Photographer Dan Heller divulges a new strategy to use CC licenses to sue people who wrongly use photographs :
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.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.
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The architecture of a plan to entrap is now complete:
- Register images with the copyright office
- Assign CC licenses to them and post to Flickr
- Wait a sufficient amount of time for people to pick them up (optional tactic: promote them like crazy under an alias)
- Revoke the CC license
- As the fish start jumping into the barrel, go get gun…. er, lawyer.
- Start with companies that didn’t use the attribution: bang
- 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.
See the longer Slashdot discussion of Dan Heller’s pieces about why CC Licenses are flawed.
By the way, Heller is not saying that CC licenses are revocable (they are not). He is simply saying, how can you prove something had a CC license when you took it? The record-keeping involved in proving this is arduous. Easy workaround: take a screenshot (with a timestamp) of where you found the image with URL and date clearly visible.
I remember reading an article by Lawrence Lessig where he rebuts a music industry propaganda piece on CC licenses. The piece complained that CC licenses are NOT revocable and Lessig conceded this point. If you assign a CC license, the terms of the license specifies that it is permanent and non-rescindable. If a creator does what you are describing, they themselves are in violition of the license!
Ficbot: Wow, I just added the last paragraph about precisely that point.
As someone who is diligently keeping track of photos used for a fiction/ebook site, I find the research/record-keeping arduous (Of course, it probably is arduous even if you buy the image legitimately). Fortunately, cc sites like flickr make it easy to find all sorts of stuff and contact people directly for permission (instead of having to go through Getty).
IANAL, but I should think you’d be protected from liability if you use only images in which the Creative Commons license has been embedded in metadata.
Todd, Suppose the photo were incorrectly labeled on flickr. Then, the photo was removed from flickr. Where would be your proof? BTW, I don’t think flickr embeds metadata inside the graphic itself. (I could be wrong).
Practically speaking though, there’s not much ability to squeeze a lot of money out of small websites. Usually photographers just want removal. And companies are usually too smart to rely on CC licenses unless they are 100% confident it is correctly labeled.
Ironically, just a week ago, I received a copyright infringement email about a flickr photo I had incorrectly labeled as CC-NC-BY-ND. In fact, it was a copyrighted image, and although I did give proper attribution, I forget to remove the default CC license I gave to everything. It was an interesting case because if I hosted it on my site, it might have been properly declared fair use. But on flickr, it becomes part of a larger CC search pool. It was an embarrassing moment for me.
I don’t see how it is so arduous to do record keeping given Robert’s obvious solution of just taking a screen shot.
The article itself was just so much FUD. This is what Bruce Schneier calls a movie plot threat. Yes, you could see this making a great Law & Order episode but a) show me where this ever happened and b) the rogue photographer is taking a *huge* risk — if he runs into someone who did think to take a screenshot or other doc, he’s screwed. Not only is he civilly liable, but I believe he’s on the hook for a number of criminal acts beginning with fraud, perjury, etc.
I think the bigger scam would be to do intentionally what Robert did unintentionally. Find some relatively obscure copyrighted images, label them with a CC license, upload somewhere anonymously. Wait for others to start using them and then inform the legit copyright holder.
Oh, I’ll probably get my butt sued one day for all the stuff I use. Suits will disagree, but when it comes to pics on the Net, I generally go by the Share-and-Share-Alike rule. If someone has an exclusive photo, I won’t take it; I’ll say go look and point to it with a link. If it’s something that’s plentiful, I might use it — but I always point back to the source. I think at least giving credit is important and can mitigate claims.
Now, as for historical stuff. I’ve been going nuts trying to find old photos. I find the gov’t’s search engines really stink for narrowing down subjects. I spend a lot of time poring through LoC and NA sites. Even the NYPL’s digital archives gets confusing and disappointing.
As with most things that involve rights, I tend to throw up my hands (if not just throw up) and go YECCH!
As for pictures I myself take and use on my site, I wouldn’t feel aggrieved if someone used some of them and pointed back.
The different CC licenses stretch from very free to very restricted, so it’s not a good idea to use just the term “CC” in this kind of discussion (nor in most kinds of discussions for that matter).
Robert writes:
Creative Commons provides an application called ccPublisher that lets the owner of the image embed the license. It can also embed a link to a web site where the validity of the license can be verified. If the verification fails, the license should be considered fraudulent. Someone wishing protect himself to the greatest extent possible should use only images that contain a validation link as well as a license.
In the hypothetical fraud scenario posed above, the Internet Archive or the Google cache could probably provide evidence to demonstrate that the link did, in fact, exist at some point in time. I’d expect evidence like this to carry more weight in court than a screenshot, which is easy to fake.
You can probably anticipate my answer to this, but just to be clear: someone who genuinely seeks to protect his image under a Creative Commons license should use ccPublisher to embed the license and the validation link rather than depending on a distribution platform to do it for him.
So using CC Publisher means that it must be uploaded to archive.org This creates small problems (versioning, etc), but it is a viable solution.
if archive.org played that important role of capturing upload/license data and keeping a file copy of things, it probably would no longer need to be a front end for content (I find the website not particularly usable, and I used to use it a lot).
Robert writes:
No! CcPublisher is a stand-alone metadata embedding tool, nothing more.
All I was suggesting was that if the embedded metadata includes a validation link to an external website (which would presumably be maintained by the owner of the licensed materials), the Wayback Machine or Google cache is likely to have a copy of the page to which the validation link refers that had been captured before the baddie in the fraud scenario removed it.