Photography and Public Domain: Part 2
In part one of this two-part series, I discussed how the term, "Public Domain" is finding its way into the mainstream press. But the topic is a bit obtuse, and press coverage is frequently biased and misinformed.
One of the unintended consequences of this is an erosion of people's general understanding of Public Domain, and by extension, copyright itself. This has had important ramifications on economic and legal events affecting all industries related to intellectual property. It might seem like a stretch to connect the dots in such a dramatic way; this article walks through those connections, beginning with an overview of how the public behaves today, and ending with proposed solutions to the problem.
As will be illustrated by examples and reports below, the vernacular use of the term "Public Domain" has become synonymous with "publicly available." Most people think that if they can copy stuff from the internet in an unfettered fashion, there's an implicit "grant of use" permitted by the author. This, unlike music files, which most people know as being illegal to download without payment, even though some do it anyway. The perception of photos is perceived quite differently; most are surprised to learn that images carry the exact same copyright restrictions and protections as music does. After all, how can a snapshot taken by an infant while he dunked his father's expensive digital camera into the fish tank have the same legal protection as a newly released song by The Rolling Stones?
Oddly enough, they have identical protections in the eyes of basic copyright law. Of course, few people know this. In fact, most believe that unless expressly stated otherwise, photos found on the net are free to use in any manner one chooses. An example of this is reflected in this New York Times article called, Flickr as an Interior Decorating Tool. Here, the author discussed how she likes to go to Flickr and print out her favorite photos to decorate her walls. (Hint: this is technically a form of copyright infringement.) The author's act is more than just reflective of the general public's misunderstanding of how copyright applies to photography, but the article perpetuates these misgivings and helps further establish its acceptability--the social norm.
A UK study further illustrates this through empirical research, drawing the same conclusions. This study became itself a topic in the blog, Plagiarism Today, which concluded that if copyright is to be better understood, "it needs to be built on the back of a robust understanding of common law."
That conclusion, however, misses an important and critical truism about societal behaviors: people don't comply with most civil laws because they are aware of them or even understand them. They comply because compliance is often "built into the system" by default. There are a variety of mechanisms built into day-to-day life that make legal behaviors not only easy, but second-nature, which are reinforced by social and economic "reminders."
A current example of this can be found in how people deal with online music. When Napster was first introduced, people infringed on music universally, all but ignoring cries of foul by the recording industry. When the RIAA started suing individuals for downloading music, people's behaviors didn't change; instead, they viewed the music industry with disdain.
It was only when music labels decided a different tack did people's behaviors begin to change: the companies cooperated with device makers to create simple, convenient and automated mechanisms for users to purchase and play music seamlessly and instantly. This was the first event that slowed the upward trend of music piracy, and an increased the revenue generated from online music sales.
The lesson is that copyright compliance it's not about cost, and it's not about legal awareness or education (or even ethics). For consumers, it's about convenience. Once this lesson was learned, the next experiment took place: the removal of copyright protection schemes on songs, allowing people to use their existing purchases on other devices they own. By further assisting users in enhancing the "music ownership experience," the music companies were rewarded by another increase in purchasing trends.
It's very true that law plays a pivotal role here, but it's the larger companies that were driven more by the threats from one another that stimulated the development of those mechanisms that promoted copyright compliance by the masses.
What does any of this have to do with Public Domain? Well, people steal (even inadvertently) when the system doesn't provide mechanisms for easy compliance. The perception that most photography is in the Public Domain is largely because there are no industries--and therefore, no mechanisms--available to the general public of consumers to comply with photo copyrights. With no infrastructure, there's no economy.
At least, not legitimate economy. The reality is that photography is protected, and it does have value, and infringements are lucrative. If no one's there to claim any of these benefits legitimately, it seeds the ground for bad actors to come in.
