Beware The CopyLEFT Trolls

from the technicalities-exist dept

For years we've covered the problems of copyright trolls -- abusive schemes in which aggressive lawyers and schemers leverage copyright to shake down hundreds or thousands of people over what may be accidental or incidental infringement. In some cases, copyright trolls have gone even further, deliberately seeding their own works in order to find people to demand money from.

But, over the past few years there's been something of a rise in a different kind of troll -- the copyLEFT troll. Law professor Chip Stewart started calling out the issue of copyleft trolls a few months ago and has published an academic paper about the issue as well. At the heart of it, copyleft trolls rely on widespread misunderstandings of Creative Commons in order to shake people down in the same way that copyright trolls do, though in some ways it's even more nefarious.

I was reminded of Stewart's warnings about this -- and my own interest in writing something about it -- recently when there was a semi-viral story involving the popular Twitterer @foone having their Twitter account suspended over what appeared to be a similar kind of copyleft claim. Foone's explanatory thread (after their account was reinstated), noted that they had taken a CC-by-Attribution photo, but had not appended the attribution, leading to a DMCA claim. In the end that didn't seem as bad as some of the trolling situations Stewart describes.

At the heart of all this, though, is the fundamental nature of how Creative Commons works -- and how some people still are confused about it. Creative Commons was always a sort of clever hack of the copyright system, creating new licenses that were a lot more open, but which still relied on copyright as the backbone. The variety of licenses within the Creative Commons space, however, have at times lead to confusion -- especially regarding its non-commercial licenses. Some people have assumed (incorrectly) that Creative Commons licenses are all "non-commercial" and others have disputed what "non-commercial" actually means. To Creative Commons' eternal credit, the organization has spent a lot of time over the last few years trying to better educate the public, lawmakers, courts, and more about the nature of these licenses and how they work.

However, in the end, they are still licenses, and those licenses are still backed by copyright -- which means that if you don't abide by the specifics of the Creative Commons license, you could very much be liable for copyright infringement. Enter the copyleft trolls. They search for those using CC-licensed works, but not following the exact terms of the license, and then resort to the typical copyright troll shakedown game. From Stewart:

The scam works a little like this:

A photographer posts photographs on Flickr or Wikipedia using the “Creative Commons” tag, a signal to internet users that these can typically be reused online without permission as long as they include proper attribution.

The photographer searches the web for uses of their photos, or hires a company such as Copypants or Pixsy to do the search for them, and they ferret out any uses that omit or otherwise mess up the attribution. This is an easy mistake for a less savvy internet user, particularly when the attribution requires full hyperlinks to the original and a hyperlink to the license itself, burdening any ability to use it as a thumbnail. Hits are investigated for potential noncompliance, and demand letters are sent to each user that doesn’t follow the license requirements perfectly.

Conveniently, the photographer claims an older version of the Creative Commons license (2.0, for example), which terminates automatically upon any error by the licensee. The most recent version of the CC license, updated in 2013, allows correction and reinstatement of the license through proper attribution within 30 days of the discovery of the error, but older ones do not. With the CC license terminated and easy reinstatement off the table, users of the photographs are put in a difficult spot – pay the licensing demand of $750 or $1,500 or $3,500, or else.

If the license demand isn’t paid, a copyright infringement lawsuit is quickly filed in federal court. And these lawsuits are filed in bulk. One German photographer, Marco Verch, has filed 41 such lawsuits in a variety of U.S. District Courts in 2019 and 2020 alone. Verch’s lawsuits usually stem from stock photography he savvily generates to meet market demand; he posted several such as “face coverings, test tubes and people wearing masks” on his website at the start of the COVID19 outbreak in 2020. Using an older version of the Creative Commons license that “includes sophisticated attribution requirements that victims claim have led them into a trap,” he sues after the license automatically terminates. A photographer based in Indiana, Larry Philpot, has been labeled a “copyright troll” by a court after pursuing more than 150 infringement lawsuits in the past decade. In 2020, a federal district judge expressed dismay when Philpot testified that he had made “tens of thousands of dollars” licensing a photograph he had taken of Willie Nelson, when the reality was that he was “describing settlements extracted after (he) confronted the infringer for failing to provide attribution per the ‘Creative Commons’ license,” and that Philpot “is more in the business of litigation (or threatening litigation) than selling his product or licensing his photograph to third parties.”

