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Creative Commons License Flaws Claimed

kdawson posted more than 6 years ago | from the gaming-the-commons dept.

Media 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."

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Clarification please.. (3, Interesting)

Improv (2467) | more than 6 years ago | (#21956846)

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

Re:Clarification please.. (0)

Anonymous Coward | more than 6 years ago | (#21957190)

Which CC license is he talking about, and which of them actually permit revocation?
A bare license (i.e. not a contract) is generally revocable at any time by the licensor. Second or third parties do not get to "permit" or "not permit" revocation, though estoppel may come into play under some circumstances.

Re:Clarification please.. (0)

Anonymous Coward | more than 6 years ago | (#21957414)

though estoppel may come into play under some circumstances.
That's a bit technical from the layslashdotter's perspective, but do you mean that a person who revoked a CC license, and then sued someone who kept using the material, would likely lose their lawsuit if they didn't first take reasonable steps to inform a previously-licensed person that the license had been revoked?

Re:Clarification please.. (1)

Thansal (999464) | more than 6 years ago | (#21957420)

I still fail to see the problem.

Don't you have to first present the person that is infringing on your IP notice to stop before you can sue?

WANLBWPLOTV (5, Insightful)

WED Fan (911325) | more than 6 years ago | (#21957474)

I would like for the Slashdot community to clarify matters.

??!!!??!!

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?

Re:WANLBWPLOTV (0)

Anonymous Coward | more than 6 years ago | (#21957676)

When A Nerf Like Bush Wanes, Planetary Loss Of Trust Vindicated?

Re:WANLBWPLOTV (5, Funny)

WED Fan (911325) | more than 6 years ago | (#21957736)

We Are Not Lawyers But We Play Lawyers On T.V.

Re:Clarification please.. (0)

Anonymous Coward | more than 6 years ago | (#21957606)

Read The Fine Article.

It is a very good article, something that doesn't quite fit on /..

Re:Clarification please.. (2, Informative)

SharpFang (651121) | more than 6 years ago | (#21958470)

none, but with no registration process there's no proof the work was ever under CC.

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? (5, Insightful)

autophile (640621) | more than 6 years ago | (#21956864)

...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

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

It Only Has To Happen Once To Be Scary (1, Insightful)

eldavojohn (898314) | more than 6 years ago | (#21957198)

First, how often does that really happen?
The problem is that (and any legal department knows this) it only has to happen once for you to pay out millions of dollars. So it only has to happen once to be scary and set precedence.

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.
Well, with any other copyright, I think there's very stringent usage rights set and signed for and everyone's aware of who's using who's material. Not so in the CC world, or at least they don't want it that way. So it's a bigger problem there because people are 'free' to use everything and I'm sure there's sites out there hosting CC sound clips and images and the like. This kind of orgy of use is what makes CC particularly vulnerable to these scam artists.

Re:It Only Has To Happen Once To Be Scary (5, Informative)

snarkbot (1074793) | more than 6 years ago | (#21957584)

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.
Well, with any other copyright, I think there's very stringent usage rights set and signed for and everyone's aware of who's using who's material. Not so in the CC world, or at least they don't want it that way. So it's a bigger problem there because people are 'free' to use everything and I'm sure there's sites out there hosting CC sound clips and images and the like. This kind of orgy of use is what makes CC particularly vulnerable to these scam artists.
The article appears to complain about the case where a 12-year-old takes a copyrighted, non-CC-licensed commercial photo from a third party, removes any copyright notice, and put its up under a CC license. GP has it right -- this is no different than if the 12-year-old takes that same image and sells it to a third party, or simply hands it to someone and says, "you can use this photo I took for any purpose you like." The same rights and remedies apply, and it really has nothing to do with the CC at all.

Re:It Only Has To Happen Once To Be Scary (3, Informative)

uniquename72 (1169497) | more than 6 years ago | (#21957768)

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 letter getting sent.

Re:It Only Has To Happen Once To Be Scary (0)

Anonymous Coward | more than 6 years ago | (#21957838)

who's using whose

Re:It Only Has To Happen Once To Be Scary (2, Informative)

DerekLyons (302214) | more than 6 years ago | (#21958254)

Well, with any other copyright

CC isn't a copyright - it's a distribution license.

The catch with CC (4, Interesting)

sterno (16320) | more than 6 years ago | (#21957654)

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.

Re:The catch with CC (2, Insightful)

bhsx (458600) | more than 6 years ago | (#21957882)

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?

Re:The catch with CC (0, Troll)

Captain Splendid (673276) | more than 6 years ago | (#21958092)

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?