The Dots that Lead to Trouble: Corporate Infringement
Though the music and movie industry still suffers from stolen works, the proportion of images that are "stolen" (to those that are legitimately licensed) is significantly higher, and is on an upward trend. This, even though the copyright protections for music and photos are identical. But what makes this significantly worse is that, unlike music that's stolen by individuals, photos are stolen by corporations. This type of infringement is a double-whammy because corporate licensing of photos on a per-unit basis can be in the hundreds to the thousands of dollars (compared to a $.99 song); and because the infringement claims against a company can be in the tens of thousands of dollars.
When no one but malicious players are aware of this, trouble is around the corner.
The dots that lead up to all this begins with the fact that photo copyrights are owned by individuals, not a small cooperative of large companies that can collaborate on industry-wide practices (i.e., music) and can exert pressure to preserve copyright compliance. Individuals have legal leverage only in protecting themselves, which they rarely do because of their own misunderstanding of copyright and of Public Domain.
Next is the perceived value of photos: most consumers use them for utilitarian purposes (socializing, personal photo albums, documenting inventory, etc.), and photos are taken by any idiot with a camera, not just professionals, like musicians are with music.
The combined lack of perceived value and lack of preventative action then leads to the application of this understanding from one's personal life to one's professional life. That is, consumers also work at companies, and their behaviors at home translate to their job duties. If they use other people's photos (and allow others to use theirs) in their personal life, they behave similarly when using photos in the documents they produce at work.
By comparison, there are few if any copyright infringement cases against corporate use of music. Obviously. Everyone knows music cannot be used in commercial ways without seeking permission from the record label. You never hear of a low-paid intern downloading a song and embedding it in a car ad that's broadcast on network television. Even a consumer that illegally downloads songs from the internet knows better than to do that.
The same cannot be said of photography--studies consistently show that 5-6% of photos sold by stock photo agencies are infringed upon by corporations for ads in high-profile magazine, newspapers and the web. Since stock photo agencies (who do go after infringers) represent only about 15% of all licensed images, one can assume that the ratio of photos stolen from non-professionals is much higher, if only for the fact that most online photos have no preventative measures to stop infringements like stock agencies have.
Even when stock agencies sue, it's not educating society with massively sweeping information campaigns. By and large, people still infringe photos because it is, at worst, considered a cultural faux pas--a social misdemeanor. Akin to wearing white after Labor Day.
A recent story highlighting this involved a Missouri family whose photo became a billboard ad in the Czech Republic. The family learned about the use of their picture only because of a random coincidence -- a college friend in the Czech Republic happened to see the sign. What makes this story so revealing is that it illustrates just how unusual it is that the family found out.
While it's a nice, gentle piece that ran in the "lifestyle" section of newspapers (because no one filed a copyright infringement claim, or sued for violating publicity laws), this might not have been treated so lightly had it been a stolen song. It'd have been in the business section, and more serious analysts would have been doing math to figure out what the impact might be on record industry. The mild news coverage of the stolen photo had a subtle effect on perpetuating the general perception that there's no serious harm done in using someone's photos found from the net.
The last dot in the sequence is the one that completes the picture: enter the con artist. It doesn't take a genius to connect the dots to see that all such copyright violations really are eligible for hefty damage awards, and no one's there to claim them. Because most people don't think there's value in their photos, and the fact that there are billions of photos on the internet, thieves can causally peruse the web in search of photos, and users of photos. Given that the infringement rates are so high, and given that both users and publishers of photos are so poorly aware of copyright, the cherries are ripe for picking.
Crafting a solution to the problem is not just a matter of erasing the dots, nor applying the law better, or making people more aware or educated. It's about instituting mechanisms that allow the free market to provide methods and incentives for people to participate in the system, both as buyers and sellers of this highly under-monetized (and overly exploited) copyrightable work.
In the Beginning...
We begin with the basics. The Berne Convention for the Protection of Literary and Artistic Works states that a work is automatically copyrighted the moment it is produced in a fixed and tangible form. For photography, it means that, the moment the shutter button is released, the photographer automatically becomes the copyright holder. No other action is required--no registration, nothing.