There are many reasons why this is scammy, but the worst of it is that if people are doing searches deliberately for Creative Commons' licensed works, they're actually trying to be good internet citizens and abide by copyright laws, rather than doing what lots of other people do -- and just copying a work willy nilly from an image search. In short, copyleft trolls are using technicalities to prey on people who are actually trying to be good but who might not be sophisticated enough in copyright law to understand the nuances, and to me that's truly nefarious.

As Stewart notes in his paper, this is clearly against the very spirit of Creative Commons:

The point of copyleft was never to replace copyright, nor was it to remove the possibility of programmers and artists from preventing infringement or from profiting from their work. But the copyleft movement also certainly did not intend to encourage or facilitate high-volume litigation by copyright owners who found harmless or innocent infringing uses scattered around the Web. As Creative Commons itself noted after a German court found a photograph under a CC 3.0 Attribution-ShareAlike license to be enforceable, ordering the political party that reposted the photo online without attribution to take it down, one of the goals of Creative Commons is to limit litigation of this sort.

Creative Commons has updated its licenses to include things like a period of time in which such technicalities can be fixed -- which is a useful addition. However, some courts are also increasingly not looking kindly on these copyleft trolls either. As Stewart highlights, for those who can afford to fight these lawsuits (which is rare in copyright cases), at least some courts are saying the use is non-infringing as fair use, though it seems very context specific:

Nevertheless, some courts have been sympathetic to the transformative use argument in cases brought by Philpot for posting photos in a way he alleged violated the terms of Creative Commons licenses. In 2018, the Eastern District of Virginia found fair use for publication of Philpot’s CC 3.0 licensed photographs of Kenny Chesney and Kid Rock in Philpot v. Media Resource Center. The court held that use of these photos on the website of a non-profit company engaging in political advocacy for conservative and Judeo-Christian causes was “transformative” because, rather than being about their musical performances, the secondary use was for “news reporting and commentary on issues of public concern.” Namely, the transformative purpose was identified as “informing citizens about pro-life celebrities and conservative celebrities running for political office,” in part because they changed “the way in which viewers experience the Photographs.” The Chesney photo was used in an online article entitled “8 AList Celebrities That Are Pro-Life,” and the Kid Rock photo in an article “Kid Rock Announces 2018 U.S. Senate Bid.”

The result was not appealed, and some critics panned the court’s fair use finding. But other courts have extended similar consideration to the transformative use argument by people Philpot sued. These typically have come in response to arguments on motions to dismiss or motions for summary judgment, in which judges are considering the plausibility of arguments the parties made early in the case. Courts have been unwilling to dismiss fair use arguments by defendants due to a lack of evidence on the record at the early stages, thus not handing Philpot an easy win, though also not giving defendants an easy out. One case in particular revealed a court seemingly at odds with itself while ruling on dueling motions for summary judgment coming from both parties.

In Philpot v. WOS, Inc., the Western District of Texas was considering the fair use argument raised by a website publishing news and commentary about country music called “Wide Open Country” that used two of Philpot’s photographs, one of Jakob Nelson and another of Kenny Chesney, without proper attribution as required by the Creative Commons license. The website moved for summary judgment, arguing that the use was transformative because its purpose was for “news commentary” about, in the Chesney photo, a story about a man beaten to death after a Chesney concert, and in the Nelson photo, “commentary unrelated to the image’s subject,” as opposed to the original purpose of depicting these artists performing in concert. The court said a reasonable jury could find that these were actually both “reproduced exactly for the same purpose” and thus were “not transformative.” But the court was no more receptive to Philpot’s own motion for summary judgment on the fair use defense. The court said a reasonable jury may also “conclude that the parties used the works with different purposes” after all, because the website “fully copied Philpot’s photos to draw attention to articles that had nothing to do with the photos themselves.” While the court noted that the use may be, at most, “minimally transformative,” it said a reasonable jury could ultimately give that significant weight in the fair use analysis.