Re:The catch with CC (1, Informative)

Anonymous Coward | more than 6 years ago | (#21957938)

Are you referring to the Virgin Mobile case?

http://creativecommons.org/weblog/entry/7680 [creativecommons.org]

Re:How often does that happen? (1)

FellowConspirator (882908) | more than 6 years ago | (#21958376)

It's not a matter of relicensing a copyrighted work. All works are copyright until they are explicitly placed into, or statutorily pass into the public domain. Licenses don't apply to public domain works since no license is ever required for something in the public domain.

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 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.

If someone takes a work that they don't have copyright to and distributes under a CC license, this is not "relicensing". That's simple fraud. There's no problem there, you would do the same thing as you would if someone took a non-CC work and distributed indicating it was in the public domain: namely sue the initial violator for willful infringement and any other parties distributing copies (generally speaking, if the court finds a party copied a work in good faith believing it to be public domain or licensed and halts distribution after notification, that party will generally be let off the hook).

There's nothing wrong with Creative Commons that isn't wrong with the implementation of copyrights in general (particularly in the USA). The same problems exist with all other licensing schemes as well.

Re:How often does that happen? (1)

Sancho (17056) | more than 6 years ago | (#21958586)

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.

I Must Be Confused ... No Backsies! (5, Informative)

eldavojohn (898314) | more than 6 years ago | (#21956888)

Well, I'm familiar with criticism of the creative commons license [wikipedia.org] from people like Dvorak or Debian [wikipedia.org] but there's something here that is confusing to me. The idea that you can un-creative commons something is ... not right.

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.
I haven't read the article, but sounds just wrong to me.

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 ... although I think I am wrong about that last part, I am so used to and in love with the GPL that it's just how I think.

Well, from the faq [creativecommons.org] :

What if I change my mind?

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.
So seriously, you may well be right with the first two issues but this third concept is foreign to me and I'm sure many lawyers would be interested in how you 'revoked?' a license. What the?

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.

Re:I Must Be Confused ... No Backsies! (2, Informative)

Anonymous Coward | more than 6 years ago | (#21957312)

You probably should have read the article then. The author specifically addresses that issue. =)

The general (erroneous) belief is that once you assign a photo a CC-license, it is permanent--that you cannot revoke the CC. Well, that's not precisely true. To explain, let's start with what's on the FAQ on the Creative Commons website:

        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.

The source of the misunderstanding centers around what the CC is attached to. It's not the photo, but user of the photo. Or rather, the terms of use that were in place at the time they acquired the image. The language says, "you cannot stop someone who has obtained your work under a CC license." It's the someone that you can't revoke the license from, not the photo. As you may have seen later in the same FAQ, you can revoke the CC license and "redistribute" the photo, but most people skim over this and forget about it.

All but the unscrupulous photographer, that is. He exploits it. If he withdraws the CC license terms from the photo, then all new users of the image may not use it under the terms of CC. His exploitation of this little-known, misunderstood fact is the nail in the coffin for anyone who uses CC-licensed images at all, ever. Why?

Re:I Must Be Confused ... No Backsies! (4, Insightful)

Kjella (173770) | more than 6 years ago | (#21957632)

The author is an idiot. Assuming the original release was legit, whereever you get the CC'd image has permission to redistribute it under CC, and that's the end of it. This would only apply if someone later got it directly from the photographer WITHOUT any license attached and no sane person would use it commercially without one. If you're highly misleading about it, estoppel would apply anyway.

Re:I Must Be Confused ... No Backsies! (1, Insightful)

Anonymous Coward | more than 6 years ago | (#21957336)

I skimmed the articles (I didn't read them because they were tedious, boring, and just a tad misguided). The issues being raised, however, do not seem to be specific to the CC license, but to copyright in general.

Yes, if someone releases work under CC for which they do not own the copyright, and you use that work, you are liable. But so is the person who illegally redistributed it under CC. This would be true with any other license; it is never legal for someone to arbitrarily re-release someone else's copyrighted work at all, under any license, CC or otherwise.

Using CC content increases your chance of being sued, yes, but not because the license was CC, but rather because someone else generated that content. Whenever you use any content that someone else generated, under any license, you increase your chance of being sued. This is because the laws governing the issue, and the means of use available, are complicated, not because the CC is fundamentally flawed.

On the issue of revocation; you CAN NOT revoke the CC license on a work after you have released it under that license. You can re-release that same work under a different license (provided you own the copyright on it, of course), but the copies you had previously released under CC remain under CC. So the point is moot.

Copyright law is a mess, and it is only getting messier. That about sums it up, I think.

Re:I Must Be Confused ... No Backsies! (1)

xerph (229015) | more than 6 years ago | (#21957400)

You can re-release that same work under a different license (provided you own the copyright on it, of course), but the copies you had previously released under CC remain under CC. So the point is moot.


