Creative Commons, Common Sense, and Nonsense

Over the last 3-4 years many people have been speculating about how U.S. courts would interpret the Creative Commons (CC) licenses in litigation concerning their legal operation and effect. There are several reported cases in Europe, but to my knowledge, none so far in the U.S. Due to the popularity of the CC licenses, it was only a question of time before someone would try to enforce (or challenge) them in court. In the first occasion it actually happened, the claim took a quite unanticipated turn.

As Prof. Lessig posted last week, CC is a defendant in an action brought recently before a Texas court. All the important facts are summarized there, so I briefly reiterate only the very essentials. Photographer (P) took a picture of minor (M) and uploaded it to Flickr. A mobile telecommunication company (V) spotted the pictured on Flickr, which linked to a CC Attribution license (v.2), allowing anyone to use the photo both commercially and noncommercially as long the photographer is accredited. V used the photo for a commercial campaign, depicting M under the slogan “Dump Your Pen Friend.” M’s parent and P sued V on various counts. Also CC was sued for negligently “failing … to adequately educate and warn [P] … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.” (¶ 35 to the Complaint.)

I think that also non-lawyers can see why the claim against CC is meritless. The reason is that it does not make sense. My aim here is to show why. I use as least legalese as I can to convince in a way that should appeal to the common sense. Accordingly, I think that most people would agree that targeting CC here was wrong. This conclusion is possible even without knowing much about privacy law in Texas, or for that matter, without taking contracts, torts or copyright in law school.

Let’s begin with a minor hypothetical change in the facts. The link to the CC Attribution license does not appear on the Flickr page because P is not aware of CC. Everything else remains unchanged. M feels offended by the use of her picture in the commercial campaign launched by V. Therefore, she targets the natural defendants that allegedly violated her right to privacy, namely P (who took the picture and offered it to the public over the internet) and V (which used it for its campaign.)

Let’s focus on P for a moment. In our hypothetical, he does not use a CC license. In such case, as a rightholder he is left with two basic options concerning his copyrights. The first is “all rights reserved.” Alternatively, if he wants to encourage free use, he may explicitly promise (say, on the same page displaying the photo) not to bring any copyright action against anyone using the photo under certain conditions, or under no conditions at all. It is well possible that by making the picture available online without M’s consent, P violates M’s right to privacy. Either way, the copyright terms and conditions chosen by P with respect subsequent use of the photo have nothing to do with the question whether P has violated M’s right to privacy or not.

Intermediate conclusion number one: Privacy and copyright matters are two different kettles of fish.

Returning now to the real facts, P is not being sued. Instead, he is suing. Namely, M (via a parent) and P join forces against V and CC. Why? A plausible answer is that M has approved the Flickr posting, either in advance or retroactively, but she did not approve the use for the campaign. M thus needs a legal theory that could convince the court that V has violated her right of privacy, without explicitly admitting that she had agreed to publication on Flickr, a fact that might weaken her case against V. At the same time, M cannot plausibly argue that the Flickr publication was unapproved and simultaneously have P as a plaintiff in the very same action she brings against V. The CC license provided the missing piece, proposing a distinction between P and V. It is the same CC license that allegedly misled P about the nature of “commercial use.” Whereas noncommercial use on Flickr by P may be okay, a commercial use by V is not okay. P turns a plaintiff instead of a defendant due to the negligence of CC. Do you follow, Judge?

We change the facts once again. What if - instead of V (which is a for-profit mobile telecommunication company) - it is now an international nonprofit organization devoted to increasing awareness to environmental issues that picks the Flickr picture. The hypothetical nonprofit runs a large campaign for saving the rain forests, and it seeks to convince people to reduce consumption of paper, pencils and other wood-based products that have alternatives which are more friendly to our planet. Relying on the CC Attribution license, the nonprofit uses M’s photo under an almost identical title as used by V in the real case: “Dump the Pencil Friend.” Would M still sue under these facts? Is the distinction between commercial and noncommercial use relevant to her complaint about invasion of privacy and libel? I do not think so. The answer could be different if the right of publicity took center stage. The right of publicity is a quasi intellectual property right invoked usually by celebrities and other famous people who wish to control the commercialization of their image, likeness etc. Here the distinction between commercial and noncommercial use could be important, depending on the applicable law. But M is not invoking her right of publicity. And at least prior to V’s campaign, she was not even an celebrity.