Applying Kelly v. Arriba Soft Corp., in which the U.S. Court of Appeals for the Ninth Circuit found transformative use of an image for use in a search engine, the Northern District of California found a similar opening for transformative fair use of one of Philpot’s photos. Alternet, a news website, posted Philpot’s image of Willie Nelson on Facebook with the quote, “Rednecks, hippies, misfits – we’re all the same. Gay or straight? So what? It doesn’t matter to me. We have to be concerned about other people, regardless. I don’t like seeing anyone treated unfairly. It sticks in my craw. I hold on to the values of my childhood.” Alternet argued that adding the quote was an act of political commentary and altered the purpose of Philpot’s original photo, which the court said was at least “possible,” though not enough to support Alternet’s motion to dismiss in the face of Philpot’s argument that the photo was used “merely for the purpose of identifying who the quote came from.”

Either way, we're seeing the same underlying issue here: copyright allows for sketchy efforts to shake people down for money -- even when they use CC-licensed images, if they get something wrong on a technicality. That's not a knock on Creative Commons, which remains a really useful tool, but on the underlying copyright law that required Creative Commons to exist in the first place... and has enabled greedy people to abuse the law in the manner described above.

Filed Under: copyleft trolls, copyright, copyright trolls, license terms, photographers
Companies: creative commons

Opening Up Information In A Pandemic, Rather Than Locking It Down: The Open COVID Pledge Is Important

from the information-sharing-is-the-way-forward dept

People who are actually engaged in real innovation know that the real breakthroughs and advancements don't come from solitary geniuses having a eureka moment, but from the open sharing of information to bring in a variety of perspectives and to build upon the work of others. And yet, for years, some have drilled the myth of the lone inventor into people's minds, along with the idea that we need to lock up ideas and knowledge to give those inventors "incentive." Yet, if the true advancements come from people sharing and building on each other's ideas, this is the exact wrong approach. Now in the midst of a massive global pandemic we're seeing the ridiculous outcome of people trying to abuse or expand exclusivities -- which most actual innovators know will hinder, rather than help.

So it's exciting to see many pushing for a very different approach. A bunch of smart innovators, organizations, and academics have put together the Open COVID Pledge, in which they all agree to share whatever information and technologies they have that might otherwise be locked down, free of charge, for the purpose of ending the pandemic:

Immediate action is required to halt the COVID-19 Pandemic and treat those it has affected. It is a practical and moral imperative that every tool we have at our disposal be applied to develop and deploy technologies on a massive scale without impediment.

We therefore pledge to make our intellectual property available free of charge for use in ending the COVID-19 pandemic and minimizing the impact of the disease.

We will implement this pledge through a license that details the terms and conditions under which our intellectual property is made available.

I'm happy that this is being done, but honestly am a bit disappointed in how few organizations have signed up. Among companies the biggest is Intel, which is good to see, as that company can be a bit overly aggressive in patent enforcement at times. Mozilla and Creative Commons are there -- which isn't too surprising. There are a bunch of universities -- but mainly the law school parts of the universities, rather than say, the science and engineering parts.

Hopefully more companies and universities (including science and engineering departments) will start to sign up for this. The middle of a pandemic is no time to be fighting over who gets to own what tiny piece of the solution.

Filed Under: covid-19, information sharing, innovation, open covid pledge, patents
Companies: creative commons, intel, mozilla

The Curious Case Of The Bogus CC License On A 3D Scan Of A 3000-Year-Old Bust Of Nefertiti

from the once-public-domain,-always-public-domain dept

Techdirt has written a number of stories about museums and art galleries claiming copyright on images of public domain works. That's really not on for institutions that are supposedly dedicated to spreading appreciation of the masterpieces they hold. The latest example of this unfortunate habit is a complex and fascinating tale involving the famous bust of Nefertiti, found a century ago, currently displayed in Berlin's Staatliche Museen.

A rather improbable story that people had managed surreptitiously to scan the bust at high resolution piqued the interest of the artist Cosmo Wenman. It seemed likely that the 3D scan files involved had been produced by the museum itself, so Wenman decided to use German freedom of information laws to request them officially. As his long and fascinating post on the 3D Nefertiti saga explains, the German museum was singularly unhelpful:

it acknowledged the existence of the Nefertiti scan and acknowledged that the organization was required by law to give me access to it. But it also declared that directly giving me copies of the scan data would threaten its commercial interests. The Egyptian Museum sells expensive Nefertiti replicas in its gift shop, and it implied that it needs to protect that revenue to finance its ongoing digitization efforts.

