7 ms·

Misuse of Creative Commons-licensed photo leads to public apology

86 points by edward 10y ago

hodgesrm 10y ago
Open source license regimes are of dubious value unless there's visible case law backing it up. It's great that Niccolo Caranti made the effort to defend the Creative Commons license--this is a lot of effort regardless of whether you recover legal costs. (Personally I'll make double sure to attribute images from Wikipedia from here on out.)
- icebraining 10y ago
  Open source license regimes are of dubious value unless there's visible case law backing it up. The logic is backwards, though - if the license isn't valid, the default in the law is to deny the use of the work.
  - dietrichepp 10y ago
    There are some cases where infringement was recognized but damages were $0 because that was the amount the creator would have earned for a licensed use. Unless I'm remembering incorrectly.
    - tamana 10y ago
      Citation needed, that's patently absurd. Unless the damages were $0 PLUS following the terms of the license (adding a statement of credit for BSD, offering a download of the modified source for GPL etc) In general, the remedy for violating a license is to follow through on the license agreement.
  - hodgesrm 10y ago
    Assuming the denial is actually enforced, which it normally is not. And generally speaking the only enforcement mechanism is for somebody with standing to bring a lawsuit. GPL V2 licenses are violated on a constant basis in my personal experience. (I used to run a business that competed in the MySQL market.) It is relatively difficult to detect inclusion of GPL code in shipped binaries, for example, especially if the audience of users is not large or the binaries are part of a larger system.
scotty79 10y ago
Would BY-SA mean that article illustrated with that photo has to be also published as BY-SA? Same thing for a movie that has just a glimpse of this photo or a computer game that displays it once?
- paxcoder 10y ago
  Copyleft means that the derivative work should have been published under a compatible license (providing at least the same freedoms - in practice often the same license). The act of publishing does not automatically place the derivative work under the same or a compatible license; it means that the derivative work violates copyright and that the its author is liable for damages (unless fair use applies). Disclaimer: I am not a lawyer, and I am not liable for anyone taking above as legal advice.
- sago 10y ago
  Case law on CC is very minimal so far [0], so this hasn't been explored in court. ShareAlike is intentionally copyleft, yes. But it isn't clear what would constitute the 'derivative work'. If you had a glimpse of the photo in the movie with a 'Ken Burns' effect, would releasing a CC 2 sec video of that effect applied to the image be okay? Probably. But who knows if anyone would succeed in suing you to either CC the whole film, or pay for another form of license. Is an article containing an image, used in its original form derivative? Probably not, the Wikipedia citation creator explicitly gives you this option: if you don't modify the image, only use it, then it doesn't prompt you to fill out the derivative information. Obviously that's not in any way legally binding, but gives an indication of how things tend to be used. [0] https://wiki.creativecommons.org/wiki/Case_Law https://wiki.creativecommons.org/wiki/Case_Law
  - icebraining 10y ago
    There's plenty of case law regarding derivative works; it's not CC specific, but why would it have to be? Either the license is valid or it's a straight-up copyright infringement. For example, there's case law regarding the use of a photo in a movie: http://fairuse.stanford.edu/overview/fair-use/four-factors/#too_small_for_fair_use_the_de_minimis_defense http://fairuse.stanford.edu/overview/fair-use/four-factors/#...
gaur 10y ago
If you actually wanted people to use your work freely, you'd release it into the public domain. This incident shows that CC evangelists can be just as controlling and litigious as the conventional copyright holders they inveigh against. So much for making the world more equitable and accessible.
- edoceo 10y ago
  +1 for use of "inveigh". Had to look it up.
- Donzo 10y ago
  I understand the spirit of your comment, but now seems like a good time to quote this page that someone posted to HN a couple of months ago: "Just as there is nothing in the law that permits a person to dump personal property in the public highway, there is nothing that permits the dumping of intellectual property into the public domain — except as happens in due course when any applicable copyrights expire. Until those copyrights expire, there is no mechanism in the law by which an owner of software can simply elect to place it in the public domain." http://www.rosenlaw.com/lj16.htm http://www.rosenlaw.com/lj16.htm
  - tamana 10y ago
    The public domain rule is true, but the analogy is absolutely absurd.
  - dragonwriter 10y ago
    That's both perhaps true in a hypertechnical sense but largely false in practical substance in the US; there are a number of legal principles (notably promissory estoppel) which make the practical effect of a stated dedication to the public domain by the creator very similar to what it says on the tin, even if the creator technically retains copyright, as it becomes practically, if not technically, impossible to enforce any of the exclusive rights under copyright to restrict downstream actions like copying or creation and distribution of derivative works after such a dedication.
greggman 10y ago
I ran into the issue that some TV show in the UK wanted to use a picture I have on flickr that's marked CC-BY 2.0 (not SA). In other words attribution required but not share alike. Anyway, for me one point of sharing CC-BY is to just let people use the image without asking. Of course lawyers got involved and the TV station contacted me and said I needed to sign some contract so they could use my image for free ?!???!! Sorry, I'm not going to sign some contract that I should have a lawyer look at $$$ and that also puts me on the line for any legal issues in the photo that comes up later especially when you aren't paying me. They moved on. Which is fine by me but sad in general that they didn't just take the license as is
