Creative Commons License Flaws Claimed 233
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.. (Score:4, Interesting)
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Don't you have to first present the person that is infringing on your IP notice to stop before you can sue?
WANLBWPLOTV (Score:5, Insightful)
??!!!??!!
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?
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First rule of civil suit, who has the most money and the best lawyers wins. Once you have put something on creative commons you can't take it back, you have initiated what is in effect an open contract and would have to get every one on the planet to agree with the alteration of contract, however that certainly doesn't stop you from getting some greedy ass hat lawyer to take the case and bleed you dry trying to win
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Re:WANLBWPLOTV (Score:5, Funny)
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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? (Score:5, Insightful)
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 (Score:5, Interesting)
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.
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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?
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If Johnson and Johnson used it as part of a free brochure I might still be able to sue because it's clearly a promotional item for them which has some tangible monetar
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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-derivat
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This isn't a problem with the CC at all, or even with the photographer. The photographer in the case you mention [slashdot.org] had
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Isn't the photographer a publisher when he (or she) posts the photograph on flicker and makes it public? If so, wouldn't the photographer need to secure a model release prior to posting the photograph? Wouldn't the photographer
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This isn't a problem with the CC at all, or even with the photographer. The photographer in the case you mention [slashdot.org] had every right to post the photo under any license he wanted to, including a Creative Commons license without the "No Commercial Use" tag, or heck, even public domain. By releasing the photo under CC, the photographer is only addressing the copyright of the photo, not other issues such as the need for a model release [wikipedia.org]. Further, it is the publisher of an image (in this case, Virgin Mobile) who is responsible for making sure there is a model release. Again, this has nothing to do with copyright. The copyright on an image may be free and clear, even with no model relase in place. And as the sole creator of the image, the photographer is free to license the image under any license he or she wants, regardless of the existence of a model release or really any other legal complication for publishing the photo that may exist. The photographer is simply saying it's ok to use the photo commercially from a copyright point of view
Yes, it is a problem with the photographer. A license to use a work implies that the person licensing it has the authority to do so.* While it would be nice to blame the 'Big Corporation' for this, and they do bare some responsibility, it is not just their fault. The photographer, in putting the picture up for possible commercial use, implied that they were authorized to release it that way.
The best case I could see is that "Big Corp" agrees not to sue the photographer if family agrees not to sue "Big Cor
Rest of World (Score:2)
IN THE US. It is worth remembering that there are an awful lot more people not subject to the strange photo copyright rules of the US than are. I understood that CC, like the GPL, was supposed to be a worldwide license, not just a US based one.
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I still don't understand that. The same problem applies to ordinary copyright. People can claim copyright over pictures of kids when a release was not obtained from the parent.
The argument you seem to be making is that users of CC are more stupid than users of plain old copyright. That's not an argument against CC. That's
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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.
Your example has nothing to do with such a situation. I don't need to obtain a model release when I take a picture.
The example with the kid... (Score:2)
Unfortunately, someone very early in the discussion on Flick (after kid discovered her photo was used in Australia) mentioned that another model had got US$ 100.000 in compensa
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A Creative Commons license can only be applied, therefore to a copyrighted work. Further, the license does not waive the copyright or place the work into the public domain. The copyright is fully intact.
His argument that you can game the l
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His argument that you can game the license by licensing the work, then revoking the license doesn't hold either. Once the work has been licensed under Creative Commons, the license is good indefinitely so long as its terms are met. You could decide to license the work under other terms later, of course, but the Creative Commons license would persist (you can't alter the terms after the terms are agreed upon and accepted by both parties). In the case of most of the licenses, you couldn't effectively terminate the licenses either. Once you've given permission for others to distribute a work under the same license terms, you've effectively passed on the authority to license the work under those terms. Even if you don't want to distribute the work under a CC license anymore, you've already granted the right for others to do so and can't revoke that right until they violate the terms of the license.
Of course, how do you prove that the work was ever CC? Print out the web-page proving it? It can be faked.