In museum-world parlance, this argument against open access is known as "the gift shop defense."

In the end, it turned out that the money generated by using the scans to make replicas was pretty minimal. Reflecting the weakness of "the gift shop defense", the museum sent Wenman a copy of the scans, but with a twist:

To mark their territory, [the German body overseeing museums] had inartfully carved a copyright claim directly into the flat underside of the 3D model. And without explanation, it had included a Creative Commons "CC BY-NC-SA" license.

A good analysis of the situation by Michael Weinberg points out why this is bogus:

Creative Commons licenses are copyright licenses. That means that if you violate the terms of the license, you may be liable for copyright infringement. It also means that if the file being licensed is not protected by copyright, nothing happens if you violate the license. If there is not a copyright protecting the scan a user does not need permission from a 'rightsholder' to use it because that rightsholder does not exist.

The central issue is whether a high-resolution 3D scan of an object unequivocally in the public domain, is also in the public domain. An earlier article by Weinberg explains that in the US it seems clear that producing an accurate scan of a public domain object is also in the public domain. It's slightly less clear-cut in the EU, but even there 3D scans are unlikely to be protected. Moreover, one of the few good things in the generally awful EU Copyright Directive is explicit confirmation that material resulting from reproducing art that is in the public domain is also in the public domain, "unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation". An accurate 3D scan does not fall into that category -- something that EU Member States could and should make clear when they implement the Copyright Directive in their national legislation. Weinberg also raises the issue of "moral rights" -- things like a right of attribution and a right of integrity:

While removing attribution or intentionally modifying the work to remove the fake [CC] license might create problems if the Staatliche Museen was the 'creator of the work' for copyright purposes, that is not the case here. The Staatliche Museen did not create any work that is recognized under US (and soon EU) copyright law. That means that there is nothing for the moral rights to attach to.

A post on the Creative Commons blog points out the use of bogus CC licenses causes collateral damage beyond simply misleading people about what they can and cannot do with material that is in the public domain:

Creative Commons licenses are tools to allow users to better understand what permissions are being granted to the public by the creator of the original work. When a CC license is misapplied, the ability of CC licenses to be a standard signal for communicating copyright permissions is undermined. Mislabelling works creates confusion among re-users of works and limits the rights of the public to benefit from the global commons.

It is doubly reprehensible that supposed guardians of culture should not only be asserting intellectual monopoly rights they don't have over materials in their collections, but that they should be undermining one of the most important tools available for promoting the sharing of culture -- the carefully-calibrated range of Creative Commons licenses.

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Filed Under: 3d scans, cc licenses, copyfraud, copyright, cosmo weman, creative commons, foia, museums, neferiti, public domain
Companies: creative commons, staatliche museen, the egyptian museum

Sites Warn EU Users Of Just How Bad Article 13 Will Be

from the speak-up dept

As we mentioned, a bunch of websites started protesting yesterday in the lead up to next week's vote on Article 11 and Article 13 that will fundamentally change the nature of the internet. The main ones were various European Wikipedia editions, which completely blacked out and posted a warning message. Here's the one in Germany (with automatic browser translation -- the original, obviously, is in German):

Different sites are doing different things -- and for some it depends on whether you're visiting from the EU or not, but it's good to see so many sites coming together on this. Reddit, as explained in a blog post on its site, are telling any EU Redditor who tries to post something new that it's blocked:

Lots of others have stepped up as well. The ever popular online streaming site Twitch is warning people in a variety of ways, including creating a video about its concerns:

And has also put the message all over its social media:

Patreon, the very popular website for helping creators get paid has warned its creators that under Article 13, it may need to block their content:

Others who have spoken up include Creative Commons and the Internet Archive:

Another site that joined in -- which we'll refrain from screenshotting -- is the most popular porn site on the internet, Pornhub.

Between all of this, the question now remains: will the EU Parliament ignore all of these voices? Ignore all of the over 5 million people who signed a Petition against Article 13? Will it ignore all the companies who have said that Article 13 will put them at a disadvantage compared to Google? Will it ignore of the content creators who rely on platforms like Twitch and Patreon?