- camperman 10y ago
  I had a similar incident with, strangely enough, Microsoft. It wanted to use one of my photographs in promotional material and asked permission. I said that permission had already been given by me in the form of a CC-BY and they were very welcome to use it. It took quite a bit of to-ing and fro-ing before I got annoyed and said that if its legal counsel didn't understand licenses of all things, then they probably should be fired.
  - mhurron 10y ago
    For things like promotional material, large companies will attempt to get explicit, signed permission instead of relying on something simply thrown up there on the web. They understood the licensing just fine, they also understand covering their ass explicitly. They don't feel like being left to your whims should you choose to change license to attempt to extort money out of them after they start a large campaign.
    - tamana 10y ago
      That's fine, but they shouldn't badger people to do work for free, then.
    - hh2222 10y ago
      How about some middle ground where the CC license says if you need explicit written consent, you must compensate the artist for their troubles?
323454 10y ago
I really dislike how the media will gladly take and use people's work without credit and yet at the same time they pursue copyright infringement of their cherished 70+ year old works like hounds at the track.
- SixSigma 10y ago
  "the media" is a lot of different people and companies.
  - tamana 10y ago
    substitute Disney for "media" and the comment stands
    - hodgesrm 10y ago
      Can you cite specific instances? I have not dealt with Disney but most established American companies put effort into avoiding this kind of liability.
    - Noos 10y ago
      Disney doing this is a net good, as it funds more projects. There are plenty of public domain animated shorts and characters, but once out of copyright no one seems to have any desire or incentive to protect or make new works from them as opposed to bundle bad copies of them on dollar dvds.
      - dimal 10y ago
        Disney has lobbied (and succeeded) to have the copyright length extended every time Mickey Mouse is coming up to it's copyright limit. Is it a net good when a multibillion dollar corporation manipulates IP laws to further its own interests? We've had our laws manipulated to protect a cartoon mouse. Copyright was meant to be a short term guarantee that creators could profit from their art, not an eternal claim of ownership.
        10y ago
JorgeGT 10y ago
It's interesting how this keep happening when it is so easy to do it right. In my case someone commented on my flickr that a startup was using one of my photos without attribution, but it only took one email and the CEO/founder immediately responded apologizing. Other times I've got emails asking me if it was OK to use a photo, as if they had to seek permission. I wonder if the problem is the need for more education/outreach to explain CC?
protomyth 10y ago
I recently took video of an elevator fire in North Dakota[1] and posted it on twitter. I was surprised by the number of messages I got asking if various news folks could use the video. Given this experience, I'm really surprised that this isn't more a of a problem as media really seems to be going into the weeds to find video / pictures of things. I also thought Twitter had some kind of statement in their TOS about this. I wonder what the interaction between externally hosted things with their licenses versus Twitter's TOS. 1) It was on my way home from work and I was parked for a bit
- jsmthrowaway 10y ago
  You bet it's a problem, and it is a somewhat new trend on Twitter. Someone blazed the trail and now every harried producer has a read-only Twitter account and mimics it; it's a last-couple-of-years phenomenon. I appreciate nothing more than coming across a grieving Twitter page showing photos of horrors with a billion entry level producers underneath it clamoring for usage rights like feeding sharks. This happened to you, it sounds like, and luckily you were removed enough from the story that it was no big deal. You might react and go "that's horrible, why would they do that?" but remember when Cathriona White died, and every 'news' organization in the world immediately (and I mean immediately) started calling her family demanding an interview simply on the basis of her relationship with Jim Carrey? I seem to recall someone in her family saying that they heard about her death from a reporter calling and asking for comment from a seven year old. He was pissed about it and good for him, really, and I say that as someone who used to be in a slightly more respectable part of that bloody industry. Twenty four hour news and, later, the Internet did this to us (well, really, we did and these were merely tools to satiate human nature). There is zero regard for "the right time" when interacting with subjects of stories any more by most producers. The right time is now because our readers demand fast content and fuck your feelings. The irony is that Twitter is probably the one platform that is tirelessly working to make a traditional journalist go back to being traditional by eliminating the urgency of reporting and shifting focus back to analysis and context. So it's weird to watch producers work Twitter to basically digest a primary source and be late by definition. Twitter is way better at telling me what's going on now. I want analysis and context from journalists now, but most haven't picked up on that yet. (This is also why Twitter will not eliminate the media, despite what some people say; half of journalism is placing events in context. Some might say half is a conservative estimate.) And that's even before you get into the viral video agencies who snap up rights from people who don't know any better, and I can't decide which is worse. Seriously, what a way to make money; what service do you provide, exactly?