Not quite. As stated in the article, under US copyright law the burden of proof is on the defendant to prove that infringement did not take place. Proving that you legally obtained an image where no financial records likely exist would be quite the challenge for most people to overcome:

The next critical piece to this that's important to understand is that, in court cases involving copyright infringement, the burden of proof is on defendants: they have to show where they got the image and provide evidence of it. If a claim of infringement is made, the onus is entirely on the defense to establish innocence, not the photographer to prove guilt. (After all, a photographer can't possibly know where someone got his image.) And, as virtually all savvy photographers know, most people who get free images (whether CC or not) almost assuredly have no recollection where they got them, nor is there a paper trail for providing this. It is only when a company pays for an image can they go back to accounting records and pull up receipts and provide proof.

No Termination (1)

Bruce Perens (3872) | more than 6 years ago | (#21957392)

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.

So, I am very dubious that CC licenses can terminate.

Bruce

Re:No Termination (2, Insightful)

Bruce Perens (3872) | more than 6 years ago | (#21957506)

Actually, Heller is not saying that CC licenses can terminate. He's saying that you can't trust someone who uploaded a pictrue to flickr to be an actual copyright holder. And they can be a legal minor. I suppose we could fix this with digital signature and certification, if it was that important. Right now we just expect commercial users to employ due diligence, and they don't.

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.

Re:No Termination (1)

andphi (899406) | more than 6 years ago | (#21957724)

Just to prove your point for you: I'm someone who uses CC licenses on his written work (all of it in progress and none of it widely published) and I'd like to what know model release is.

Re:No Termination (3, Informative)

Bruce Perens (3872) | more than 6 years ago | (#21958100)

When you take someone's picture to use commercially, they have a right to be paid. Model release is how they sign away that right. This may also apply to inanimate objects in some cases. There are many venues that post that commercial use of photographs is prohibited without permission. And you can take a photo of someone else's copyrighted work, which would make your photo an unlicensed derived work.

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

Re:No Termination (0)

Anonymous Coward | more than 6 years ago | (#21958244)

I once tried to raise the issue of release vs. license at Wikipedia, but was essentially ignored. What can you do?

But Heller is saying the CC can be revoked at any time, and the FAQ at CC appears to agree. Whether this can be used in the manner he claims to get-rich-quick is an interesting question, but one I suspect will be "no": a court would likely find some malfeasance on the part of the plaintiff. Stupid legal tricks.

But it is much more interesting in that in all cases where the images I have on Wikipedia that have drawn commercial attention, the prospective users have all contacted me "in writing" (so to speak). Which suggests that it would be difficult for anyone to play the silly game Heller mentioned if the licensee had an actual signed contract in hand. So rather than just ignoring the CC stuff, perhaps commercial users will just insist on a normal piece of paper, just like they get from Getty and the rest of them.

Re:No Termination (1)

fbjon (692006) | more than 6 years ago | (#21957924)

The licence indeed states that it is non-revocable. However, the license can obviously be changed by the owner, meaning all new users will fall under another license. At this point, TFA claims that the old users (defendants in a prospective evil lawsuit) will now have the burden of proof that they obtained the image under a Free license, and that this burden will likely prove too heavy for most to bear.

Re:No Termination (1)

Bruce Perens (3872) | more than 6 years ago | (#21958300)

At this point, TFA claims that the old users (defendants in a prospective evil lawsuit) will now have the burden of proof that they obtained the image under a Free license, and that this burden will likely prove too heavy for most to bear.

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 prosecution for perjury to do it. This has nothing to do with CC.

Bruce

Re:No Termination (2, Interesting)

DragonWriter (970822) | more than 6 years ago | (#21958658)

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:I Must Be Confused ... No Backsies! (4, Informative)

Bazman (4849) | more than 6 years ago | (#21957444)

Here's his make-money-fast scheme:

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]

Re:I Must Be Confused ... No Backsies! (2, Interesting)

Raindance (680694) | more than 6 years ago | (#21957792)

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:I Must Be Confused ... No Backsies! (1)

corsec67 (627446) | more than 6 years ago | (#21958186)

Your site is much less likely to get indexed if you do an exclude all in your robots.txt.
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.

Re:I Must Be Confused ... No Backsies! (1)

Raisey-raison (850922) | more than 6 years ago | (#21958390)

Part of the answer to this problem is to change the law so that the of proof is NOT on the users to show they got it legally. Perhaps you would begin with a neutral position and expect each side to argue on the balance of probabilities as to whether a CC license was granted. Secondly make the old 'switcheroo' a big time felony with huge fines - 10 times what he could have sued people for. If people knew they could lose their shirt and go to jail for this old 'switcheroo' I am not so sure they would go for it. Make sure as well that one can sue civilly for performing a 'switcheroo' and again make the damages 10 times what the original guy was trying to sue for. Additionally allow punitive damages.

