Leslie Burns, a creative/marketing consultant to commercial photographers wrote a lengthy post on her blog about the American Society of Media Photographers’ (ASMP) recent “interactions” with Lawrence Lessig, the founder of Creative Commons author of several books on the Free Culture movement.

The ASMP is an organization she is close with, and she stresses that she still feels it to be a great organization with good people, she feels that their involvement with Lessig, who spoke at a recent ASMP event, is dangerous and that Lessig needs to be “ignored/silenced as much as possible” as he has “done more harm to small creative businesses than any other single human in the US”.

This viewpoint was punctuated by a commenter to the post, Don Giannatti, who described Creative Commons as a “thinly veiled rights grab”.

This post is just the most recent example I’ve seen of the hostility toward Creative Commons in many creative communities. However, it is a hostility that I don’t fully understand.

Yes, freely available works have hurt many freelance and small artists, I understand this well, but Creative Commons did not create this problem, much of this is simply due to the Internet itself and would still be a problem even if CC disappeared tomorrow. In fact, without the licensing structure of Creative Commons, the problem could be much worse.

While I’m not saying that CC has been a great thing freelance artists, at least those with business models that don’t work with it, it isn’t the pariah that many have made it out to be either. The truth is much more humble than that.

A Strange Rights Grab

The thing about Creative Commons is that it is completely opt-in. If artists and content creators did not want their works licensed under a CC they simply had to do nothing and default copyright would apply. Even though Creative Commons is not for everyone, perhaps not even most, it is clear that many artists, of all types, do want their works licensed under less restrictive terms.

In fact, this behavior was going on well before Creative Commons. But rather than having formal, proper licenses for their content they were simply adding footnotes to their work saying things like “You are free to copy my work so long as you give a link back”, for example. Some were even going so far as to dedicate their works to the public domain.

These licenses are flat out dangerous as homebrew licenses by those without knowledge of copyright issues are, almost universally, flawed and can either fail to achieve their goal or give away more rights than intended.

The Creative Commons organization saw a need and filled it. Group A wanted to share their work, Group B wanted to be able to use shared work, but the law was in the way. The CC Organization created a series of licenses to act as a bridge between them. However, these two groups existed before CC and would exist after it disappeared and they would still find ways around the obstacles created by the law, they would just lack a pretty, easily understood tool to do it.

That, in turn, would create new problems including greater copyright confusion, poorly written licenses that give away additional rights and legal uncertainty for all involved. This type of climate would further taint the copyright pool and that would, in turn, hurt all copyright holders, CC or not.

However, what is truly confusing is how Creative Commons is a rights grab. It’s hard to “grab” rights that are freely offered and it is even unclear who is doing the grabbing. Some point the finger to corporations but I rarely see corporations using CC photos and, when they do and it makes the news, it’s usually because of a non-copyright-related disaster.

Corporations have been shy about CC licensing, largely due to the strict attribution requirements. They can afford the small amount required to properly license stock content and do so. However, smaller Web sites have been grateful, preferring CC-licensed images over paid content to make ends meet in their thin budgets.

It’s Not Just CC

Though it is true that Creative Commons is the most popular means of legally sharing free content on the Web, it is far from the only. Sxc.hu, for example, is a free stock photo site that is both immensely popular and doesn’t use CC licensing at all. There’s also a slew of free article Web sites, such as Articlesbase, that do the same thing with text content, once again without CC licensing.

These aren’t sites that are part of the “Free Culture” movement by any stretch. Much of the content is submitted by professional writers and photographers hoping generate some free promotion for their paid work, but they fill much the same gap.

So while some blame CC for being the worst thing to happen to smaller artists in generations, much of the problem seems to be attributed not to CC, but to the Web at large.

After all, the Web has given countless casual artists a voice and a broad audience. Many of these artists feel little need to commercially exploit their work and, instead, are just happy to let others use it with certain restrictions. Those desired restrictions vary from person to person, thus why CC created six different licenses, but the idea remains the same, there are certain uses of their work many people are not interested in compensation for and, often, wish to actively encourage.

In short, Creative Commons didn’t “create” the legions of free content available, but rather, just made it easier to search for and license correctly.

CC As a Lightning Rod

In reading the comments, much of the backlash against CC is really more directed at Lessig and the larger free culture movement.