86 points by edward 10y ago

Open source license regimes are of dubious value unless there's visible case law backing it up. It's great that Niccolo Caranti made the effort to defend the Creative Commons license--this is a lot of effort regardless of whether you recover legal costs. (Personally I'll make double sure to attribute images from Wikipedia from here on out.)

icebraining 10y ago
Open source license regimes are of dubious value unless there's visible case law backing it up. The logic is backwards, though - if the license isn't valid, the default in the law is to deny the use of the work.
- dietrichepp 10y ago
  There are some cases where infringement was recognized but damages were $0 because that was the amount the creator would have earned for a licensed use. Unless I'm remembering incorrectly.
  - tamana 10y ago
    Citation needed, that's patently absurd. Unless the damages were $0 PLUS following the terms of the license (adding a statement of credit for BSD, offering a download of the modified source for GPL etc) In general, the remedy for violating a license is to follow through on the license agreement.
- hodgesrm 10y ago
  Assuming the denial is actually enforced, which it normally is not. And generally speaking the only enforcement mechanism is for somebody with standing to bring a lawsuit. GPL V2 licenses are violated on a constant basis in my personal experience. (I used to run a business that competed in the MySQL market.) It is relatively difficult to detect inclusion of GPL code in shipped binaries, for example, especially if the audience of users is not large or the binaries are part of a larger system.

scotty79 10y ago

Would BY-SA mean that article illustrated with that photo has to be also published as BY-SA? Same thing for a movie that has just a glimpse of this photo or a computer game that displays it once?