Re:I Must Be Confused ... No Backsies! (1)

mhall119 (1035984) | more than 6 years ago | (#21958556)

Interesting, and with implications beyond CC licenses as well. Suppose I create a small application, license it under the GPL, and distribute it from my own website. Then, some company starts to use and re-distribute it, following the GPL. Next I scrub my site and my code of all references to the GPL, and claim it was never licensed as such. Wouldn't this cause a very similar situation?

Re:I Must Be Confused ... No Backsies! (2, Insightful)

vux984 (928602) | more than 6 years ago | (#21958562)

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'.

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 the switcheroo problem I've just outlined.

The 'old switcheroo' problem is trivial to work around. Users need to simply protect their investment by documenting how and where they got the photo, preferably with screenshots, showing the photo and its CC license. They should do this with *all* photos they buy or otherwise acquire.

If anything, CC photo distributors should simply make the process more 'transaction like' so that images downloaded, while still 'free', are bundled in packages with model release forms, with confirmation emails indicating that the image had been downloaded from the-site, on such and such a date, under such and such a license.

I.e. its not a flaw of the license, its a flaw of the distribution system.

If 'bigstockphoto' let you buy download credits, and then when you clicked on a link and downloaded an image they simply removed a credit, we'd have the same problem. No evidence that you purchased and licensed a particular photo... at best evidence you paid for a photo. But no, they send you confirmation emails identifying the file, with custom download links etc etc. So if you get sued later on, provided you kept everything you can document that you obtained the file from them, legally.

And even then you should do more diligence; what if bigstockphoto.com goes under and vanishes from the internet. Suddenly users everywhere get sued... all they have is some confirmation emails that say they bought "image0005234.jpg". But possibly no copy of the license, and no proof that image005234.jpg is the image they are being sued over...

Re:I Must Be Confused ... No Backsies! (1)

ehrichweiss (706417) | more than 6 years ago | (#21957926)

IANAL, but revocation probably happens because it could be considered "unconscionable" to not be able to revoke a license in certain cases, and if a clause is considered unconscionable and that clause isn't severable from the rest of the contract, then the whole contract could potentially fall apart.

Re:I Must Be Confused ... No Backsies! (1)

bloobloo (957543) | more than 6 years ago | (#21958416)

The CC licences are not contracts. The photographer does not receive any consideration from the user. A contract must contain an offer, an acceptance, and an exchange of considerations.

Re:I Must Be Confused ... No Backsies! (1)

DragonWriter (970822) | more than 6 years ago | (#21958536)

The idea that you can un-creative commons something is ... not right.


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.)

Courts may apply the doctrine of estoppel to prevent what they see as substantial injustice from such a revocation where the licensee has reasonably and detrimentally relied on the licensors representation that the license would not be revoked.

This isn't something special to the CC family of licenses, either; it applies to all gratuitous licenses, including (e.g.) the GPL family of licenses.

Relicensing is the issue (1)

Midnight Thunder (17205) | more than 6 years ago | (#21956896)

I am not so sure that this is so much an isuee of Creative Commons, as it is the gray void that is relicensing. You should only be applying the CC to your own work and if you are applying the CC to something else, then you should responsible for the fallout, especially if the license is incompatible with the original.

Re:Relicensing is the issue (4, Insightful)

tjstork (137384) | more than 6 years ago | (#21957044)

I am not so sure that this is so much an isuee of Creative Commons, as it is the gray void that is relicensing. You should only be applying the CC to your own work and if you are applying the CC to something else, then you should responsible for the fallout, especially if the license is incompatible with the original.

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.

Re:Relicensing is the issue (1)

nahdude812 (88157) | more than 6 years ago | (#21957280)

And X, Y, and Z turn around and sue B for misrepresenting the image to begin with. But like you said, this problem is not a Creative Commons problem, it's problem endemic to copyright which Creative Commons inherits because it is a license under copyright law.

Re:Relicensing is the issue (0)

Anonymous Coward | more than 6 years ago | (#21957618)

How is that specific to creative commons?

Owner A has photo
B release A's photo under any other licence to X,Y,Z
A sues X,Y,Z but really B is to blame

Re:Relicensing is the issue (1)

ScentCone (795499) | more than 6 years ago | (#21957738)

Owner A has photo
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 the fact that exactly $0 is what you can sue for, since works that aren't registered with the CO aren't eligible for any sort of statutory penalty when mis-used.

If A does NOT use the CC, but likewise doesn't register the image, he's still only going to be able to pursue in court what he normally would have charged to license the image. And generally, the 30% of that that a lawyer would want in order to take such a case would just about buy that lawyer and his assistant a half-caffe-no-whip-skinny-latte on the way to civil court.

Re:Relicensing is the issue (1)

cfulmer (3166) | more than 6 years ago | (#21957878)

A's use of the CC is a statement that there will be no monetary licensing costs.


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.

Re:Relicensing is the issue (1)

ScentCone (795499) | more than 6 years ago | (#21958030)

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.

