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Sunday, January 06, 2008

Gaming the Creative Commons for Profit

Well, the emails keep piling up regarding my last two postings about the Creative Commons here and here, as do the links people forward me to stories and whatnot. Though you may be thinking, "enough already!", I only wish I'd started with this one.

I begin with an eye-opening email I got from an in-house attorney for a large company that is currently in settlement talks with a photographer who is suing them for copyright infringement. He didn't give me explicit details, and requested I keep his name withheld, but the shocker is just how bad the CC has become.

First, an excerpt from the lawyer's email:
Your blog postings are right on target, and you've lead everyone up to the finale, but you just didn't finish. Put the pieces together now, and you'll see how this who CC thing can be used as a form of entrapment. We are in a serious pickle, and we can't find any legal way out of it that doesn't cost an arm and a leg... other than paying the guy off.

To explain how this company got into its mess, let's start with this common question: What do you do when someone uses your CC-licensed image, but fails to give attribution (or other CC provisions that you assigned to the photo)?

If you're like most people, you complain--bitterly--and probably post a few things on forums and send email to your friends. (And me.)

But, if you know something about copyright law, and you set things up just right beforehand, you can do more. A lot more. And the reason you may not have thought of some of these things is due to a few common (gross) misunderstanding about what copyright is, and what the Creative Commons is, and where the cracks are in the system. So, let's start there:

Some people think that CC replaces copyright. It doesn't. Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the "authors of original works of authorship." Creative Commons is a license agreement, which stipulates terms of use for your copyrighted work. Or, as the FAQ from the creativecommons.org website says, "Creative Commons licenses give you the ability to dictate how others may exercise your copyright rights."

Copyright and CC work together. You can't assign a CC to a work that isn't yours; it would be considered invalid (and an act of fraud). My previous posts on the subject focused only on this aspect, which was short-sighted on my part, not because it wasn't true, but because it missed the much larger risk that licensees bear. I suggested that CC puts licensees at risk because of this unintended sequence of events by innocent bystanders who had no idea what was going on. But something even more unscrupulous and sinister has already been thought of, at least by one person: entrapping a company into infringement by luring them in with the CC-licensing.

To explain how this would be done, I'll ask my earlier question again: "Someone uses your CC-licensed photo without giving attribution. What do you do?" But now, let me ask, "What could you do?"

Well, you could sue them, but then you'd have to have grounds for the suit... so let's look at that.

This part's pretty easy: If someone uses a photo in any manner inconsistent with the terms of its license (including a CC license), they are subject to copyright infringement. And the statutory damages for photos registered with the Copyright Office range from $750 to $30,000 (including attorney costs). What's more, if you placed a visible watermark on your photos, such as your name or, better yet, your website (if you have one), this gives you extra protection against copyright violation in this way: If the illegal use was shown to have been willful, such as the removal of visible copyright text, then additional damages go up to $150,000. The fact that your photo was available for free is irrelevant.

Sounds good, right? Well, there's a hook: it only applies to photos that have been registered with the copyright office. If you don't register your works with the copyright office, which is almost guaranteed to be the case for consumers who put their photos on Flickr at the blink of an eye, infringement claims are not statutory; they are limited to how much your license fee would have been for the alleged misuse. And that licensee fee for CC-licensed images is zero. (That huge boom sound you just heard is that of thousands of palms slapping against the forehands of many Flickr users who thought they were sitting on gold mines.)

So, all you Flickr users that had your CC-licensed images used without attribution are stuck with no recourse whatsoever. None. You can't sue someone for zero dollars, unless you're rich and stupid. Not even the EFF will help you. (Nor would the Creative Commons for that matter.)

By extension, publishers who use CC images have neither risk nor incentive to comply with the terms of the CC. Essentially, CC has virtually no enforceability whatsoever (in the photo realm, at least). It is an empty shell.

Or, is it empty? Might it actually be that it has lots of teeth, but they can only be used by the bad guys?

Excuse me?

Remember that "hook" I mentioned, that your photos have to be registered with the copyright office to qualify for statutory damages? The thing is, people who choose CC-licensing do so for altruistic purposes and are unlikely to go through the time, effort and expense of registering photos with the copyright office.

But what about those non-altruistic people? You know, those who wish to game the system and make big money? Yup, them. (That bright light you see is the collective set of light bulbs that just lit up over many people's heads.)

This technique isn't new--I've written about the incredibly lucrative business of suing for copyright infringement in this article and a follow-up in this article. But it wasn't till now that I was made aware that CC-licensing is the perfect bait to trap people. I am aware of at least one microstock company that lures buyers by offering $1 photos, only to sue them later for infringement ... usually a minor one. But using CC-licensing to meet the same ends is truly ingenious (in an evil way, of course).

But wait, there's one more piece to it that makes the entire scheme virtually guaranteed to work, even if the user of the image did nothing wrong. And that is based on yet another aspect of the CC that is grossly misunderstood by .... well, everyone: the ability to revoke the CC-licensing on images.

The general (erroneous) belief is that once you assign a photo a CC-license, it is permanent--that you cannot revoke the CC. Well, that's not precisely true. To explain, let's start with what's on the FAQ on the Creative Commons website:
Creative Commons licenses are non-revocable. This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license.

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

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

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

So now, the company has the burden of proving that the image was available under the CC license at the time they got it. How do they do this? Well, they could try looking at web archives (such as www.archive.org/), but archiving sites like this don't (can't) archive sites like Flickr. As you can see, it'll be very, very tough to prove that the photo was ever CC-licensed.

It should be noted here that Augustine Fou had created a site called FlickrCash.com, which did precisely this: the registrant received a formal registration for having obtained a CC-licensed image from Flickr at a particular time. This would be precisely what the doctor ordered to protect against the scheme I'm describing here. However, because he charged $5 for the service, Flickr users got really upset, claimed that he was infringing on their copyrights (he wasn't), and succeeded in convincing Flickr to shut him down.

This ability to revoke is so powerful, and the requirement for the defense so onerous, that just about anyone can file an infringement claim against anyone using a CC-licensed image, simply by revoking the CC-license just before filing the claim.

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

The only fish that don't get shot are those who honestly obtained the CC image, verified who owned it, complied with its terms, and kept records through all of this. Gee, that's a lot of work for a company that wanted to save a few bucks and use a photo for free instead of, say, $1 or even $10.

So, what's the net-net, as it were? The Creative Commons just doesn't fit in the photo world. It has no teeth for well-intentioned photographers that just wanted to make their photos available for free, but it has wonderfully sharp and dangerous teeth for those who want to abuse the system and entrap anyone into paying big settlements.

I think the discussion of whether CC is good or bad for photographers is simply a misguided distraction from the real issues. I do believe that all of this bodes very well for professionals, because it supports the notion that people should get licenses from trusted sources (where records of such transactions are made), even if those sources choose to provide them for free.

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