Some people are aware of "copyright registration", but erroneously believe that such registration is required to get protection. It's not. Registration does provide extra levels of protection by allowing copyright holders to receive higher damage awards -- called "statutory damages" -- but this is entirely separate from basic copyright law and the protection it provides. Yet, what copyright registration does is advance people's understanding that copyright is important and valuable. It'll be important to keep this in mind while crafting solutions.
In any event, all photographs are copyrighted (by definition) the moment the pictures are taken. For a work to not be copyrighted is highly unusual, and, in fact, more difficult to achieve in practicality than one might think.
The most common reason would be that its copyright term has expired. See this article for details; it basically lists dates of expiration for when old photos fall into the Public Domain naturally. These photos are those that were shot long before modern copyright law was enacted.
Another way a work can be in the Public Domain is if the photo was taken by a government employee (or contractor) "as a part of that person's official duties". For example, photos shot by military photographers are in the Public Domain.
For everyone else, there is no clear and precise mechanism defined by law or any other government resource for one to release images into the Public Domain. (Foreshadow: this is the source of all the problems.) Therefore, it is virtually guaranteed that every photo you've ever seen on the internet is copyrighted by someone. If you aren't aware of that, you're not alone, and it therefore suggests that most the photos you see online should be licensed (such that the photographer is compensated in some way).
For a work to genuinely be in the Public Domain--a status where a photo has no copyright holder, and therefore, can be used by anyone for any purpose--is extremely unusual. So unusual, that one can pretty much assume that virtually no photos you come across online are in the PD.
In fact, in the research I've done for this article, I found that almost none of the copyright experts I spoke with could articulate a confident explanation of how you can rescind your copyright ownership to a work. In fact, most questioned why I would ask such a question--as though I were leading to something else. One person even refused to answer the question unless I stated why I would even want to do such a thing.
Ironically, the recommended method is oddly and deceptively simple: A copyright holder simply states that his photo(s) are in the Public Domain. Yes, it's true--that's all that's technically required. In Stephen Fishman's book, The Public Domain, he writes,
There is no prescribed formula for dedicating a work to the Public Domain. The author or other copyright owner simply has to make clear his or her intentions. For example, stating "This work is dedicated to the public domain" on a book or article's title page would be sufficient. It's not even necessary to make the dedication in writing. It could be done orally, but it's always best to write something down to avoid possible misunderstandings.
While this is all that the "law" technically requires--and there are many legal cases supporting this presumption--the reality of today's social and technological environment makes the application of such law and prior precedent inapplicable in many developing trends.
Take the case of Capitol Records, Inc. v. Naxos of America, Inc., 372 F.3d 471 (2d Cir. 2004). In essence, Naxos copied mint condition patters that contained classical music from the 1930s and sold it on CD. The music was, for all intents and purposes, in the Public Domain (having fallen out of copyright). The sales of the music wasn't contested at first, but when Naxos' sales grew just a bit too much, Capitol Records finally sued for copyright infringement (under common law) and won.
The legal assessment of this case suggests that, just because something may appear to be in the Public Domain, it doesn't necessarily mean that a user of that work is entirely protected.
An interesting summary and discussion (though a bit sensationalized) can be found here, which includes a notable analysis from Norman Lebrecht here.
While prior legal rulings may hold legal weight and standing, they aren't going to prevent or slow down bad behaviors. Social behaviors trump the long arm of the law when the population's actions surpasses a certain critical mass and there are no attempts to curtail the actions by others.
This is the very problem with the Public Domain concept: it hasn't been updated to reflect today's society--or rather, people's understanding of the term. PD was defined at a time when there was no internet or electronic media of any sort. It also hasn't been perceived to need revision since few people actually proclaim their works to the Public Domain. There is no financial incentive to do so, and the few who've released works voluntarily are usually well-known artists, collectors or philanthropists. Hence, their "donations" were never questioned, or disputed. The authors were credible and their lack of legal action against users of those works further underscored the legitimacy of the works' copyright status. In short, there's rarely ever been serious risk.
