Cluelessness as a problem for Creative Commons
Given my apparent reputation as being 'anti-copyright' (which I'm not), you'd think I would be a major supporter of things such as the Creative Commons project -- but I'm not. Creative Commons has got far too many bugs and other assorted problems for my liking. Many months ago I wrote a paper describing some of the faults that I perceive with the licenses and the movement, one day I'll probably clean it up and publish it on the net. I might even publish it under a Creative Commons licence.
I can do this, because it's an original literary work, and I'm the author, so I own the copyright which subsists in it, and I can license it as I please. But some people don't know or don't care about little details like that.
Take as an example the Flickr user anomalous4. It might be unfair to single them out for criticism on this issue, since I'm sure there are thousands of other people out there doing the same thing, but they seem to be a fairly clear-cut example of the problem, and they came to my attention after one of their pictures was posted on Cute Overload today.
Yes, it's a cute pic. Click on it, and you end up on the page for that pic on flickr. The description of the picture? "don't know source of pic." They have other lolcats on their flickr profile, here's another one. The description of that one? "Original from ????? don't know".
I'm inferring from the descriptions that anomalous4 has given those images that they have found the original cat pictures from somewhere, edited the pictures to insert a humerous caption, and put them on their flickr profile. The problem is, anomalous4 has purported to license both of those images under a Creative Commons Attribution 2.0 licence, which they almost certainly had no right to do. You can't give people permission to use copyright material that you've just randomly appropriated from somewhere on the Internet because it was cute.
This is an admittedly trivial example. It's not likely that the original copyright owner would find out that this was happening, they may not care, and they probably wouldn't sue. The risk to people who reproduce anomalous4's CC-licensed lolcats is pretty tiny. But then again, cute overload might put it in their 2009 calendar, and get sued by an angry litigious photographer who thinks they've stolen their photo.
My point is this, and it was a major theme of the paper that I wrote criticizing the CC licences: When you release material under a CC licence, you are inviting other people to reuse it and purporting to give them permission to do so. If you don't have the right to license that material, the people who reuse it could get sued. You owe it to them to only CC-license material which you have the right to license. Usually, that will mean that it's your own original work (sticking a caption on somebody else's cat photo doesn't count) or that the non-original components were also CC-licensed.
I can do this, because it's an original literary work, and I'm the author, so I own the copyright which subsists in it, and I can license it as I please. But some people don't know or don't care about little details like that.
Take as an example the Flickr user anomalous4. It might be unfair to single them out for criticism on this issue, since I'm sure there are thousands of other people out there doing the same thing, but they seem to be a fairly clear-cut example of the problem, and they came to my attention after one of their pictures was posted on Cute Overload today.
Yes, it's a cute pic. Click on it, and you end up on the page for that pic on flickr. The description of the picture? "don't know source of pic." They have other lolcats on their flickr profile, here's another one. The description of that one? "Original from ????? don't know".
I'm inferring from the descriptions that anomalous4 has given those images that they have found the original cat pictures from somewhere, edited the pictures to insert a humerous caption, and put them on their flickr profile. The problem is, anomalous4 has purported to license both of those images under a Creative Commons Attribution 2.0 licence, which they almost certainly had no right to do. You can't give people permission to use copyright material that you've just randomly appropriated from somewhere on the Internet because it was cute.
This is an admittedly trivial example. It's not likely that the original copyright owner would find out that this was happening, they may not care, and they probably wouldn't sue. The risk to people who reproduce anomalous4's CC-licensed lolcats is pretty tiny. But then again, cute overload might put it in their 2009 calendar, and get sued by an angry litigious photographer who thinks they've stolen their photo.
My point is this, and it was a major theme of the paper that I wrote criticizing the CC licences: When you release material under a CC licence, you are inviting other people to reuse it and purporting to give them permission to do so. If you don't have the right to license that material, the people who reuse it could get sued. You owe it to them to only CC-license material which you have the right to license. Usually, that will mean that it's your own original work (sticking a caption on somebody else's cat photo doesn't count) or that the non-original components were also CC-licensed.
Forgive me, but I don't fully understand the thrust of this article. The lolcat example - a far from unrealistic case study, really - doesn't seem to expose a weakness in the creative commons license, but a concern with licensing in general. If someone doesn't have the rights to whatever they are licensing or selling you, then you are at risk regardless of what rights they purport to convey to you. Just like the scrap iron merchants who bought the Eiffel Tower from Victor Lustig, this example shows that it's important to be careful who you do business with.
After all, if I steal cat photos and sell them with unlimited use rights on my stock photo site, my customers could get in trouble if the real owner finds out. That is hardly an argument against the commercial licensing of any form of content. The key phrase is "if you don't have the right to license that material" - if I don't have the right, then it's irrelevant what copyright or copyleft system I adopt, surely?
Creative Commons has become a shorthand for putting material out there to be reused, but I wouldn't confuse this with the internet's traditional laxity when it comes to this sort of attribution issue.
I probably should have spelled this out a bit more clearly... IMHO, Creative Commons, and the licensing process (i.e. the 'license your work' wizard on their website) don't do enough to bring to the attention of licensors and licensees several very important issues. In the case of licensors, whether or not they own or otherwise have the right to license the work is a significant issue (probably the significant issue), and isn't really something that should be stuck behind a "For those new to Creative Commons licensing, we've prepared a list of things to think about" hyperlink.
This leads in to a discussion of one of my bigger objections to the current CC licences, which I'll cover in my next posting.