I’ve already acknowledged my fuzziness around the implications of the various clauses of a Creative Commons license. In my hyper-simplistic way I have come to be convinced by the likes of David Wiley and others I respect in the open culture movement that in too many instances the Non-Commercial (NC) clause created an unnecessary barrier to reuse.
For instance, I know some people (disclosure: one of them is mother to my son) who are passionate about teaching the principles of permaculture, to promote techniques that will decrease energy consumption and promote sustainable food production. Among their activities are workshops in which practitioners share their knowledge with an informal, generally hands-on approach. The instructors get a small honorarium for their time, and there are overhead costs, so a nominal fee (usually $25) is charged to participants. I can assure you that nobody is making money out of this arrangement, it’s just an attempt not to lose money. When I talk with open education types, I often ask how online educational resources could be shared in a way that is relevant and useful to this type of use case. A common theme that emerges in these discussions is that NC-licensed resources are effectively copyrighted against this type of use. Sure, the permaculture people could ask permission. But they could ask permission to use a copyrighted item too. Creative Commons is supposed to promote frictionless adaptability.
On the other hand, you have the position of Stephen Downes and others, who essentially argue that allowing commercial use will inevitably be exploited by corporate creeps in ways that will be contrary to the spirit of Creative Commons. Perhaps the process will even be a lever to move open content into the proprietary domain. (I’m radically simplifying here, but hopefully got the spirit right. I really don’t have time to write this post, I’ve got spam to suck.)
Well, add a point to Stephen’s column.
Via Twitter, I read Vicki Davis’s post which describes how <a href=”a Virgin Mobile ad swiped a picture of a girl (check out the comments) at a car wash, and apparently used the CC-attribution license as justification to use the kid as an unpaid model. Apparently a lawsuit is pending. More swiped images and discussion here.
There may well be more to this, so in the absence of further research I’ll hold my vitriol. But on the surface it seems like a fairly straightforward case of a corporation using an open artifact for aggressive marketing… I’m fairly sure Virgin had lawyers consider whether or not they needed to get permission from the subject of the photo. They did provide attribution in the bottom corner, and there may well be nothing anyone can do (unless the CC license is found not to carry any weight, which could get ugly for a lot of people).
I suppose I could boycott Virgin, but I’ve been avoiding them for years anyway. Richard Branson and his self-obsessed hipster billionaire act put him high on my hatelist long ago. He manages to combine what I despise most about Bono and Donald Trump into one smarmy package.
Selecting a license for a resource doesn’t mean it’s a valid license. If I take a photograph of the Mona Lisa (or some other painting) and put that on Flickr under a CC: Attribution license, that doesn’t mean it’s legal. It just means that’s the license I tried to apply to my photograph. But anyone wanting to actually USE that photograph (of a painting, or other copyrighted work, or un-model-released person) would have to understand the legality of the situation (which, in this case, means my attempted CC:By license would be invalid).
You’re making the same point that I was trying to on Vicki’s blog. You can’t license something that you don’t really have the rights to, such as the screen shots from the Apple site that I came across yesterday.
I’ll need to remember to bring this into my next talk with new instructors. Some of them still think that if it’s on the Web they can use it however they wish.
D’Arcy has it right, as usual. It will be interesting to see what comes of the Flickr-ers culpability.
Imagine if the photographer did have a model release, though. Is this doing evil by Downes’ standard? Maybe not, but I can imagine some uses that I would consider horrible. But that’s what happens when you opt for the freedom of BY only. Even with NC, I wouldn’t be too happy to see pictures of mine end up in NAMBLA pamphlets or racist tracts, regardless of their profit-making status… but that’s the risk.
For now I opt to take that risk, figuring that the benefits of openness outweigh the potential disadvantages. I’m a little torn, as in many issues (DRM anyone? :), between what feels right/freedom, lawful restrictions and protections, and living with the consequences.
What if the girl gave the license to the photographer to take her picture at church to share with her friends at church but not to be used commercially? There are fine shades of meaning here and the photographer’s rights and model’s rights are to both be accounted for. Of course, one taking a picture at times square doesn’t have to get everyone’s permission — but aren’t there cases when the model deserves compensation or at least permission to use their image. I don’t know the answers to this, however, there are many more issues like this that are going to be decided in the years to come.
Thanks for this Brian – I’ve had some concerns around the non-commercial use thing for a while, in that it could lead to contagion like open source licenses have on occassion, which actually ends up being prohibitive (for instance if I wanted to use a good NC image in a book I was writing). But I think Stephen’s case is a good one, so it’s helped have the case for both sides put so well.
And a shameless plug – I’ve a long piece on the future of content which may be of interest at http://nogoodreason.typepad.co.uk/no_good_reason/2007/09/the-future-of-c.html
Oh, and that quote about Branson made me laugh on a Sunday morning with a hangover.
Thanks all for the thoughtful commentary. Martin, I thought that piece of yours is excellent. I have it on my (unfortunately very long) “to properly reread” list.
Hey Blam, I think its important to keep a clear distinction in this case, (which I think you do). The issue is about the girl giving permission to use her image – not that the image has a CC BY license. If the image that Virgin use was simply a landscape – nothing that any person or culture personally identified with of course – then all would be OK. I’d hate to see a mass use of the more restrictive CC BY NC based on this issue.. The license has little to do with this case.. Virgin should have known or found out if the girl gave release for them to use her image. But I’m affraid that the nay sayers will pick this up and attribute it to a problem with CC BY 🙁
BTW, there is/was a permaculture network on Frappr for a while there.. is there one on FaceBook yet? Would be nice to see WWOOFing spread through a social platform…
Leigh – you are right to make that distinction, but apparently the girl does not have to give permission in the States (the law is different in Canada). Stephen Downes linked to this:
Like you, my first thought was that this episode would be used as a hammer not only against the NC clause but against the concept of open licenses in general.
On another note, I did a quick search, and see 38 results for a group search on “permaculture”… And I think Keira will be adding to that.