The two key notations above are risk and credibility, which go hand in hand with copyright and safety from litigation. Today, if someone wishes to publish most any kind of work--even those perceived to be in the Public Domain--there's risk because the credibility of the claim or the claimant can be in doubt.
Liability of Publishing Copyrighted Works
Under copyright law, the publisher of a work assumes all responsibility of liability if the work was not properly licensed from the copyright holder. If the work is not in the Public Domain--despite some random person's claim otherwise--the original copyright holder can file an infringement suit against whoever publishes the work. For a publisher to be truly "safe" from liability, he should get direct consent from the copyright holder. (Bookmark that phrase in your brain--you'll see it again soon.)
You may ask, "What's the real-world threat here? How and why would someone falsely claim that some photo that they don't own is in the Public Domain?"
Remember, the online world is full of malicious people looking to siphon money from the naive and vulnerable. People can be both when it comes to online scams, ranging from the Nigerian email schemes to more modern methods of preying on the jobless (as described by this article in the New York Times).
In the case of "The Public Domain", people's naivete plays right into this, and the malicious agent can leverage this misunderstanding on both sides of a copyrighted work. The less malicious example is less common, and isn't used to siphon money so much as to get a free pass to steal: by falsely attributing a Public Domain notation to a photo he wants to publish, his defense is prepared for later if the copyright holder were to challenge him. "Hey! That's my photo! You infringed." To which the response is, "What? You own that image? When we got it, it said it was in the Public Domain. We can't be held liable for that!"
To a judge hearing this, would he believe the claim? Or would he see through it and realize he's trying to use the image for free--robbing the original copyright holder of his license fees?
Or, perhaps the malicious player is setting a trap: luring an unsuspecting publisher into thinking he can use a photo for free, after which, a bogus copyright infringement claim is filed (with the intent of collecting a settlement)? The exact same exchange between parties -- the same dialog -- can take place when the copyright holder (or the person posing as one) is the malicious agent.
In both cases, misrepresentation of the image takes place. The problem facing any court is determining which side -- the plaintiff or the defendant -- is the malicious player.
What makes the crime all the better is that the judge has to consider a third possibility: that neither side making a false claim at all. The false claim of PD could have been made by an entirely unrelated third party which no one can possibly find. Which of these three scenarios will a judge choose? Would his ruling be consistent across all cases? Would it set precedent for future rulings? No matter what, the advantage is in the hands of the bad actor, because he has little, if anything, to lose.
Making matters more attractive to bad actors is the volume of images. There are billions and billions of photos on the internet, millions of which are passed around so much, it's nearly impossible to know where any one of them originated. By the same token, the original copyright holder probably doesn't know either. Therefore, pretending to be the author of an image is almost guaranteed to be believed.
It reminds me of the now-famous New Yorker cartoon, where two dogs are at a computer, and one says to the other, "On the Internet, no one knows you're a dog."
The Microstock Scheme
This scam with photography is not new; it started a few years ago in using a slightly different scheme, one that was also more profitable at the time than it is now.
About five years ago, microstock photo agencies sprang up in larger masses that gave rise to this problem. These companies are like traditional photo agencies, but are much more lax, semi-automated, and deal with micro-valued photo assets. They sell millions of images submitted by photographers, who in return, receive a percentage of sales. Scam artists started submitting stolen images to these agencies and collecting those royalties. What made this possible is that virtually no stock agencies require proof of ownership, or even that photos be registered with the Copyright Office as an extra level of assurance to image buyers. Stock agencies bear no risk; they have photographers indemnify the agency by warranting that they are the photographer. The warranty may or may not be true, but it doesn't negatively impact the agency, and the bad actor doesn't care--only the buyer is harmed here.
There are already documented cases of this (a few of which can be found using a variety of search terms, such as "stolen photos microstock"). Although most stock agencies don't want to publicize numbers, it's no secret that the problem is getting worse, since the systems are largely automated and there's no way to know whether a submitted work is stolen. It takes very little effort to pull this off, and it's very easy for the thief to shield his identity sufficiently. In the meantime, he collects royalties on the images he submits.