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 essentially no consequence. Sure you can sue them, since you can practically sue a turnip. But if you haven't registered your works with the CO, then you cannot pursue statuatory damages. And that's the part that the vast majority of artists aren't thinking about.

Re:Relicensing is the issue (1)

cfulmer (3166) | more than 6 years ago | (#21958490)

Sure, without registration, you can only get actual damages & attorney's fees. But, if you haven't registered, you can still get actual damages. The fact that you're allowing some uses for free does not imply that you'd allow all uses. Stephen Colbert, for example, allowed viewers to create derivative works in his "green screen challenge," but would have been able to collect decent damages if his video had been used in a commercial, even if it was never registered.

Plus, if you register and they infringe again, then you can get statutory damages for infringments that occur after the registration.

Finally, you can also get an injunction ordering them to stop infringing.

So, the situation isn't quite as dire as Heller seems to believe. You're better off registering, but still have remedies if you don't.

Re:Relicensing is the issue (1)

ScentCone (795499) | more than 6 years ago | (#21958654)

The fact that you're allowing some uses for free does not imply that you'd allow all uses.

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 that's his point.

Clearly opaque (1)

teasea (11940) | more than 6 years ago | (#21956936)

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."

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.

Flaw #1: (-1, Troll)

Anonymous Coward | more than 6 years ago | (#21956948)

Allowing niggers to license things under CC.

Just kick 'em all out. Unnecessary race.

ummmm (5, Insightful)

demonbug (309515) | more than 6 years ago | (#21956958)

"...and I would like for the Slashdot community to clarify matters."


I LOL'd.

Re:ummmm (0)

Anonymous Coward | more than 6 years ago | (#21957082)

Me too.

Re:ummmm (1)

Thornburg (264444) | more than 6 years ago | (#21957144)

I did more than just laugh... The Slashdot community is now a legal expert? They can't even agree on basic facts like vi is superior to emacs. How do you expect the collective Slashdot mind to come up with any cohesive answer to a complex legal question?

Re:ummmm (1)

msuarezalvarez (667058) | more than 6 years ago | (#21957512)

Well, the /. community may very well provide different readings, points of views, related information and so on. That is not `a collective coming to a cohesive answer', but it can be useful anyways.

Re:ummmm (1)

rucs_hack (784150) | more than 6 years ago | (#21957990)

Well, the /. community may very well provide different readings, points of views, related information and so on. That is not `a collective coming to a cohesive answer', but it can be useful anyways.

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..

Re:ummmm (1)

n dot l (1099033) | more than 6 years ago | (#21957850)

"...and I would like for the Slashdot community to clarify matters."

I LOL'd.
Yeah. First thing I thought when I read that is, "You must be new here..."

Re:ummmm (1)

R2.0 (532027) | more than 6 years ago | (#21958076)

My reaction was "This is not the Slashdot you are looking for."

ha (0, Redundant)

nomadic (141991) | more than 6 years ago | (#21956964)

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

Why would the Slashdot community be able to clarify matters?

Re:ha (0)

Anonymous Coward | more than 6 years ago | (#21957556)

Why would the Slashdot community be able to clarify matters?

Because we're all highly intelligent and rational people, especially when it comes to legal matters? Oh, and we'll never let any sort of dogma cloud our judgment.

Reliance (3, Interesting)

Russ Nelson (33911) | more than 6 years ago | (#21957030)

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.

clarification (0, Troll)

fattmatt (1042156) | more than 6 years ago | (#21957098)

...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.

Wrong on all counts, troll (1, Informative)

spun (1352) | more than 6 years ago | (#21957260)

...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 advocating force, we just happen to like sharing and only an asshole would try to claim that voluntary sharing is bad.

We do like screwing over 'individualists' who want to profit off our sharing without contributing, though. Thus the GPLv3. Don't you hate that? We can band together and stop you from screwing us over for a profit. Sucks to be selfish, eh?

Re:Wrong on all counts, troll (1)

fattmatt (1042156) | more than 6 years ago | (#21957802)

ha... that was fun, but I thought the majority here are socialist libertarians? smells that way... as for Ron Paul ... go ahead, throw your vote away.

Re:clarification (0)

Anonymous Coward | more than 6 years ago | (#21957406)

...on slashdot the game is liberalism ... so we don't believe in such silly things as artificial monopolies such as copyrights and patents ... as they disturb the free market.

The fatal flaw in CC (0)

Anonymous Coward | more than 6 years ago | (#21957138)

The fatal flaw in Creative Commons is the concept of any type of "licensing" of "intellectual property". As anyone with any sense knows, the very notion of "intellectual property" is nothing more than theft. If supporters of "intellectual property" had there way, the very words we speak would be "licensed", and we'd have to pay a toll just to wish someone good morning.