paxcoder 10y ago
Copyleft means that the derivative work should have been published under a compatible license (providing at least the same freedoms - in practice often the same license). The act of publishing does not automatically place the derivative work under the same or a compatible license; it means that the derivative work violates copyright and that the its author is liable for damages (unless fair use applies). Disclaimer: I am not a lawyer, and I am not liable for anyone taking above as legal advice.
sago 10y ago
Case law on CC is very minimal so far [0], so this hasn't been explored in court. ShareAlike is intentionally copyleft, yes. But it isn't clear what would constitute the 'derivative work'. If you had a glimpse of the photo in the movie with a 'Ken Burns' effect, would releasing a CC 2 sec video of that effect applied to the image be okay? Probably. But who knows if anyone would succeed in suing you to either CC the whole film, or pay for another form of license. Is an article containing an image, used in its original form derivative? Probably not, the Wikipedia citation creator explicitly gives you this option: if you don't modify the image, only use it, then it doesn't prompt you to fill out the derivative information. Obviously that's not in any way legally binding, but gives an indication of how things tend to be used. [0] https://wiki.creativecommons.org/wiki/Case_Law https://wiki.creativecommons.org/wiki/Case_Law
- icebraining 10y ago
  There's plenty of case law regarding derivative works; it's not CC specific, but why would it have to be? Either the license is valid or it's a straight-up copyright infringement. For example, there's case law regarding the use of a photo in a movie: http://fairuse.stanford.edu/overview/fair-use/four-factors/#too_small_for_fair_use_the_de_minimis_defense http://fairuse.stanford.edu/overview/fair-use/four-factors/#...

gaur 10y ago

If you actually wanted people to use your work freely, you'd release it into the public domain. This incident shows that CC evangelists can be just as controlling and litigious as the conventional copyright holders they inveigh against. So much for making the world more equitable and accessible.

edoceo 10y ago
+1 for use of "inveigh". Had to look it up.
Donzo 10y ago
I understand the spirit of your comment, but now seems like a good time to quote this page that someone posted to HN a couple of months ago: "Just as there is nothing in the law that permits a person to dump personal property in the public highway, there is nothing that permits the dumping of intellectual property into the public domain — except as happens in due course when any applicable copyrights expire. Until those copyrights expire, there is no mechanism in the law by which an owner of software can simply elect to place it in the public domain." http://www.rosenlaw.com/lj16.htm http://www.rosenlaw.com/lj16.htm
- tamana 10y ago
  The public domain rule is true, but the analogy is absolutely absurd.
- dragonwriter 10y ago
  That's both perhaps true in a hypertechnical sense but largely false in practical substance in the US; there are a number of legal principles (notably promissory estoppel) which make the practical effect of a stated dedication to the public domain by the creator very similar to what it says on the tin, even if the creator technically retains copyright, as it becomes practically, if not technically, impossible to enforce any of the exclusive rights under copyright to restrict downstream actions like copying or creation and distribution of derivative works after such a dedication.

greggman 10y ago

I ran into the issue that some TV show in the UK wanted to use a picture I have on flickr that's marked CC-BY 2.0 (not SA). In other words attribution required but not share alike. Anyway, for me one point of sharing CC-BY is to just let people use the image without asking. Of course lawyers got involved and the TV station contacted me and said I needed to sign some contract so they could use my image for free ?!???!! Sorry, I'm not going to sign some contract that I should have a lawyer look at $$$ and that also puts me on the line for any legal issues in the photo that comes up later especially when you aren't paying me. They moved on. Which is fine by me but sad in general that they didn't just take the license as is

camperman 10y ago
I had a similar incident with, strangely enough, Microsoft. It wanted to use one of my photographs in promotional material and asked permission. I said that permission had already been given by me in the form of a CC-BY and they were very welcome to use it. It took quite a bit of to-ing and fro-ing before I got annoyed and said that if its legal counsel didn't understand licenses of all things, then they probably should be fired.
- mhurron 10y ago
  For things like promotional material, large companies will attempt to get explicit, signed permission instead of relying on something simply thrown up there on the web. They understood the licensing just fine, they also understand covering their ass explicitly. They don't feel like being left to your whims should you choose to change license to attempt to extort money out of them after they start a large campaign.
  - tamana 10y ago
    That's fine, but they shouldn't badger people to do work for free, then.
  - hh2222 10y ago
    How about some middle ground where the CC license says if you need explicit written consent, you must compensate the artist for their troubles?