And don't think I'm giving anything away here--cyber-criminals are way ahead of all of us. In fact, the above method is now seen as less lucrative than other related schemes. Most legitimate photographers earn only a meager $10,000 or less per year with most stock agencies, and those are the successful ones. (PDN Newswire publishes surveys every year.)
If you're a thief, you're thinking, why bother with stock agencies and collecting license fees from legitimate buyers, when a greater payload is achieved by threatening copyright infringement against publishers of photos that the con artist has claimed.
Though the problem is far from pandemic, let's not forget the phishing schemes were at one time rare anomalies, too. Once an easy way to make money is found, thieves are entrepreneurial in how quickly they perfect and automate the system. And phishing turns out not to be too different in principle than the scheme here: lure a naive user into believing a frightening claim. "Login to your bank site and reset your password now!" Anyone that would believe that would also believe, "You've stolen one of my images; copyright infringement can be quite expensive, but I'll be willing to settle out of court, saving both of us time and money."
The Creative Commons Scheme
In fact, I cited long ago how this can be done using Creative Commons licenses. The CC is a series of license agreements by which copyright holders permit users to publish their works for free, provided that author credit is given as a byline (among other options the CC optionally provides).
By adjusting metadata in the images to proclaim Creative Commons status, and spreading them around photo-sharing websites rather than stock photo agencies, the game is to entrap licensees who seek CC attributed images, and then sue them once they publish them. As before, the claim is "I never attributed those photos with a CC license! You've infringed!"
The Creative Commons' role in contributing to the growing misunderstanding of copyright is complex and unfortunate. The stated objectives and wider ambitions of the CC are worthwhile, admirable, and valuable to society, but unless handled properly (by paying attention to the side effects of its popularity), it can lose favor if its downsides are realized.
The CC's popularity is more directly augmented by social-networking sites who promote it for their own economic interests: They derive revenue on traffic, advertising, and membership fees--not from content. The more end-users share content online, the more traffic the site gets. The Creative Commons license fuels the rate of photo-sharing, which helps the site, but perpetuates the greater misunderstanding about copyright. The complex agreements behind CC are never read by individuals, who also don't understand the opportunities they give up. Nor is it in anyone's financial interests to warn potential users of CC works that they are assuming some liability in the event the CC attribution is not authentic.
The Public Domain Scheme
How does Public Domain factor into this?
Like Creative Commons, the use of PD works is free. But that's not really the critical detail here. What's shared between these forms of content attribution is that they are the only two ways in which publishers would use works without obtaining consent directly from the creator of the work (or authorized assigns).
Remember when I told you to bookmark the statement that licensees are safest when they get direct consent from the author of a work? Now is where that applies. Again, under copyright law, the publisher bears the liability of using works. And when liability is in play, someone has economic incentive to exploit that legal fact for profit. The consequences are so onerous, that even the threat of an infringement causes wallets to open and cash to come flying out, just to make the problem go away.
What both the Creative Commons and Public Domain have inadvertently accomplished is the creation of a huge liability gap, through which a Mack truck can be driven.
I repeat again that both mechanisms were conceived with good intentions. Of course, it's by design that the Public Domain and the Creative Commons are set up to avoid direct, one-on-one contact between the publisher and the author of a work. This would be the best way for people have their works widely and frequently used by others for free. But this very aspect of those copyright vehicles is leading to misuse and abuse.
And therein lies the paradox. There's an old saying, the road to hell is paved with good intentions. And in the case of CC and PD, the pavement materials used for this road consist of photos and fraudulent claims of ownership and copyright status.
I can speak to this from personal experience. Of the 40,000+ images on my website, I often find anywhere from 1500 to 3000 instances of my images on other websites (not counting those who legitimately license from me) at any given time. And though I can't reliably track infringements on a real-time basis, it's very common for me to find my photos on someone else's site, or on a photo-sharing site like Flickr. In such cases, it's almost always an innocent consumer who's just copying and posting photos they like from various websites they've visited (totally unaware that such copying is a form of infringement). In some cases, I find that my photos' metadata records have been altered in various ways, showing different authors, different locations, and yes, different copyright status, including both CC and Public Domain claims.