Down with Creative Commons, the GPL, copyright, patents, and all other forms of theft masquerading as "intellectual property". The workings of human minds should be shared freely by all people, or not at all.

Re:The fatal flaw in CC (0)

Anonymous Coward | more than 6 years ago | (#21957732)

I wish you luck on your revolution. On the meanwhile, I'll continue using the most acceptable licenses in this world of ours.

And another flaw - Model Releases (4, Informative)

homer_ca (144738) | more than 6 years ago | (#21957146)

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.

http://yro.slashdot.org/article.pl?sid=07/09/22/0319252 [slashdot.org]

Re:And another flaw - Model Releases (1)

Fri13 (963421) | more than 6 years ago | (#21957404)

"There's a whole other issue with photos and videos separate from copyright: getting a model release from the people shown in the picture."

Not on all countries is model release required.

Re:And another flaw - Model Releases (0)

Anonymous Coward | more than 6 years ago | (#21957708)

Interesting link. Hadn't read much about that case before.

To me, that sounds like a major flaw with the commercial-use CC license - particularly with respect to version 1.0 vs. version 3.0 of the CC license. In 1.0, while disclaiming any warranty, there is language that seems to say that the photographer claims they have all the rights necessary to allow commercial use of the picture. This language is missing from version 3.0 - it merely disclaims any and all warranties.

This doesn't strike me as an improvement - if the photographer doesn't have all the rights necessary to allow commercial use (eg. didn't obtain model releases), they shouldn't mark it as allowing commercial use. Version 3.0 means that the photographer could still mark it as commercial use allowed, even if they don't have model releases. That flaw makes the license useless...you still have to go back and talk to the photographer to track down all the people in the photo. Isn't the whole point of the CC license that you _don't_ have to explicitly ask for redistribution rights?

Re:And another flaw - Model Releases (1)

Dogtanian (588974) | more than 6 years ago | (#21958008)

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 assume that people in that position would consider the legal implications of *any* license carefully- and if they didn't, I would consider it negligent.

For reasons I explained in the post, even if there was a (supposed) model release, Virgin would be negligent if they didn't double-check the validity of this first.

Why should I worry about Dan Heller's opinions? (5, Insightful)

jdgeorge (18767) | more than 6 years ago | (#21957210)

As far as I can tell, DHINAL (Dan Heller is not a lawyer). Why would I worry about his opinions, rather than the well informed opinion of Lawrence Lessig [lessig.org] , the law professor who actually founded the Creative Commons, and uses the licenses extensively?

Re:Why should I worry about Dan Heller's opinions? (1)

ScentCone (795499) | more than 6 years ago | (#21957510)

As far as I can tell, DHINAL (Dan Heller is not a lawyer). Why would I worry about his opinions, rather than the well informed opinion of Lawrence Lessig, the law professor who actually founded the Creative Commons, and uses the licenses extensively?

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 obligation to pay him for what he does unless the two of you strike up deal, but some people (say, businesses that need an image for use in promoting a product or documenting a service, etc) DO want to be able to turn to professional photographers who understand the nuances of contracts and who have a personal stake in the successful use of their creative work. How does it help anyone if the prevailing culture shifts towards the sense that things that it costs money, time, and a career's worth of education and training to create has no value?

He has a vested interest in being able to license his work in a way that serves both him and his customers. It's to his advantage - as it is to most creative professionals - that people who want to put their creativity to work (say, as the cover shot for some non-profit organization's annual fundraising brochure) understand that there is no free lunch. Someone may elect to license an image under the CC, but all Heller is doing is pointing out that unless you actually register the image with the actual, for-real copyright office, you have no ability to pursue statuatory damages when someone rips off your work. If it ain't registered, then all you can do is pursue the price you would have asked if the user of the image had bothered to license it from you legitimately. And the magically startling part of his message (for many people who are seduced by the warm-and-fuzzy CC feeling) is this: when you choose to provide your photograph to people under the CC license, you are explicitly saying that you consider it to have no monetary value. You have NO recourse when some company or church or web site decides to rip you off.

Heller (correctly, I think) points out that most people who post their images on flickr under the CC are thinking that if they catch some Super Evil Corporate Entity using their image without permission, that they're sitting on some litigation goldmine. And that's simply not true for the vast majority of such posters, because they're not doing the work of registering their work with the actual copyright office, the way that a pro does.

Why should you worry about Dan Heller's opinions? Because he's a working professional who lives in the real world and he has to have an actual, working understanding about this stuff because otherwise he won't be able to make a living. Mostly, here, he's just making sure that people witlessly checking the CC box on their flickr postings because it feels good to do so and may impress some organic Goth chick they met on Facebook realize that they are, in practical terms, signing away any reasonable expectation of recourse when they are ripped off - even when ripped off by someone who knowingly and deliberately does so in order to make money in the act of doing so. There are essentially no consequences for doing so, and he's trying to throw a bucket of water on people so that they'll realize that.