Again, though, this isn't a problem specifically with CC licenses. It's a general problem with trying to apply contract law in this manner--where the parties never actually form an agreement and sign it.
Re:It Only Has To Happen Once To Be Scary (Score:5, Informative)
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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
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CC isn't a copyright - it's a distribution license.
I Must Be Confused ... No Backsies! (Score:5, Informative)
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
Well, from the faq [creativecommons.org]:
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.
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.
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Re:I Must Be Confused ... No Backsies! (Score:5, Insightful)
No Termination (Score:2)
So, I am very dubious that CC licenses can terminate.
Bruce
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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.
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Re:No Termination (Score:4, Informative)
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
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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
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They don't have to know about that, unless they're publishers as well. Heller himself will tell you [danheller.com] that the responsibility of obtaining a release rests with the publisher of a photograph, not with the photographer:
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The original copyright holder would have to perjure himself when asked if the material had ever been available under that license. And could have to go to jail if found out.
There are many ways to prevail in an injust civil case if you are willing to risk criminal prosecut
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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
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The Section 203 termination option is a different, copyright-specific provision that applies whether or not the license was gratuitous. My original post was about a rule which applies to gratuitous licenses in general (including gratuitous copyright licenses), not the Section 203 option.
Re:I Must Be Confused ... No Backsies! (Score:5, Informative)
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]
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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
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But then how would people find the images to rip them off?
As for CC versus the model release: the license of the photo has nothing to do with the model release. You need a model release if the picture is used commercially, regardless of the license on the photo itself.
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I think the model release problem is relevant, if only because Creative Commons was sued over it earlier this year. It was (IMO) a meritless case, which was later dropped-- not CC's fault at all, as you say-- but it was a sign that many people probably don't get the license/release distinction. It's not CC's obligation to make that clearer, but Lessig has stated they'll try harder at it.
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How is that not a risk with non-CC licensed photos? I mean, that seems to be a general risk. Period.
At best, CC images, should be available in packages with copies of the model releases included. This is how the major stockphotog sites handle it. You must upload an image including the releases.
But even then, you've got
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Okay, so two points...
If you're going to print pictures with people in them, especially on a large scale, make sure you know about model releases. Any company that hires lawyers knows about this, and I seriously doubt that they'd let anything slip through the cracks. Any company that doesn't have lawyers working for them would surely not print on such a great scale that huge amounts of damages could be claimed. In any case the legal history of cases based on granted copyright without model releases should
A technological solution: digital signatures (Score:2)
One solution is to provide a digitally signed license with (or perhaps even embedded in) the image file, so anyone who uses the image can prove the license even after all traces have been removed from the internet.
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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 licen
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"By exercising any rights to the work provided here, you accept and agree to be bound by the terms of this license. To the extent this license may be considered to be a contract, the licensor grants you the rights contained here in consideration of your acceptance of such terms and conditions."
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At least in US law, a license that is not supported by payment or other consideration (i.e., one that is not a contract) is revocable at will by the person issuing the license, whether or not the license purports to be irrevocable (you could probably make an argument that a sublicense required to be irrevocable as a condition of the original license is irrevocable by the sublicensor, but still subject to revocation by the original licensor
Relicensing is the issue (Score:2)
Re:Relicensing is the issue (Score:4, Insightful)
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.
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B releases A under CC to X,Y,Z
A sues X,Y,Z, but really B is to blame.
No, the real problem is that when A releases an image under CC, and neglects to register the work with the copright office (as the overwhelming, vast majority of people do), he has no recourse at all, in any meaningful form, against the mis-users of the image, no matter who he pursues (B, X, Y, or Z). In practical terms, A's use of the CC is a statement that there will be no monetary licensing costs. That establishes
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There will be no monetary costs for using the work under the terms of the license. But, if you fall outside the license, things become murkier. After all, if you say "no commercial use," for example, it's because you want them to come back to you and pay for that commercial use. Same thing for the attribution clause.