In most cases, it's unlikely that those changes were made by the person that presents the page. (I can usually tell by gauging the sophistication or naivete of the person I'm emailing.) Rather, my photos were most likely copied from my site by someone else first, who modified them, and then passed them around the net before the unassuming Flickr user found them.
Could those have been the original malicious players? I've no idea, but one can only speculate what other motivations there may be.
On those occasions where I find my work is being infringed commercially, I always hear one of several excuses by the infringing party in their attempt to absolve themselves of responsibility (and liability): "It said it was in the Public Domain (or had a CC license)." "We got it from a CD that has royalty-free images on it." Or, "Our graphic designer got it from another supplier." "We have no idea where we got it."
As the true copyright holder, I have no idea whether they are telling me the truth. All I know is that I'm not getting my license fees for their use of my image. If their excuses are to stand, they just got away with using a photo without paying for it. One of us is about to get screwed. Who should it be?
It turns out, the law is on my side--it's their responsibility to assure they licensed a work properly from the original copyright holder (or his assigns). Which brings me full circle to the problem. The publisher always assumes risk using photos that they didn't obtain directly from the source. And when most people are so massively uninformed about Public Domain, that risk turns into reality from improper licensing practices.
All this leaves the whole purpose and benefit of Public Domain in doubt: What value is there to it if, in practicality, no one can necessarily trust it?
By this point, you may be thinking of The Orphan Works Act (OWA)--a new proposed legislation that gives limited protection to certain kinds of publishers who may inadvertently infringe on a work because they were unable to identify or locate the author of a work. Though the OWA doesn't actually do what most people think it does, it still doesn't apply here because the bad actors are employing a scheme that involves posing as a copyright holder and threatening a publisher with an infringement suit--not actually filing one.
The legal costs in defending any claim (even a bogus one) is always greater than ending the dispute with a settlement of some sort. Even if an infringer would be protected by the OWA, he still doesn't want to spend lots of money in court defending himself. He will settle.
So, OWA doesn't really protect publishers the way copyright holders have thought it does, nor is it going to be a deterrent for bad actors to fraudulently masquerade as copyright holders. (Besides, the reality of the OWA is that its beneficiaries are different types of organizations, for only certain types of uses.)
So, there's nothing in the current legal system that can really be done to avert these kinds of schemes, given how easy they are to perpetrate and to hide from (especially overseas).
However, history has showed that illicit activity like this is ameliorated when there's a legitimate, mainstream infrastructure that engages the general population. When people are more participatory, they become aware when something appears out of place or suspicious.
The problem with Public Domain is that it's so rare and people are so uninformed about it, people can be lured into a moral hazard. This is a term used in economics that describes how people will do risky things if they perceive they are guarded against the consequences. Here, people think Public Domain applies to things that aren't actually in the Public Domain, so they do risky things with those works.
If people were more engaged in the copyright process, both as creators and users of works, they would be more cognizant of their own behaviors, as well as those of bad actors. To get them more engaged, companies need to invest in systems, mechanisms and infrastructure that creates an economy around photo-based copyright. But the reason none of this exists is because no one can build a business case that gets around all of the unique problems that photography presents (as described at the top of this article).
The only entity that can create such conditions is the government. And this is done not through law or education, or even by financial investment, but by changing certain key policies that give incentive to companies to participate in the system. Their participation spreads to consumers who participate as both buyers and sellers of photo assets.
There are two ways to address this problem. I've already addressed one in considerable depth in my article titled, Proposal for Privatizing the Copyright Registration Process. In short, the government would allow private companies to handle the processing of copyright application forms that people submit with their photos. Currently, a tiny percentage of works are submitted for registration, but if private companies were allowed to process those applications as Copyright Registrars, they would have economic incentive to promote their services, which in turn, informs and encourages consumers to engage in copyright registration. This leads to products and services that people would use to protect their rights--which may include licensing services (like that of a stock agency, but on a massive scale).