Re:Why should I worry about Dan Heller's opinions? (1)

jdgeorge (18767) | more than 6 years ago | (#21958322)

Thank you, that is a fair answer.

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 paying attention to what they're doing.

That said, I don't expect that the folks who aren't interested in reading a lawyer's site that provides information about the license he created will be any more likely to read a photographer's site about the license he understands moderately well.

I suspect that those who are inclined to treat the CC license as a click-through will continue to do so, regardless of who is trying to educate them about the consequences.

The bottom line is that I would not want ANYONE to get legal advice from a photographer/"artist" instead of a lawyer with expertise in the area of interest.

Re:Why should I worry about Dan Heller's opinions? (1)

ScentCone (795499) | more than 6 years ago | (#21958550)

The bottom line is that I would not want ANYONE to get legal advice from a photographer/"artist" instead of a lawyer with expertise in the area of interest.

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, and your insurance agent to make sure that you know how or if they all apply to you." And he's not really any different on this topic - he's just pointing out a gigantic, gaping hole into which many passionate amateur or small-time photographers seem to be continually stepping. Good for him.

Information wants to be anonymous (1)

Besna (1175279) | more than 6 years ago | (#21957214)

It has to be said. Bits don't care. They are laughing at all our legal wrangling.

Hilarious (1)

raoulortega (306691) | more than 6 years ago | (#21957254)

I would like for the Slashdot community to clarify matters
You're kidding, right?

woot. 7p (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#21957270)

for aal practical said one FreeBSD it has to be fun sorely diminished. create, m4nufacture I ever did. It [amazingkreskin.com] is not prone to

Starting off with a joke (0)

Anonymous Coward | more than 6 years ago | (#21957318)

"...and I would like for the Slashdot community to clarify matters."

HA! Thank you for that. It's always good to start my day with a joke.

intellectual property my ass! (3, Insightful)

doti (966971) | more than 6 years ago | (#21957364)

Welcome to the digital age, where information is free to be copied everywhere, without loss of the original.
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.

Re:intellectual property my ass! (1)

PhxBlue (562201) | more than 6 years ago | (#21958038)

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.

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.

Re:intellectual property my ass! (0)

Anonymous Coward | more than 6 years ago | (#21958356)

Thank you for clarifying this. It's nice to know that everything on the Internet, is, for all intents and purposes, worthless.

I still don't see how this would work... (1)

davide marney (231845) | more than 6 years ago | (#21957544)

The architecture of a plan to entrap is now compete:

      1. Register images with the copyright office
      2. Assign CC licenses to them and post to Flickr
      3. Wait a sufficient amount of time for people to pick them up (optional tactic: promote them like crazy under an alias)
      4. Revoke the CC license
      5. As the fish start jumping into the barrel, go get gun.... er, lawyer.
      6. Start with companies that didn't use the attribution: bang
      7. Whoever's left over, make them show when and how they got the image and that it was under CC-licensing at the time. If they can't prove it, bang.


IANAL, but Step 4 seems incorrect. It wouldn't affect anyone who had acquired the images in steps 1-3. Those people have a permanent, non-revokeable license. My understanding what that a CC licensee can only revoke future use, not past use.

Re:I still don't see how this would work... (1)

Bazman (4849) | more than 6 years ago | (#21958424)

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.

So, if you use a CC-licensed image, get a signed copy of the license from the supplier.

Re:I still don't see how this would work... (1)

FellowConspirator (882908) | more than 6 years ago | (#21958634)

A CC licensee can't revoke use at all, obviously. Nor can the CC licensor, since, in using the CC license, they've granted others the right to distribute under the same terms as they've received their copy. The terms are irrevocable once two parties have accepted the terms (which one party does by providing the work under the auspices of the license, and the second party by receiving it in the same manner).

So, the CC license is irrevocable, and it's general (not specific to an individual). The right to continue to distribute the work under the original terms is transferred, and as part of it not only the right, but the obligation to grant the recipient to redistribute under the same terms.

This is an entirely different subject from the notion of model releases - which is another issue that affects CC and non-CC works in precisely the same manner.

The biggest issue with CC is that it's proving a work was licensed under any terms without a signed agreement (or receipt) is difficult. If I were to use a work commercially, I'd make sure I'd have some sort of documentation (perhaps a screenshot) that you found a CC license for the work. For non-commercial uses, I don't see why you'd bother. For a non-commercial work, it should be sufficient to stop using the work and indicate that you, in good faith, believed the work to be CC-licensed and yourself in compliance (I suspect you'd need to be specific about how you came to reach the conclusion).

not exclusive to CC (2, Insightful)

TheSHAD0W (258774) | more than 6 years ago | (#21957566)

I don't understand why the Creative Commons license is being singled out as vulnerable to this sort of problem. Anyone, anywhere, could buy content from one entity who claims to have a copyright on it, then get hit with a lawsuit by another entity who disputes the copyright. Creative Commons is no more and no less subject to the problem.