Filed Under: #saveyourinternet, article 11, article 13, censorship, copyright, eu, eu copyright directive, filters, intermediary liability
Companies: creative commons, internet archive, patreon, reddit, twitch, wikipedia

Creative Commons Continues To Try To Help Courts Understand What Its NonCommercial License Means

from the important-stuff dept

Over the years we've expressed some concerns about the NonCommercial license option from Creative Commons. Even as we're incredibly supportive of CC, the NonCommercial license often seemed to raise more questions than answers -- to the point that some have argued that it actually harmed CC's brand and resulted in significant confusion for how CC licenses work. There have even been suggestions that CC should drop the NC license option altogether.

To its immense credit, people at Creative Commons have appeared to take these concerns quite seriously over the past few years, doing quite a bit of work to try to clarify what NonCommercial means for the purpose of the license. Our specific concern is that NonCommercial could mean all different things to different people. If you're using a NonCommercial CC-licensed image on a personal blog and you have ads on that blog (even if you don't make much money from it) is that non commercial? If you use it in a tweet and your Twitter bio promotes your business is that non commercial?

Two years ago we wrote about Creative Commons stepping in to file an amicus brief in a case that raised some specific issues concerning a NonCommercial license. An educational non-profit, Great Minds, sued FedEx over FedEx Office shops photocopying some Great Minds works for educational entities, even though the works were licensed under CC's BY-NC-SA 4.0 license. Great Minds argued that because FedEx made money from copying, it's "commercial" and thus in violation of the license. Creative Commons stepped into that lawsuit and explicitly stated that Great Minds interpretation was wrong.

In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds' interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were "actively soliciting" schools to copy Great Minds' works). The court didn't buy it.

That case has now been appealed to the 9th Circuit (who, as we've noted all too frequently, mucks up copyright cases). And Creative Commons is back again asking the court if it can file an amicus brief again. This seems like the perfect situation for an amicus brief, given that Creative Commons certainly should understand its licenses the best. The proposed brief is well worth a read.

Creative Commons appreciates the valuable contributions to the development of open educational resources made by Great Minds, along with its use of a standard CC public license to enable broad reuse of the materials it produces. However, its interpretation of the Creative Commons license at issue in this lawsuit is incorrect. As the U.S. Court of Appeals for the Second Circuit correctly determined in Great Minds’ prior suit against another copy shop, FedEx Office, the license authorizes a bona fide non-commercial user to discharge her licensed rights by directing a third party like Office Depot to make copies at her instruction. Creative Commons welcomes and respectfully seeks a similar holding from this Court:

Under the Creative Commons “NonCommercial” license at issue, a bona fide non-commercial user may engage contractors to exercise the non-commercial user’s own licensed rights on behalf and at the direction of the noncommercial user, irrespective of whether the contractor is itself non-commercial actor.

Going into details, CC explains how Great Minds is completely misinterpreting its NC license term:

The CC BY-NC-SA 4.0 license fully authorizes the conduct that Great Minds contends on appeal is unlawful. The only licensee here is the school district. Under the terms of the license and prevailing principles of law, a school district may permissibly use Office Depot as a means by which the school district exercises its own licensed rights. The license does not restrict the school district to using only its own employees to exercise those rights; it allows the school district to engage anyone—employees and non-employee contractors alike—to do so. To establish a rule that denies a licensee the ability to use non-employee actors to exercise the rights it is lawfully entitled to exercise would contravene the plain language of the license and established precedent.

To be sure, Office Depot could not on its own initiative make copies of Great Minds’ curricular materials and sell them for a profit. In that scenario, Office Depot would not be acting at the direction of a bona fide licensee, would not be shielded by any bona fide licensee’s license, and thus would itself need to rely on the terms and conditions of the CC BY-NC-SA 4.0—including limiting its conduct to non-commercial purposes when reproducing the licensed work. But that is not what is alleged here. Instead, on the facts as pleaded, the school district has, under its license from Great Minds, engaged Office Depot to make copies and paid Office Depot for the service, just as it could have paid an employee to make the same copies at an Office Depot store. In that scenario, Office Depot is not a licensee in its own right, and its own, independent purpose is analytically irrelevant.

Hopefully the 9th Circuit follows the lead of the 2nd and agrees that Great Minds is misreading the NC part of the license. This would go a long way towards further establishing that NC licenses aren't so limiting.

