Creative Inevitability

It was a sense of inevitability that I read about the lawsuit against Creative Commons and Virgin Mobile, Australia. The suit came about because of the recent Virgin Mobile use of photos licensed for commercial use via a CC license.

Not surprising to read Lawrence Lessig’s optimistic look at the issue, though his segue going from a thoughtful look at where things went wrong to “everything worked as planned” is a rather interesting read:

this case does again highlight the free culture function of the Noncommercial term in the CC license. Many from the free software community would prefer culture be licensed as freely as free software — enabling both commercial and noncommercial use, subject (at least sometimes) to a copyleft requirement. My view is that if authors so choose, then more power to them.

But this case shows something about why that objective is not as simple as it seems. I doubt that any court would find the photographer in this case had violated any right of privacy merely by posting a photograph like this on Flickr. Nor would any court, in my view, find a noncommercial use of a photograph like this violative of any right of privacy. And finally, as the world is just now, while many might resist the idea of Virgin using a photograph of theirs for free (and thus not select a license that explicitly authorizes “commercial use”), most in the net community would be perfectly fine with noncommercial use of a photograph by others within the net community.

The Noncommercial license tries to match these expectations. It tries to authorize sharing and reuse — not within a commercial economy, but within a sharing economy. It tries to do so in a way that wouldn’t trigger at least most non-copyright rights (though again, most is not all — a CC BY-NC licensed photograph by a voyeur still violates rights of privacy, for example). And it tries to do so in a way that protects the copyright owner against presumptions about the waiver of his rights suggested by posting a work freely.

I began to write on my concerns about Creative Commons, as soon as they were released. Years ago, in response to a comment by Sam Ruby, I wrote about the potential problems for confusion associated with the CC licenses:

Sam, in the legal world there is no ‘seed’ planting. There is clarification or confusion.

Not all forward motion is positive. I’d rather see people hesitate on using the CCL, and the CC open a dialog with the community (through a weblog with comments or a discussion group or like), then to continue using the CCL, perhaps incorrectly, all based on wonderful sounding words and a cute movie.

I appreciate the nobility of the Creative Commons intent and effort. But I’d appreciate it more if they combined that with an interactive element that allows us all to understand better what it all means.

I guess we have a better idea of what it all means now. But I wrote that over five years ago.

In response to this issue, Suw Charman wrote:

I like to think that the world is based on goodwill. People are, generally speaking, nice and, by default, they will respect and help others. Certainly humans are fundamentally and inescapably social creatures that need each other on a minute-by-minute and day-to-day basis, and I think that being nice is one of the attributes that which fuels the reciprocation that makes helping someone else ultimately worth it for us ourselves.

I also think that the social web is an expression of the niceness that lubricates society. All the mores that have built up around blogging and wikis and sharing and Creative Commons are based on being nice: if you quote someone’s blog, it’s being nice to credit them; Wikipedia encourages everyone to be nice to newbies; sharing anything with strangers is an act of niceness in itself; and Creative Commons licences are predicated on the idea that people will be nice and respect them.

Whilst niceness isn’t universal – there are people who aren’t nice – it is a desirable attribute, so much so that niceness is taught and enforced from birth. I doubt there’s anyone reading this who wasn’t told as a child to “be nice” or to “play nicely”. Nice is good. We need nice.

This might explain why I get so cross when I come across examples of people, or especially businesses, not playing nice. But thanks to the internet, we now get to call out companies who, whilst sticking to the letter of the law (or Creative Commons licence), are flagrantly abusing its spirit.

The online world–Suw’s ‘social web’–is no different than the offline world: there are people who give all, and people who take all, and the rest of us in the middle just trying to get by. The online world–with its Creative Commons, Wikipedia, Citizen Journalism, Social Network/Web/Graph goodness–is no more ‘nice’ than the towns, cities, or hamlets we live in; it’s just newer is all and we don’t have to worry about landfill. Continuing to set any of this up on a pedestal only serves to generate a false sense of trust and security that inevitably leads to disillusionment.

In the post associated with the comment I quoted earlier, I wrote (with some modifications to grammar):

Pessimists see the world from its dark side—always the glass half empty. They never see that the world can be made better, or that problems can be solved. They’re not constructive, but they aren’t destructive, either.

Idealists, on the other hand, only see the light. In their world, the sun always shines (except for that bit of rain needed for the trees), the birds always sing, and humanity exists in harmony. They are pleasant, but they can also be destructive.

The idealist is destructive where the pessimist isn’t by introducing change without concern for the consequences. They say, “Look at this wonderful thing I have given you!”, but don’t provide the user manual. After you’ve managed to blow up a city block, when you look for the idealist they’ve moved on to another part of the world, to drop yet another idealism bomb on some unsuspecting poor sod.

Idealists. You gotta love em, because if you didn’t you’d want to strangle them.