Intermediate conclusion number two: The invasion of privacy and libel counts do not turn on the question whether P understood the distinction between commercial and noncommercial use while adopting a CC Attribution license. At best, this fact if proven can be used to deny contractual relationship between P and V. In fact, P's contention that he did not understand the license runs couner to his own argument that there has been a "valid and enforceable license contract" between himself (P) and V (¶30 to the complaint.)

Perhaps the most important point I hope to make here is that, strictly speaking, CC does not have a legal obligation to warn people against all the possible legal consequences of communicating information. CC licenses can apply also to offline media; circulating information on the internet and otherwise might expose the communicator to many legal risks. CC cannot explain and warn against all those risks. Since CC does not bear a general duty to educate and warn about the consequences of communication that have nothing to do with copyright law, it cannot breach a duty of care regarding violation of privacy laws.

Last hypo. Suppose that someone photographs a highly sensitive and secure military facility without permission. This conduct is strictly prohibited under national security laws, not to mention posting such pictures online. Our photographer does exactly that, and uploads the pictures to Flickr, subjecting himself to severe criminal penalties. Suppose the photographer chooses one of the CC licenses allowing others to make use of the picture, adding the relevant CC link on his Flickr page. If prosecuted and punished, can the photographer bring a civil claim against CC for failing to educate and warn him about national security laws? A lawyer might not like me mixing liability under criminal and civil legal provisions. So that lawyer can forget about the national security hypo and think about all the civil causes of actions that a CC license can accompany, for example, various libel law violations, contract law (e.g., in the case of violating a non-disclosure clause), trade secrets law (e.g., for revealing confidential commercial information) and so on. I believe that the number of possible torts and civil claims is very large.

The best comes last. In the Complaint (no more hypos), P argues that V has violated the CC Attribution license by failing to give him credit (Count IV to the Complaint.) This is factually inaccurate, at least in part. One Flickr user took a photo of V’s advertisement poster mounted on a bus stop, depicting M. On the bottom left corner of the poster there is a URL of the link to P’s Flickr page, which embodies his name. Surprisingly, the picture is still available at the time of writing (why didn't they sue Yahoo too? What about Google?)

Anyway, according to the basic CC principle, violation of the license reinstates conventional copyright law, namely, “all rights reserved.” That means that upon V’s breach of the CC Attribution license, it is subject to copyright infringement allegations. But P does not mention any copyright infringement whatsoever, only a breach of contract. Why? After all, there is a lawyer’s signature at the bottom of the complaint… There is always the procedural-strategic ground: Plaintiffs wanted to avoid litigation in federal courts so they brought forward only state law claims. Beyond jurisdiction matters, this case is not about copyright in the first place. It is mainly about privacy, libel, and getting a piece from the pie. If so, CC cannot not breach a duty it does not owe. As an instrument meant to simplify copyright laws for authors who wish to encourage sharing and reuse of their copyrighted material, the CC license should clarify to authors the copyright consequences of choosing a CC license. However, the law cannot impose on CC a duty to educate potential licensors just about every possible legal consequence, including possible violations of privacy laws. It's simple common sense. No expensive lawyer could do that either.

In sum, dragging CC into this dispute was ill-advised. Other than generating bad press and having good chances to have that allegation dismissed, I believe that involving CC also obscures possibly justified claims that M may have against V. Moving beyond this particular case, I doubt whether the outcome here would have an important implication on the status and ramifications of the CC license in general. That is so due to the fashion in which P has framed his claims against V. CC deserved a better Feuertaufe in the courtroom (best translation I could find: "baptism by fire".)

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