Filed Under: copying, copyright, creative commons, licenses, nc, noncommercial
Companies: creative commons, fedex, great minds, office depot

Creative Commons Is Resurrecting Palmyra

from the saving-history dept

Creative Commons launched its 2017 Global Summit today with a rather moving surprise: a seven-foot-tall 3D printed replica of the Tetrapylon from Palmyra, Syria. For those who don't know the tragic situation, Palmyra is one of the most historic cities in the world — but it is being steadily destroyed by ISIS, robbing the world of countless irreplaceable artifacts and murdering those who have tried to protect them (the folks at Extra History have a pair of good summary videos discussing the history and the current situation in the city).

Among ISIS's human targets was Bassel Khartabil, who launched Syria's CC community several years ago and began a project to take 3D scans of the city, which CC has been gathering and releasing under a CC0 Public Domain license. He was captured and imprisoned, and for the past five years his whereabouts and status have been unknown. As the #FreeBassel campaign continues, Creative Commons is now working to bring his invaluable scans to life in the form of 3D-printed replicas, starting with today's unveiling of the Tetrapylon — which was destroyed in January along with part of a Roman theatre after ISIS captured the city for a second time.

This isn't the only such project — the Institute of Digital Archaeology and UNESCO unveiled a replica of part of the Temple of Bel in London last year — and these combined efforts are a critical bulwark between ISIS and its goal of eliminating this part of our shared cultural history. You can read more about CC's project — including status updates on the other artifacts, monuments and architecture that they are reproducing — on the #newpalmyra website (at the time of writing it still lists the Tetrapylon as "coming soon", though that will likely change shortly).

Much of this weekend's summit is likely to revolve around the ongoing tension between open culture and intellectual property regimes, but I can't think of a better way to kick things off than with something that even the staunchest copyright maximalist can surely agree with: that the treasures of this 2,000-year-old city belong to us all, their destruction is a travesty, and the ability to preserve them even in some small way is a triumph of technology and the cultural commons.

Filed Under: creative commons, culture, isis, open culture, palmyra, preserving history
Companies: creative commons

Important Ruling On Perennially-Problematic Creative Commons Non-Commercial License

from the NC-stands-for-'not-clear' dept

Techdirt has been warning about the problems with the Creative Commons Non-Commercial License (CC NC) for many, many years. Last September, Mike wrote about an important case involving the CC NC license, brought by Great Minds, an educational non-profit organization, against FedEx, the shipping giant. Copy shops owned by FedEx photocopied some of Great Minds' works on behalf of school districts. The material had been released by Great Minds under a CC BY-NC-SA 4.0 license -- that is, the Attribution-NonCommercial-ShareAlike license. The issue was whether a company like Fedex could make copies on behalf of a non-commercial organization, of material released under a license that stipulated non-commercial use. Happily, the judge in the case has ruled that it can (pdf):

At issue on this motion to dismiss is whether the allegations that FedEx has copied the Materials at the behest of one or more school districts and charged the school districts for that copying at a rate more than FedEx's cost states a claim for violation of GM's copyright. There is no claim that the undisclosed school districts are using the Materials for other than a "non-Commercial purpose" or that FedEx has copied the Materials for any other entities or for its own purposes. As so framed, FedEx's copying of the Materials is permitted by unambiguous terms of the License and the motion to dismiss is granted.

That's a sensible result: FedEx was simply an intermediary making copies on behalf of a non-profit organization, even if FedEx extracted normal profits in the course of doing so. But it's also important, because if the judge had found against FedEx, the wider consequences for the CC-NC license would have been disastrous. A few were spelled out in the August 2016 letter from Creative Commons Corporation's lawyers (pdf) seeking permission to file an amicus brief:

a CC BY-NC-SA 4.0 license would be of decidedly limited value if the licensor could invariably sue any for-profit intermediary engaged by the end user in the course of carrying out the ultimately permitted use. And the results would be absurd. Under the plaintiff's interpretation, school districts could not engage a parcel service to send copies of the licensed works to schools; could not use an internet service provider to host the works online for use in the classroom; or, more unworkable still, could not even email a digital file through a commercial network for receipt by students and educators

Although everything turned out fine in this case, it's worth noting that the problem was caused -- yet again -- by the ambiguous nature of the CC-NC license. Moreover, we are quite likely to see yet more court cases as a result of the lack of clarity around the definition of non-commercial use. It's hard not to feel that this particular Creative Commons license is more trouble than it's worth.

