Creative Commons, the Live Web, and quickie divorce info centers

Creative Commons, the Live Web, and quickie divorce info centers

Summary: Dennis Kennedy pointed me to Shelley Powers, who pointed me in turn to Slashdot and Professor Lessig. All concern a lawsuit pending in Dallas, TX against Virgin Mobile and Creative Commons concerning Virgin's advertising use of a minor's picture posted by the girl's youth counselor to Flickr under a CC-Attribution license (which permits commercial use).

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TOPICS: Legal, Telcos
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Creative Commons, the Live Web, and quickie divorce info centersDennis Kennedy pointed me to Shelley Powers, who pointed me in turn to Slashdot and Professor Lessig. All concern a lawsuit pending in Dallas, TX against Virgin Mobile and Creative Commons concerning Virgin's advertising use of a minor's picture posted by the girl's youth counselor to Flickr under a CC-Attribution license (which permits commercial use). The Flickr user/youth counselor/photographer is a plaintiff in the suit, contending Creative Commons failed "to adequately educate and warn him ... of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use."

Creative Commons has been sued for negligence, the catch-all of tort law. Someone is negligent when s/he fails "to act with the prudence that a reasonable person would exercise under the same circumstances." The plaintiff posits that Creative Commons had a duty to warn about what commercial use is and the fact an "Attribution" license permits it. Creative Commons should have little trouble demonstrating that assuming it even owes such a duty, the duty was satisfied.

Putting aside for a moment the Texas wild card ["Texas courts have twice ... held that simply providing some legal forms (wills, but not deeds) constitutes the practice of law,"], this claim should go nowhere. The Creative Commons "Before Licensing" page explains, in essence, why CC is the Live Web's quickie divorce information center. That is: it can help users accomplish a primary legal objective at a fraction (or none) of the cost that otherwise would be associated with the transaction, but it is not intended as, and does not purport to offer, anything but a one-size-fits-many solution. Creative Commons cautions users to "[m]ake sure [they] understand how Creative Commons licenses operate." In addition to the related explanations of the Attribution and Noncommercial license attributes provided by Creative Commons itself, Flickr (which interestingly isn't a defendant) advises users that the only restriction imposed by an Attribution license is that the user give the licensor credit. Flickr points users to relevant portions of the Creative Commons site for more detailed explanations and information. Flickr also requires users like the plaintiff in this suit to ensure they do not use the service to, among other things, "harm minors in any way," or post material they do not have a "right to make available under any law" or that "violates proprietary rights" of any party. Creative Commons similarly cautions users to make sure they have the authority to distribute works under the license they select, and of course tells them it is not a law firm, does not provide individual legal advice, etc.

From my admittedly noncomprehensive review of Creative Commons' FAQs and other information, it seems to me the site complies with the ABA's Best Practice Guidelines for Legal Information Providers (for that matter, non-defendant Flickr does so as well by linking to the appropriate Creative Commons material), and that should factor into any reasonableness test. Shelley believes this suit was inevitable, and she may be right, but I disagree with her about why it was to be expected. Creative Commons didn't invite this suit. Rather, it had the fortitude to provide a range of possible solutions to some of the problems raised by the miasma of our copyright system. Willingness to innovate in areas that lack a wealth of on-point legal precedent can always make you a target.

(Image by hitormiss, CC Attribution-2.0)

[Update, 9/26/07, 1:00 p.m.:] In an update to her original post, Shelley Powers points out, as I have here in the past, that it's possible for third parties to violate both copyright law and the terms of use for Flickr and/or its API. Something to bear in mind for both the users and misusers of Flickr (the latter of whom will inevitably, and this time correctly, be sued for such actions).

Topics: Legal, Telcos

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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  • Why is the suit against Virgin legitimate?

    I first heard of this case the other day while I was at work when a co-worker sent around an email. I work at an ad agency in Baltimore. The email I received instructed the agency not to use Flickr photos in any ads and included a link to a newscast video talking about this case. The newscast I had heard only spoke about the girl's suit against Virgin for including her photo in their ad without her prior knowledge or permission. My initial reaction to the suit was that it seemed to be on thin ground b/c I was pretty sure that Flickr clearly stated in its terms of service that photos posted on the site were fair use unless otherwise indicated through the use of Copyright or Creative Commons. I then went to Flickr's site to confirm this and couldn't except it definitely says that Yahoo has this right. Are the photos that do not use any of the above mentioned kinds of provisions fair use? Either way, the the party that seemed to be at fault here was the counselor who posted the photo without getting the girl's parents' permission (b/c the girl is underage) to do so and for not being aware of the fair use nature of the site, although I guess it turns out she is one of the people suing Virgin. When I read the email, I had likened this case to a hypothetical situation where my agency might go on to a stock photo site and purchase a royalty free photo with 2 people in it and use it in an ad. Then we later discover that the photographer never got permission from one of the two people in the photo and that person wants to sue. I would think that the responsible parties would be the photographer and possibly the stock site for not demanding to see a release or waiver form. But I would not think our agency or the company that we were advertising would be responsible b/c we acted within the terms set forward by the type of license we purchased for the photo. Am I incorrect about the scenario I described above or is something different about the Virgin case b/c they did not have to purchase a license or b/c Flickr photos are not actually fair use (or both)?
    RGozhansky
    • Wrong on both fronts

      <p>There's no assumption that 3rd parties may use photos posted to Flickr (or elsewhere) under the fair use doctrine. The assumption is that the works are fully protected by copyright unless an express license is granted.</p>

      <p>That's where Creative Commons comes in. By incorporating Creative Commons licensing, Flickr gives users the ability to apply an express license to everything they post (or not, if they so choose). There are no costs associated with using the licensed works; they are free to use, but you must pay careful attention to the terms of the license. If you use something for commercial use that is only licensed for noncommercial use, you've violated the terms of the license.</p>

      <p>You are correct that any copyright claims against Virgin are weak, because it was relying in good faith on a license that permitted the use in question. The plaintiffs' claims against Virgin, though, go beyond copyright to privacy. The interesting question is whether Virgin was right to assume there was no violation of the subject's privacy rights simply because it found the photo on Flickr. Contending that assumption was unwarranted is a stronger claim, though I don't pretend to know how it will come out.
      Denise Howell