Where this is all leading is the release this week of the Creative Commons licenses: those digital goodies that one can attach to our creative efforts to let others know if they can use these efforts in defined ways. Collaboration and community, 101. Like our idealist, the Creative Commons have dropped this little bomb in our lap and then left it up to us to determine how to use these things, and what they really mean.

Jonathon Delacour, who has been called, usually with respect and affection, many things but I don’t think ‘nice’ was one of them, shared some of my misgivings about the CC licenses. He wrote:

Picasso and Braque stood on each other’s shoulders as they invented Cubism but they were careful (and sufficiently smart) to maintain the copyright on their works. The Creative Commons Licenses, on the other hand, typify Thomas Sowell’s unconstrained vision of human nature by relying on people (“I’ve never met”) to behave honorably and to respect the integrity of my work. Spend five minutes on “this Internet” and tell me I’m not bound for disappointment.

I wouldn’t be so skeptical if the Creative Commons Licenses relied less on a rose-tinted vision of benign collaboration and instead provided greater safeguards for the real interests of those licensing their original works; or if, to borrow Thomas Sowell’s words, they replaced—to at least some degree—their “moral vision of human intentions” with a more pragmatic acceptance of the “inherent moral and intellectual limitations of human beings.”

In other words—and pardon my bluntness—what’s in it for me? Really? Other than distress and disillusionment?

It is this determination to manufacture an online Utopia, to hold fast to the rose-tinted vision that Jonathon described, of the Creative Commons–promoted by shrewd, sharp people who should have known better–that spurred me to write my criticisms years ago, and to continue to write on topic in the times since.

The Creative Commons web site has never, to my knowledge, responded to challenges, or discussion regarding the issues surrouding the licenses. When I derived a test of CC licenses, or when Creative Commons figured in a Dutch law suit, or Virgin Mobile grabbed several CC licensed photos from Flickr for its campaign, the Creative Commons community seemed to focus more on eliminating anything other than the type of license that caused the initial problems, rather than respond to the issues, or reflect on perhaps providing stronger warnings.

Ultimately, who really does benefit from the Creative Commons? Andrew Orlowski, who has never been referred to as ‘nice’ either, as far as I know of, wrote one of the most eye opening summations of the Creative Commons I’ve read:

Few participants who slap a CC license on their work understand that the mechanism was designed to benefit the network, not the humans, by removing “frictions” such as compensation or consent.

Some would say it is not the CC organization’s responsibility to answer the critics, to meet the challenges–that the organization doesn’t have an obligation to warn as much as it promotes. I say to stubbornly persist in wearing those rose-tinted glasses, to mark only the sunny hours, as the sun dial would say, is the ultimate irresponsibility. The Virgin Mobile lawsuit was inevitable, and it didn’t have to be.

It would seem that the online site Babble has been taking photos from Flickr, assuming they’re CC licensed, even when the photos they take are copyrighted by their owners.

No, I don’t blame CC. However, there is a growing assumption that photos at Flickr are CC licensed, and this is causing additional confusion. In addition, a CC licensed photo, even one designated as non-commercial, can be used in a magazine or newspaper, because that’s not necessarily considered ‘commercial’ use of the photo.

Just one of the many uncertainties and confusions around CC licenses, copyright, and fair use. That’s the main reason we shouldn’t be making it easier for people to license their work with CC.

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17 Responses to Creative Inevitability

  1. dave rogers says:

    Wonderful post, Shelley. Sad, but wonderful.

  2. Shelley says:

    Thanks, Dave.

  3. Regrets, I understand the sentiment, but I think much of it is misplaced. I believe the key fallacy is here:

    “The Virgin Mobile lawsuit was inevitable, and it didn’t have to be.”

    On the contrary, I’d say some sort of lawsuit was inevitable, as long as Creative Commons was trying to do anything significant. That is, as long as it waded into the swamp of copyright in any serious way, something was going to happen. It was only a question of, on what grounds.

    Copyright is an enormously complex beast. The ONLY way Creative Commons could avoid a problem is basically not to exist. What I think you’re missing is the issue that if they did what you said, they would possibly aquire liability, and be sued on that basis. And then flamed on the implicit basis that they made promises they couldn’t provide for.

  4. Shelley says:

    Seth, we’ll have to disagree on this one. I looked at the CC weblog, and nope, nothing on this lawsuit. You would think in a supposedly transparent organization, they’d at least mention it?

    Education does not assume responsibility. If it did, every teacher would be responsible for the mass murderers she or he taught. Discussing Virgin Mobile taking Flickr photos at the CC site would have not given the organization additional liability, but it could have helped inform people visiting the site. However, it would put a crimp into it’s determined push to only ‘count the sunny hours’, as it were. Frankly, I find the site to be intellectually dishonest.