323454 10y ago

I really dislike how the media will gladly take and use people's work without credit and yet at the same time they pursue copyright infringement of their cherished 70+ year old works like hounds at the track.

SixSigma 10y ago
"the media" is a lot of different people and companies.
- tamana 10y ago
  substitute Disney for "media" and the comment stands
  - hodgesrm 10y ago
    Can you cite specific instances? I have not dealt with Disney but most established American companies put effort into avoiding this kind of liability.
  - Noos 10y ago
    Disney doing this is a net good, as it funds more projects. There are plenty of public domain animated shorts and characters, but once out of copyright no one seems to have any desire or incentive to protect or make new works from them as opposed to bundle bad copies of them on dollar dvds.
    - dimal 10y ago
      Disney has lobbied (and succeeded) to have the copyright length extended every time Mickey Mouse is coming up to it's copyright limit. Is it a net good when a multibillion dollar corporation manipulates IP laws to further its own interests? We've had our laws manipulated to protect a cartoon mouse. Copyright was meant to be a short term guarantee that creators could profit from their art, not an eternal claim of ownership.
      - 10y ago

JorgeGT 10y ago

It's interesting how this keep happening when it is so easy to do it right. In my case someone commented on my flickr that a startup was using one of my photos without attribution, but it only took one email and the CEO/founder immediately responded apologizing. Other times I've got emails asking me if it was OK to use a photo, as if they had to seek permission. I wonder if the problem is the need for more education/outreach to explain CC?

protomyth 10y ago

I recently took video of an elevator fire in North Dakota[1] and posted it on twitter. I was surprised by the number of messages I got asking if various news folks could use the video. Given this experience, I'm really surprised that this isn't more a of a problem as media really seems to be going into the weeds to find video / pictures of things. I also thought Twitter had some kind of statement in their TOS about this. I wonder what the interaction between externally hosted things with their licenses versus Twitter's TOS. 1) It was on my way home from work and I was parked for a bit

jsmthrowaway 10y ago
You bet it's a problem, and it is a somewhat new trend on Twitter. Someone blazed the trail and now every harried producer has a read-only Twitter account and mimics it; it's a last-couple-of-years phenomenon. I appreciate nothing more than coming across a grieving Twitter page showing photos of horrors with a billion entry level producers underneath it clamoring for usage rights like feeding sharks. This happened to you, it sounds like, and luckily you were removed enough from the story that it was no big deal. You might react and go "that's horrible, why would they do that?" but remember when Cathriona White died, and every 'news' organization in the world immediately (and I mean immediately) started calling her family demanding an interview simply on the basis of her relationship with Jim Carrey? I seem to recall someone in her family saying that they heard about her death from a reporter calling and asking for comment from a seven year old. He was pissed about it and good for him, really, and I say that as someone who used to be in a slightly more respectable part of that bloody industry. Twenty four hour news and, later, the Internet did this to us (well, really, we did and these were merely tools to satiate human nature). There is zero regard for "the right time" when interacting with subjects of stories any more by most producers. The right time is now because our readers demand fast content and fuck your feelings. The irony is that Twitter is probably the one platform that is tirelessly working to make a traditional journalist go back to being traditional by eliminating the urgency of reporting and shifting focus back to analysis and context. So it's weird to watch producers work Twitter to basically digest a primary source and be late by definition. Twitter is way better at telling me what's going on now. I want analysis and context from journalists now, but most haven't picked up on that yet. (This is also why Twitter will not eliminate the media, despite what some people say; half of journalism is placing events in context. Some might say half is a conservative estimate.) And that's even before you get into the viral video agencies who snap up rights from people who don't know any better, and I can't decide which is worse. Seriously, what a way to make money; what service do you provide, exactly?