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Filed Under: copy shop, copying, non-commercial
Companies: creative commons, fedex, great minds

The Met Goes Public Domain With CC0, But It Shouldn't Have To

from the unfortunate-necessities dept

The ongoing digitization of the vast wealth of material sitting in museums and archives around the world is one of the greatest projects of the digital age — a full realization of the internet's ability to spread knowledge and culture to all. Or it would be, if it weren't for copyfraud: for every museum genuinely embracing open content and the public domain, there's another claiming copyright on public domain images and being backed up by terrible court rulings.

And so it's fantastic to see The Metropolitan Museum of Art joining the former camp with a new Open Access policy that is putting images of 375,000 works online with a CC0 public domain declaration. The Met actually partnered with Creative Commons, Wikimedia, Pinterest and others to help make this happen, and has even announced its first Wikimedian-in-residence who will head up the project to get these images into Wikimedia Commons and onto Wikipedia.

This is all great, but here's the annoying thing: it should be totally unnecessary. These are digitizations of public domain works, and there's no reasonable basis for granting them any copyright protection that would need to be divested with a CC0 mark in the first place. They are not creative transformative works, and in fact they are the opposite: attempts to capture the original as faithfully and accurately as possible, with no detectable changes in the transfer from one medium to another. It might take a lot of work, but sweat of the brow does not establish copyright, and allowing such images to be re-copyrighted (in some cases hundreds or even thousands of years after their original creation) would be pointless and disastrous.

Instead of the CC0 mark, the Met should be able to use a lesser-known Creative Commons tool: the Public Domain Mark, which indicates that something you are sharing is already in the public domain (whereas CC0 declares that you have rights in it, but are relinquishing them and releasing it to the public domain). And while the Met probably could have done so (and likely discussed this with CC since they were partners in this project), it's understandable why they decided not to: the statutory public domain is so damn weak and vulnerable that it can't be trusted, and a CC0 license is actually a much stronger way of ensuring nobody tries to exert control over these works in the future.

As Creative Commons points out on their information page for the Public Domain Mark, they don't recommend it for works where there is any doubt, in any jurisdiction, that they are in the public domain — a category that is virtually empty when all factors are considered. Though efforts to establish copyright on digitizations of PD works have mostly failed in the US, they have gained ground in Germany and the UK among other places. And attacks on the public domain are creative and frequent in the US too. Though it's somewhat hard to envision how another party could swoop in to attempt to take copyright control of the Met's digitizations, there would also be the possibility of the museum changing its stance in the future — and any such uncertainty creates a chilling effect where everyone who wants to make use of the images has to think twice. The CC0 mark is the strongest available statement that something is in the public domain.

Sadly, even CC0 is not completely waterproof, and it's a problem in the first place that the only way to release something into the public domain in most jurisdictions is via a third party's special licensing tools, not an official legal mechanism under copyright law. That's how you end up with a museum needing to partner with international copyright experts just to be able to make it absolutely clear that they don't own any rights to an unknown copyist's 100-year-old painting of a 4000-year-old Egyptian relief, which frankly should have been obvious. Kudos to the Met for doing everything it possibly could in a world that sometimes seems determined to snuff out as much of the public domain as it can.

Filed Under: cc0, creative commons, public domain
Companies: creative commons, metropolitan museum of art

Photographer Loses Copyright Infringement Lawsuit Against Mapmaker That Used His Photo With His Explicit Permission

from the but-I-didn't-think-anyone-would-do-the-thing-I-told-them-they-could-do! dept

A far-too-common story of alleged copyright infringement by a corporation comes to an unexpected resolution. Photographer Art Dragulis took a photo of a rather rustic Maryland scene and uploaded it to Flickr. (from the filing)

Roughly four years later, he discovered Kappa Map Group was using his photo for the cover of its Montgomery County atlas, unbeknownst to him, and as such, also unrecompensed.


Lawsuit-filing ensued. Dragulis claimed Kappa Map Group had no right to use his photo commericially. Seems an almost open-and-shut case, what with any number of entities deciding "anything showing up in a Google image search" = "royalty-free stock photography." And in most cases, this would have been rather straightforward if the photographer himself hadn't undermined his infringement claims years before he ever raised them.