    I imagine this lawsuit against CC will be dumped in court, but a lot of time and energy will be wasted that didn’t need to be. In the mean time, this suit demonstrates that the Utopia the creators of CC imagined, and the reality of the world, don’t map.

    What’s ‘interesting’ is the lack of interest in this event. The big news now is the Market. No one cares about anything that isn’t part of the Market. My God, Amazon allows music downloads. That’s real news now.

    This leads to a state of irony, where CC supporters and CC critics now find ourselves in the same place: howling in the woods, like so many lone wolves baying at the moon. Nobody really cares.

  5. Doug says:

    The Virgin Mobile lawsuit is as good an excuse as any to bring this topic back up again, but that lawsuit really isn’t about anything that was discussed here. It’s not about copyrights and usage rights, it’s about Virgin’s failure to get a model release. CC is only involved inasmuch as their licenses (starting with version 2) contain a disclaimer that the license doesn’t mean that the licensed property can be used legally—and in fact does not even guarantee that the licensor has a right to license the property in the first place.

    One interesting point here is that the photo is now no longer available under the CC license. What does that do to derivative works? If someone else already used the photo in something published with a CC license, how are they to be notified that they can no longer use the photo? Or can they continue to use the photo? And what about people who then created derivatives from the derivative?

    For that matter, how does Virgin Mobile prove that at the time that they acquired the photo, it was licensed under a CC-BY license? A screenshot???

  6. Shelley, I liked hat you had to say about pessimists and idealists, but I think you’ve set up a false dichotomy. Pessimism is opposed to optimism, and idealists can actually come in both of those flavors (ie. pesimistic idealists and optimistic idealists).

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  8. Doug, once you’ve received a work under a license, you can do what you want under that license. The copyright holder may discontinue offering the work to others under that same license, but you already have it, and releases under other licenses do not affect you.

    Unless, of course, you’ve lost your copy and need to get the work again.

    All this, providing the license does not allow termination under some circumstances.

  9. Shelley says:

    Doug, a comment in the update I added to the post had the following:

    “Virgin Mobile AU was completely within the law to use the photos that they did, even if they could have attributed them better, given that the license was set to CC commercial and (based on what I’ve read so far) model releases are only required if there is implied endorsement or if you’re a celebrity.”

    As you can see, there’s a huge amount of confusion about what it exactly means to attach a CC license, especially one that allows commercial use.

    Professionals take the time to understand copyright, fair use, the concepts of privacy and the need for model releases.

    Most of the people using CC licenses are not professional. They’re amateurs who have been told that ‘this is a good thing’, without really understanding all rights associated with copyright when it comes to photographs. These are dialogs that the CC should have been having.

    So one really can’t separate the concept of copyright of private buildings within photos, or when you can and can’t use a photo of a person, and so on, because by attaching a ‘feel free to use for commercial purposes to this photo’, can also attach dozens of assumptions.

    Again, I have no doubts that CC will probably not have a problem with this court case. Others, however, won’t be as fortunate.

    Checked the front page of the CC site — nothing on this lawsuit.

    Michael, as to the issue of idealist/pessimist: artistic prerogative ;-)

  10. These are dialogs that the CC should have been having.

    Shelly, they can’t do that, pragmatically. They can’t (in terms of resources) educate people on the various intricacies of copyright law, which varies based on medium AND country. And people wouldn’t read it anyway even if they tried.

    Go *try* doing that (I have, with regard to DMCA issues). See what happens. It is a thankless task, and a relentless drain.

    And why should they trumpet on the front page of their site that they are being sued? They’re lawyers, remember? Their first instincts are to not to talk about litigation if they’re the defendant.

    People have been getting hurt by making bad copyright deals for decades . On an overall basis, I’d argue CC is far more positive than negative (have you ever looked at the terms-and-conditions of many “sharing” sites? Where giving up *commercial* rights is standard in the contract?!).

  11. Ethan says:

    Ripped from today’s headlines:

    Nerve Media, Inc. (“Babble”) stole a photo of my daughter without attribution, acknowledgement, or permission

    Quote de dinero:

    Babble’s editor Ada Calhoun responded to my notification of infringement by agreeing to remove the photo, and told me that their photo editor had told her the photo was creative commons and therefore fair game. That photo editor was grossly misinformed. None of my photos have ever been creative commons, and even if this one were, the license generally demands (1) attribution; and (2) noncommercial use. Babble’s pure theft of my copyrighted material would have failed both those requirements. This is all the more troubling because (1) I have always reserved all my rights with the copyright notification that appears to the right of every photo; and (2) long ago I also chose to take all possible steps to prevent downloading of my photos from flickr (you can’t just right click and save any of my photos).

    Personally, I always thought that CC seemed like a good idea from a distance, but really, not sure how one legally enforces it without invoking – wait for it – copyright. For the record, I do not use CC, and have not for a long, long time.