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But one of Heller's points is that someone can, essentially, use the image (even for profit!) outside of the bounds of that CC license (to which they didn't even agree, obviously) with essent
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Plus, if you register and they infri
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But the vast, giant majority of people who post on sites like flickr and robotically check the CC box do NOT have an established, articulated mechanism for charging for their work in a commercial setting. Lawyers can really make hay out of the fact that your first-ever suit for damages happens to be in regards to the first time you ever would have charged for such work in your life. And that's most amateurs, and tha
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Turn Heller's argument around: let's say that you're a com
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Like I said, damages are based on a reasonable market price and do not depend on either party having paid or been paid before. But, if one party has bought or sold similar pictures in the open market, those earlier transactions are excellent evide
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Much of Heller's audience are the legions of never-sold-an-image-ever amateurs with $10,000 worth of expensive DSLR, professional quality lenses and other tools who are just having fun making images. They share them on places like flickr, and don't think through this stuff at all, let alone have any economic base line established for the value of thei
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Clearly opaque (Score:2)
The only thing I see the slashdot community making clear is the maximum opacity of the muck it will be necessary to wade through before we are able to define the issues.
ummmm (Score:5, Insightful)
I LOL'd.
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Provided all you want to know is what would happen in soviet Russia, whether or not you could Beowulf a CC license, and to what extend the poster is an insensitive clod..
Reliance (Score:4, Interesting)
And another flaw - Model Releases (Score:5, Informative)
http://yro.slashdot.org/article.pl?sid=07/09/22/0319252 [slashdot.org]
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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.
Thank God at least one person didn't let this misleading bit through without criticism. Heller says that
Here's another example: Virgin Mobile used a photo from a Flickr user who used the Creative Commons license, but the company forgot to check for a model release for the person in the photo. They got whacked for a hefty settlement, even though the photo itself was not the source of the problem. True CC licensing had nothing to do with that, but businesses don't think beyond the simple direct correlation, so the bad apple spoiled the barrel.
Yes, but that's still not a problem with the CC itself.
I already discussed why I considered Virgin (or their agency) to be negligent in that case [slashdot.org] in the same thread. An advertising agency are a group of professionals whose jobs revolve around this type of thing. Even someone with a passing knowledge of the area would not assume that the CC license grants a model release. Actually, it's reasonable to a
Why should I worry about Dan Heller's opinions? (Score:5, Insightful)
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Are you a lawyer? Then why should we care about your opinion about whether or not someone else has presented legally useful information?
Regardless... Heller's perspective is that of an artist and technician that produces work for a living. You have no obli
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If I read the response right, it's not that Dan Heller has anything new to bring to the discussion, but that many folks might listen to him because he's an "artist" rather than a (by definition boring) lawyer (who also produces work for a living and uses CC licenses extensively). Since Lessig has generally covered these issues before, Dan Heller doesn't bring any new information to the table; rather, he tries to provide a wake up call to the folks who aren't interested in pa
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Sure, just like you wouldn't usually ask a lawyer to help spec out a studio lighting system. But if you follow Heller, you'll see that he usually (to boil it down) says things like this: "So, there's a list of 100 factual things you ought to know about copyright, your business plan, and liability insurance. Now, go talk to your lawyer, your accountant
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True enough. I do hope he succeeds in helping some people avoid or understand copyright-related problems. Good luck to him.
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This is the part I have trouble understanding (im certainly no expert, so maybe you can explain this to me). Lets say I take a picture and release it under a CC license that lets people use it for free for non commercial purposes Then SlimeCo come along and starts using my picture on the cover of their new product. Clearly this is a commercial use and would b
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Actually, no. His message is "don't be surprised if a lack of foresight and preparation on your part leaves you with no meaningful recourse when someone misappropriates your work."
intellectual property my ass! (Score:4, Insightful)
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.