Well, you've come to right place! (0, Redundant)

mi (197448) | more than 6 years ago | (#21957572)

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.

People, who actually produce content (like those silly photographers) are, of course, clueless. The place to come for clarification is Slashdot — the home of "information wants to be free", "Copyrights are imaginary", and "copying is not stealing".

Oh, and everyone INAL anyway...

On a more serious note.. (2, Insightful)

east coast (590680) | more than 6 years ago | (#21957674)

From the blurb: I would like for the Slashdot community to clarify matters.

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 (1)

cfulmer (3166) | more than 6 years ago | (#21957706)

So, there are some risks with using CC licenses:

(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 each licensee, and that the licensor can just decide to stop licensing to new licensees. I have a tough time believing that any U.S. court would agree with this--once you've licensed under CC, you're probably "estopped" from denying the license. (In other words, since other people depend on your license, you can't pull the rug out.) The point about "keep track of where you got it from, and keep proof that it's under a CC license" is a good one, but you have to do that with any picture CC or not.

The part about 'since you haven't registered it, you won't be able to get statutory damages' is only partially true -- if there are serial infringements (like, say, in an ad campaign), you can register and then claim statutory damages for any infringement after registration. And, that's true whether you use a CC license or not. Plus, it's not at all clear that "actual damages" are zero -- it seems to me that actual damages would be what the infringer would have had to pay for a license. Since there's a good market in photo licenses, this isn't that hard to figure out.

(If you need legal advice, find a lawyer for advice specific to your situation.)

Good question (2, Interesting)

Spazmania (174582) | more than 6 years ago | (#21957780)

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:Good question (1)

quanticle (843097) | more than 6 years ago | (#21958266)

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.

Re:Good question (1)

the phantom (107624) | more than 6 years ago | (#21958276)

And if you asked the same question of 500 photographers, novelists, poets, and composers? Do you think that, perhaps, the answer might be different? Which people are to be protected by the law?

The "whole" license isn't the problem (1)

CodeShark (17400) | more than 6 years ago | (#21958026)

The problem is that there are ways to game parts of the license in an unscrupulous manner that make it somewhat business risky to use a CC licensed image, unless as a company you do the proper amount of paperwork to document your license.

My reading of this is, "no problem so long as the source for the cc licensed image source is the original producer" because no publisher in their right mind should use ANY image without the proper license contract in hand, but if the licensor isn't the source of the original, the company may be using a fraudulently obtained resource. Seems sort of like the fact that f a company passes on a counterfeit bill, the US Treasury comes down on them like a ton of bricks, even if they weren't the original producer of the bogus bill.

My question is, can the CC licensing schemes be fixed to provide a layer of protection, or not?

WANAL (1)

emkman (467368) | more than 6 years ago | (#21958046)

I would like for the Slashdot community to clarify matters.
Sure, I can give you my expert legal opinion as soon as I get back from getting medical advice from my butcher and some advice on my love life from my carpenter.

Problem with Licensor, not License (0)

Anonymous Coward | more than 6 years ago | (#21958450)

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.


If I take a work that is not mine and attempt to license it to somebody else (under ANY license), that's my fault, not the fault of the license. CC just happens to be an easy target, because a lot of people will use material that is clearly labeled as a shared resource. The bad goes to the person incorrectly applying the label, not the label itself.

If this problem is a very common and very serious flaw in CC licensed stuff, then add a provision to the license saying the person is taking responsibility for the material they place under the license. If it truly is your own work, then you've got nothing to worry about. If you've misused somebody else's work and placed it under CC without obtaining a proper license yourself, then you're the one without the chair when the music stops. (You can also chain this; obtaining a work under CC releases the person obtaining it from responsibility. So, if you start with CC works and re-release under CC, you can point back to the person holding the original responsibility.)

Seems that those who poison the well should be the ones responsible for cleaning it, doesn't it?

Also, CC should create a metadata scheme for license revocation. Don't get me wrong. The person who releases under CC shouldn't be able to revoke it, but rather CC itself can "revoke" material (in a computer-readable way) that was improperly relicensed under CC by somebody else.

The problem is not Creative Commons. (0)

Anonymous Coward | more than 6 years ago | (#21958692)

The problem is not the creative commons license, the problem is the person who used an image without obtaining the proper releases and authorization from the creator of the work.
Just because an image is under creative commons, doesn't mean you should use an image without contacting the copyright owner and obtaining the proper legal paperwork permitting you to use the image. This includes model releases and confirmation of the license terms. Anyone who publishes some one else's images who doesn't do their homework is a fool who should be sued for stupidity.
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