    Correct me if I’m wrong, but in a nutshell, wasn’t CC an attempt to “opt out” of copyright by declaring things to be “public domain” at the outset rather than whenever copyright law recognizes them as such? I’ll hang up and take my answer off the air.

  12. [Ritual disclaimer - I am not a lawyer, this is not legal advice]

    Sigh …..

    Ethan, for starters, you’re probably thinking of the “Gnu Public License”. That is indeed an avowed attempt to make a copyright anti-copyright. But it has nothing to do with Creative Commons.

    Creative Commons is focused on a standardized way of writing out a license with certain terms. One of the biggest myths is that it’s anti-copyright. No. That’s because copyright is conflated with maximal use of rights. You can license rights any still retain others under copyright.

    CC was an attempt to allow people to easily grant permissions for a general class of usages (noncommerical), or to make a bargain of allowing usage in return for attention (attribution). That’s all. It’s very moderate. The amount of huffing and puffing over this relatively small attmepts to even explore using copyright this way is a proof of how politicized copyright has become. CC is merely a boilerplate legal form for making a license – it doesn’t do anything that you couldn’t do in general, but unless you were a lawyer you probably wouldn’t know how to express it all in proper legal form.

    Shelley – I rest my case.

  13. Shelley says:

    Actual email conversation this week:

    “I really like your robin picture at _________. We have a site at ___________ where we _____________. May we use your photo?”

    “Sure”

    Seth, I rest my case ;-)

  14. Ethan says:

    Seth, thanks for the clarification. I can see where my comment suggests that CC was ONLY intended as an opt-out to copyright. However, there is indeed a classification in CC where a content creator can declare something to be public domain up front, rather than waiting for the copyright window to do that by default.

    I think a fair amount of confusion exists about CC because it wasn’t merely adopted (not deployed, different issue) as a standard licensing boilerplate. Many thought it was an alternative to copyright altogether. I suspect that the “all rights reserved” classification exists, which may be construed as “protected under copyright.” (Please don’t ask me to go round up oodles of examples to justify my use of “many thought…”. Please?)

    And no, I wasn’t thinking of GPL at all. I have little or nothing to do with GPL short of whatever programs I load onto Kubuntu from the repositories.

    I still wonder what recourse people have who get ripped off, such as the example I cited earlier. In that example, the content creator asserted copyright as opposed to CC terms, but what if the creator had thought that CC was a “one stop shop” for copyright related terms? I mean the people who explicitly say that “[whatever] is provided under a CC [whatever terms] license” without explicitly claiming any sort of copyright protection. (FWIW, ethmar.com explicitly contains a copyright notice, as if there’s lots of red meat there for sploggers or something.)

    However, to underscore your point about CCs inherent ease of use, I agree that for my purposes CC has been beneficial to understand how or if “free” content might be utilized. Shelley’s email example works too (been there done that), but it can be argued that sending an email is a more involved process than reading a CC icon. Same net end result though, yes?

  15. Ethan says:

    Also, Seth (comment 10)…

    And why should they [CC - EJ] trumpet on the front page of their site that they are being sued? They’re lawyers, remember? Their first instincts are to not to talk about litigation if they’re the defendant.

    There’s a note on CCs front page saying they’re being sued.

  16. Ethan, yes, CC has a way to give up copyright, but that’s not the hard part. It’s just there for completeness. If you want to reserve all rights, or give up all rights, you don’t need much work (maybe a little to make it done correctly, but it’s not a complicated case). It’s where you want to license certain rights but retain others that things get complicated, and legal language needs to be drafted with as much precision as is practical. That’s what CC is for, in terms of 99.9% of the cases.

    CC is an alternative to the standard “business model” of using copyright, trying to support a different want of making things more available noncommercial in return for attention or commercial uses.

    And like any “business model”:

    1) It’s entirely possible to make a bad business decision

    2) You’ve got to enforce the contract. If someone tries to rip you off, it’s often an expensive matter to get them to live up to the deal – but the contract-drafting lawyer won’t provide enforcement services too.

  17. Doug says:

    Well here I am, back again. First, a link to yet another model release lawsuit.

    Next, as to “model releases are only required if there is implied endorsement or if you’re a celebrity”. Privacy rights vary from place to place, and are generally part of common law rather than statutory. In general, though, model releases are required from any living person appearing in an advertisement whether a celebrity or not.

    But the reality is that for the non-celebrity, protecting their privacy rights is pretty difficult. Violation of privacy is generally a civil matter, not a criminal one. Suing to recover a modeling fee is simply impractical, except perhaps in Small Claims court or similar, and no other economic damages are usually involved for the non-celebrity. The main type of damages that can be sued for are emotional distress or defamation. Not surprisingly, emotional distress and defamation are alleged in both the Chang and Marsinko lawsuits.

    We now return you to the argument over the value of Creative Commons licenses. :-)