5, Informative)
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?