Let’s all sue Creative Commons: a defense, and suggestions for publicity et al.

Posted on 22 September 2007
Filed under Copyright, Creative Commons, Licenses, Open content

I get a bit defensive when I see my friends getting sued – perhaps a little bit due to my loathing for the seemingly inevitable day when I, too, get sued. So I was irked when I heard this week that Creative Commons had been dragged into a lawsuit by a photographer and his subject against Virgin Mobile.

The photographer had snapped a photo of the subject and uploaded it to Flickr under a Creative Commons Attribution license, which allows commercial use, modification, and redistribution. Virgin’s advertising department or hired firm found the photo on Flickr and exercised those rights, adding a snarky caption to the photograph, then plastering it on bus shelters and billboards to advertise a new service.

When I first heard the story, I figured it was the fault of some moron (or over-reaching) lawyer who didn’t understand Creative Commons, and thought CC played some active role in the licensing process. Accordingly, I assumed the claim against CC would be dropped quickly. But having read Larry’s take on the complaint, I see the gripe, and it’s a bit more substantive. The photographer argued that that CC failed “to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.”

It’s an interesting claim, which echoes an argument sometimes levied against free software licenses: If you make the license easy to use, then people will use it without understanding what it means. At worst, that will invalidate the license, with nasty effects for downstream users; at best, it’s likely to create bad blood between the license user and its creator.

Without necessarily accepting the claim that their licenses might be invalid, the free software and open content communities have attempted in various ways to hedge their bets against the claim:

If I were Virgin, I certainly would have preferred to use CC-licensed photos from Registered Commons, or tried to obtain some kind of affirmative response from the author. Although Virgin has the legal right (under copyright) to use any appropriately-licensed work, they don’t have much defense if something falls through (as happened here).

Virgin might have contacted the authors of the works they wanted to use and asked, “We’d like to use your photograph. You’ve already granted us the right to do so, and we don’t have to pay you. But we’d like to send you a small payment as a token of gratitude; will you fill out this form that tells us who you are, and confirms that the work is yours and we can use it?” Certainly, some authors wouldn’t have replied, or would have declined; Virgin can calculate its risk to use those works. But for authors who did reply – and really, filling out a form is a small price to pay for $100 – Virgin would gain a bit of certainty about the work they were using. The relationship now looks more like a contract with a professional photographer, who warrants that he has the appropriate releases etc., than like Virgin poaching personal photos from the Web and pasting them on billboards.

If this regime is starting to sound like it violates the spirit of the CC licenses, it shouldn’t. Frankly, actors with more to lose – like corporations with deep pockets – have always taken extra steps to protect themselves against potential liability. In 2005, documentary filmmakers released a statement of best practices for fair use. One might ask why this was necessary – isn’t the case law relatively clear what constitutes fair use? – but skittish studios would pull up short of their legal rights, afraid of having to face an infringement suit. The best practices document acts as a form of collective security for that community.

Perhaps, on principle, one should insist on exercising one’s rights to the legal maximum at all times. But where there’s even a bit of legal uncertainty, it should be no surprise that some will decide “better safe than sorry”. I don’t fault Virgin for not doing so here (at least with regards to the validity of the copyright license), but this episode demonstrates the potential blowback if one doesn’t.

To mention another example, there’s been some discussion that minors under age 18 are not legally able to license their work (at least in some jurisdictions). What if one of the Virgin photos was snapped by a 16-year-old – with litigious parents? In this case, regardless of whether the licensor understood the license, it would be invalid. Not a situation the downstream user wants to be in!

So assuming the license is valid, does CC “adequately educate and warn … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use”? This issue is slippery, because it seems any argument that “it’s right there in the license terms” is similarly an argument in favor of shrink-wrap and click-through licenses. But in a word: Yes. There is certainly some debate over what exactly is a commercial use under the CC licenses, but Virgin’s use is undebatably commercial. I can’t fathom how anyone, when presented with a choice to “allow commercial uses”, wouldn’t consider commercial advertising to be a use they were allowing under the license.

What about the right of privacy, which the photograph’s subject claims was violated? The CC licenses make no claim regarding that right, or any outside of copyright (unless moral rights and the DMCA’s access rights are considered outside of copyright). Neither Virgin nor the photographer should have expected the license to grant or waive those rights.

But enough of the defense. Is there anything CC could do better, to ward off these problems in the future? Here are a few suggestions:

Finally, two discussion questions about the suit:

Although I don’t think CC is at fault here, it is important to act. For the ecology of CC-licensed works which permit commercial use, that use is important. It’s important to have clarity, good information, and certainty when using licensed works. Without improvements here, CC licenses may be a valuable tool in the sharing economy, but they’ll be unable to realize their full value for the commercial economy.

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