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

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:

• The Free Software Foundation requires a copyright transfer for non-trivial contributions to the GNU project. This not only makes it easier to enforce the license against violations, but also adds a bit of certainty that the code is licensed validly. It’s one thing to paste some text into the header of some code; it’s another to sign a contract transferring one’s copyright, which (assumedly) contains a clause stipulating “I own the copyright or have the right to transfer and/or sublicense it.”
• The Registered Commons project aims to create a central database of CC-licensed works whose authors have vouched to the database “Yes, this is my work, and I make it available under this license.” Again, the goal is to add certainty for downstream users that the content is licensed validly.

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:

• On the “Things to Think About” page, add a point about rights other than copyright. Be clear that the right to use the copyright in certain ways does not invalidate any claims about privacy, publicity, defamation, trade secrets… there’s a lot that could be entangled here.
• In the license chooser, after an individual has selected which rights they wish to grant, the user is brought to a page that says “Here is the license you’ve chosen”. This would be a very appropriate time to reiterate the terms of the license chosen, either by displaying the human readable license inline or (preferably) by displaying a shorter summary oriented to the author. e.g. “You waive your right to prevent or control commercial uses of this work, including the right to be compensated for any commercial use.” The page could also say, “If this isn’t what you intended, go back and pick a different license, or click here to learn more about our licenses.”
• In the human-readable license summary, along with the disclaimer that the license doesn’t affect the user’s fair use or fair dealing rights, add a disclaimer that says “This license only applies to copyright in the work and not to any other rights.” This could also be a time to point toward what’s not protected by any right: e.g. “This license only applies to copyright in the work, insofar as it exists, and not to any other rights.” This might make it clearer to the user that non-copyrightable material, such as ideas, concepts, facts, and works which have passed into the public domain cannot acquire any additional restrictions under a CC license.
• Add a disclaimer in the lawyer-readable license to state, in legal terms, the above.
• Since this subject is recently in the news, post a brief summary or FAQ on the CC blog reiterating points like “What is a commercial use?” and “What other legal issues might be entangled in a copyrighted work?” This might also be a good time to address the question “How can I protect myself against getting burned by using an apparently CC-licensed work?”

Finally, two discussion questions about the suit:

• Why isn’t Flickr (Yahoo) named as a defendant? If CC “failed to adequately educate and warn”, surely Flickr’s license chooser is at least as liable. I don’t think either should be liable, but you’d think the lawyer would file against the deep pockets rather than the non-profit.
• Having established that CC is a non-profit and therefore doesn’t have a lot of money, what are the plaintiffs hoping to achieve? If it’s remuneration, they’re barking up the wrong tree at best, or viciously mean-spirited at worst. If it’s punitive, that’s rather harsh. If they just want to force CC to change its practices, why file the suit — why not just raise the issue with the community? I expect you’d get equally good results: there might be a bit less urgency, but there also wouldn’t be the animosity a lawsuit naturally stirs up.

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.