The byproduct of such a mechanism would be that people would be far more aware of what copyright is, and where its different from Public Domain, leading to far less confusion about both. Social behaviors would also be more copyright-aware -- people would be more aware of their own photos, which translates to behaviors in the workplace: they'd be more aware of using others' photos as well. This isn't because they'd have a sudden burst of ethics or sympathy, but because they'd be familiar with how the system works. Just as they wouldn't illegally use a song for a TV ad, they also would be aware that they'd need to license an image from the original copyright holder (or his assigns) before putting it in a magazine ad or brochure.
The next thing the government could do -- which could also be independent of the Copyright Registrar proposal above -- is to provide a brand new form for formally releasing the copyright to a work into the Public Domain. This process could be similar to the standard copyright registration form that people use to formally declare their ownership of images. (In fact, there could be a form that combines both to save time for those users who wish to release copyright before even owning it.)
The formal process substantiates authenticity. A potential user of a work he thinks is in the Public Domain would have resources available to him to formally verify it. Similarly, an author could monitor whether his works are being wrongly claimed and classified by others.
The credibility is also backed up by the fact that such registration would be underscored by federal laws, which carry hefty fines for fraudulent claims or representations. (Currently, the fine for fraudulent copyright registration filing is $2500.) It is a long-standing observation that most criminals avoid violating federal crimes, not just because penalties are punitive, but the federal aspect ups the stakes considerably... this, especially if there's a past history of criminal activity, which can even lead to jail.
As a side note, it just so happens that the Orphan Works Act mandates the creation of an online database of copyrighted works. It could very well be extended to include works the people release into the Public Domain.
Obviously, this would have no effect on works that have been in the Public Domain due to expiration. Needless to say, they could very well be treated as they are today, on a case-by-case basis through the courts.
As for the Creative Commons, this is a matter that has nothing to do with the government, or Public Domain, unless the government wished to institute a new derivative form of Public Domain that was a hybrid between copyright ownership and free use and distribution--something like what the CC is. But that's an idea for another blog posting another day.
Anyway, the CC's liability is similar to the PD, but the solution is slightly different because of the lack of government participation. I had proposed a particular approach in a blog entry on January 13, 2008. There, I proposed that the Creative Commons create a registry where authors and publishers alike would register their works (and intentions to use them), so as to authenticate and document who's doing what. That plan was intended to be a stop-gap measure, but it doesn't actually stop a bad actor from fraudulently claiming a work to be in the Public Domain. (There's nothing more unique or preventative about a CC registry that carries with it the heavier weight of a federal crime.)
In other words, CC works still suffer from the credibility question, and that can be addressed by merely requiring that works with the CC attribution also be registered with the Copyright Office. This not only reduces risk for all parties because the credibility of copyright registration is substantially higher than that of a CC registration, but the penalties for violating CC terms and conditions escalates to statutory damages because of the copyright registration. This would effectively bolster the overall perception and enforceability of CC works. They would be better perceived as "safe to use."
The natural objection to such a proposal is that, since few people ever register their works with the copyright office, participation in the CC would dry up. The CC could alleviate that concern by integrating its own registration process with that of the copyright office. That is, by registering with the CC, you would automatically register the work with the copyright office as well.
This tie-in could actually encourage more people to use the CC, both as contributors and publishers of such works.
My long-standing view of copyright, economics and law is that the "system" works when there are checks and balances that give credibility and protection to the intentions of all who touch copyrighted works: authors and users alike will participate in a system that is less subject to unfair exploitation, which yields positive economic benefits and reduces economic risk. This, in turn, fosters investment into mechanisms that help facilitate and expand on such opportunities.
In the end, the free market will find the balance between what's paid for, and what's free. But without such mechanisms, the state of affairs today is like the Old West: the rustlers rule.