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How asinine. I'm glad artists and writers and photographers and musicians don't actually feel this way, because it would make the U.S. a pretty damned depressing place to live. There's also the small matter of how you'd get your news stories, which are also protected by copyright.
not exclusive to CC (Score:3, Insightful)
On a more serious note.. (Score:3, Insightful)
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.
Overblown (Score:2)
(1) the fact that something claims to be licensed under creative commons doesn't mean that it actually is. I can't slap a CC license on your picture and re-use it.
(2) some states have a "right to publicity," which means that if you're going to make a commercial use of my picture, you have to get a release from me. CC licenses do not come with such releases.
His third article is partly exercise in fiction -- he takes the view that a CC license is personal to
Good question (Score:3, Interesting)
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.
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I cannot agree with that. If the law is always updated to reflect the will of the people, then all you have is mob rule. The rights of the minority must be protected, even if the minority is currently unpopular. And yes, I do believe that the right to get paid for your labor is a fundamental right.
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By that logic, murder must be acceptable because a minority (namely murderers) want their right to kill protected.
Your basic premise is correct: a majority must not be able to abuse a minority merely because they have the votes. However, the minority should rarely have the right to compel the behavior of the majority and then only with excruciatingly careful attention to fairness. Modern intellectual property law got i
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WANAL (Score:2)
Fraudulent licensing doesn't just apply to CC (Score:2)
That's a valid concern. Except it applies to all licensing, not just to CC.
Why would the kid upload it to Flickr under CC? Wouldn't it make much more sense to sell the stolen photo to a stock photo agency, claiming that he owns the copyright and that all model rel
Dan Heller is infringing the NYT copyright! (Score:2)
He is curiously unaware, or oblivious to the possibility, that the New York Times' lawyers may want to chat with him about his copy-and-paste [danheller.com] of an article from last year's NYT Valentine's day drivel [nytimes.com].
Dan, just because it's on the net doesn't mean you have the right to use it!
The Real Issue (Score:2)
I don't think the real issue here is specifically CC. I'm reminded of Ze Frank's Anti-Intellectualism [zefrank.com] song. It's a lot of song and dance pointing attention to one thing to distract you from the real issue.
The real issue is this. We, the unwashed masses, outnumber you, the professionals. For every one of you, there's a thousand of us. We have cheap digital SLR's, digital videocams, music producing software, editing suites... We can generate a hundred thousand times the volume you can, and even if 0.01% of
Wrong on all counts, troll (Score:2, Informative)
...on slashdot the game is socialism ... so we don't believe in such silly things as copyrights and patents as the community must benefeit at no charge from the works of others ... and without consequence.
Wow, how many times can you be wrong in one sentence? On Slashdot, the game is libertarianism. Do you see anyone endorsing a socialist candidate in their sig? Nope, you see Ron Paul. Second, we absolutely believe in copyright, as it is the only thing that makes the GPL work. As for patents, many of us think that reform is needed, but few would toss out the whole deal. No one hear thinks any community should benefit from the work of others unless those others want the community to benefit. No one is advoca
Socialist Libertarian? Hilarious. (Score:2)
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So, if you use a CC-licensed image, get a signed copy of the license from the supplier.
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Yeah, but the plan hinges on them not being able to *prove* they got it under CC-licensing. And just saying "Well, your honour, when I downloaded it there was a pretty copy-left sign on the page" probably won't cut it.
Are you a lawyer? If so, can you tell me the significance of placing such a pretty logo next to the image, if it can be proven that logo was there?
As far as I'm concerned, such a logo indicates (unofficially) that the image is distributed under the associated license or otherwise leads me (a reasonable layman) to believe this is the case.
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Google cache? Google will remove things from their archive and cache if asked nicely.
Archive.org? Doesn't archive everything - and robots.txt can keep them out.
Screenshot? Easily fakeable, probably wouldn't stand up in court.
Simple answer: you can't prove it ('beyond reasonable doubt'). I imagine if enough people independently whinged that someone was switching licenses after the event then that could consti
Re: (Score:2)
So, the CC license is irrevocable, and it's general (not specific to an individual). The right to cont