As the opinion notes, any copyright protections Dragulis might have enjoyed were explicitly waived by his choice of licensing back in 2008.

Plaintiff alleges that defendant infringed his copyright in the photograph because it “copied Plaintiff’s work and made derivatives of the work without Plaintiff’s authorization in violation of 17 U.S.C. § 501.” Id. ¶ 22. But plaintiff uploaded the photograph to a public photo-sharing website, where he did not assert exclusive rights to his copyrighted image, and he instead opted to license the work and make it available for use by others without compensation.

Dragulis chose to license this picture under Creative Commons BY-SA-2.0, which allows commercial use of the photo in exchange for attribution. As Kappa pointed out in its initial response to Dragulis' filing, it followed the terms of the license explicitly.

Kappa used the image in the Kappa Map in good faith based upon the representations that the image was licensed for use in commercial applications. On the back cover of the map, Kappa provided the “Attribution” and “ShareAlike” data for the Work dictated by the CC BY-SA-2.0 license: “Photo: Swain’s Lock, Montgomery Co., MD; Photographer: Carly Lesser & Art Drauglis, Creative Commons, CC-BY-SA-2.0.”

So, everything was exactly what Dragulis wanted, except that he apparently never expected a commercial company to take him up on his CC offer. When one did, it was time to sue. The final opinion notes that Dragulis seems upset with what happened but can't really blame anyone but himself for the outcome.

Plaintiff repeatedly voices consternation in his pleadings about defendant’s distribution of the publication that displayed his work on its cover for profit, but of the many licenses available to choose from, plaintiff selected the one that specifically authorized commercial use. So the only issue before the Court in Count I is whether defendant – which gave plaintiff full credit for the work it displayed on the cover of its publication – complied with the technical terms of the license under which plaintiff published the work. The Court finds that it did.

Dragulis heads a little further into the weeds with his arguments, claiming that the "share-alike" portion of the CC license demanded Kappa Map Groups offer its atlas under similar terms -- i.e., for free and with a similar license attached. The court finds this unpersuasive, pointing out the CC license terminology Dragulis invoked only refers to "derivative works," which KGM's atlas isn't. Instead, the court finds the atlas to be a "collective work," one that incorporates the photo "in its entirety in unmodified form."

Dragulis loses on all counts, even with the court entertaining his very belatedly-raised argument that the minimal cropping of his original photo by Kappa somehow made the use of his photo a "derivative work."

If there's a moral to this legal incident, it's this: know the terms of your licensing before you agree to use it. If you want to use a more altruistic licensing form like those offered by Creative Commons, by all means, do so. But don't act like a commercial entity owes you something for complying with the terms you expressly agreed to. Licensor's remorse isn't a legally-recognized tort.

Filed Under: art dragulis, copyright, licenses, photographs, share alike
Companies: creative commons, flickr, kappa map group

What If There Was A Music Collection Society That Actually Understood That Free Isn't Always Bad?

from the well,-here's-a-shot dept

In the US we have three main music collection societies for performance rights (ASCAP, BMI and SESAC), and then SoundExchange for satellite/online streaming. However, many other countries just have a single collection society, with somewhat monopolistic tendencies. There have been efforts (mostly failed) to create more competition in Europe, mainly by encouraging the organizations to leave their local country and work across Europe. There have been precious few new entrants, however. At least one group is trying to change that -- and they're doing so by embracing the internet and the concepts of free culture. C3S, or the Cultural Commons Collecting Society is trying to enter the market in Europe in a much more culture-friendly manner:

C3S is a collaborative effort to found a new and ground-breaking European collecting society for musical creators to register their works outside of traditional schemes, released under free licences for commercial exploitation. More than just for works published under Creative Commons Licences, C3S is open for other free licences as well.

The new operation wants to encourage free distribution for non-commercial use, and a much more reasonable (and appealing) deal for both musicians and consumers. Just the fact that the organization has to make it clear that members are encouraged to make use of free licensing is an amazing step forward. Compare that to organizations like GEMA that have tried refusing to recognize Creative Commons licenses, and operations like ASCAP, who insist that Creative Commons is threat to musicians, rather than a useful tool. Who knows if C3S will go anywhere, but it's nice to see that it's at least being tried.

Filed Under: collection society, cs3, europe
Companies: ascap, bmi, creative commons, gema, sesac