I’m the first to admit that I don’t agree with everything Lessig has said, his favoring of copyright formalities being one my biggest sticking points, but there are others who are far, far more extremist than Lessig on copyright issues.

Lessig has always considered himself a supporter of intellectual property, and backs this up in his writing, but he favors reforms to the current system. However, where Lessig still believes in copyright, there are others who don’t believe copyright should exist at all or that copying should never be against the law, under virtually any circumstance.

The problem is pretty simple. The copyright wars have been divided sharply into two camps. The freedom-stomping content creators and corporations who don’t understand the Internet and the thieving pirates who don’t want to pay for anything, or so that’s what you read on the relative sites.

Copyright centrists, whether right or left leaning, get lumped into one of those two camps and it seems many have thrown Creative Commons in with the pirates. This is unfortunate as it stifles much of the legitimate copyright debate and only sharpens the divide between the two sides, making compromise even more difficult.

We saw this a great deal in Andrew Keen’s book, where he frequently considered Lessig a copyright abolitionist, and it is a common mentality of others on the Web.

However, this lumping makes Creative Commons an excellent lightning rod. A publicly acceptable and “hip” face of the “pirate” movement. It’s an easy target though one that is often misunderstood.

Bottom Line

In the end, the ASMP was taking a very bold, but necessary step in inviting Lessig to speak. Serious dialoge about copyright is urgent if the situation online is going to get any better. Everyone has to listen with open minds and think of real solutions.

There is no magic bullet, no easy way out. Any real answer is going to be messy and involve sacrifice. However, these are issues that can be solved.

But for that to happen, we have to stop seeing copyright as a black and white issue and look at it as a shades of gray issue. There are no two sides, but many sides and almost everyone, most likely, has at least some of the answer.

Until we start comparing notes with open ears, I don’t think we’ll ever find the real solution.

It is Friday again and that means that it is time for another episode of the Copyright 2.0 Show.

Due to the holiday weekend it was something of a slow week for copyright news so Patrick and I decided to try something new. We spent some of podcast taking your questions and also getting your opinion on the stories as well.

All in all, there were eleven stories this week including news from all over the copyright world including our “Weird Story of the Week”.

This week’s stories include:

• ISOHunt Loses, Then Goes Lite
• Stan Lee Wins His Copyright Dispute
• Judge in Fairey Case Demands Information
• Photography/Artist Organizations Plan to Sue Google
• La Dolce Vita Porn Parody Spared in Court
• And Many more…

You can download the MP3 file here (direct download). Those interested in subscribing to the show can do so via this feed.

Show Notes

About the Hosts

Jonathan Bailey

Jonathan Bailey (@plagiarismtoday) is the Webmaster and author of Plagiarism Today (Hint: You’re there now) and works as a copyright and plagiarism consultant. Though not an attorney, he has resolved over 700 cases of plagiarism involving his own work and has helped countless others protect their work and develop strategies for making their content work as hard as possible toward their goals.

Patrick O’Keefe

Patrick O’Keefe (@iFroggy) is the owner of the iFroggy Network, a network of websites covering various interests. He’s the author of the book “Managing Online Forums,” a practical guide to managing online communities and social spaces. He maintains a blog about online community management at ManagingCommunities.com and a personal blog at patrickokeefe.com.

1: Google to Face Copyright Lawsuit By Visual Artists

First off today, Google will soon have to face yet another challenge over its book search offering. The American Society of Media Photographers (ASMP) as well as other visual artists are preparing to sue Google for the use of copyrighted images in the book search product. This comes after Google and the Author’s Guild have been working on a settlement in a similar lawsuit involving the text of the books that are included. That settlement is meeting with stiff opposition from competitors and the Justice Department alike.

2: Murdoch Tells Old Media to ‘Stand Up’ to Google, Bing

Next up today, Rupert Murdoch, the owner of the Wall Street Journal as well as many other papers across the globe, is trying to rally “old media” to make a stand against search engines, which he accuses of building a business on the back of their content without renumeration. He announced a plan to put all of his sites behind a paywall and hinted at plans to block Google and has done so with some of his papers already, though not the WSJ at this time.

3: Film Pirater Dies of Drug Overdose

Finally today, Gérémi Adam, a Montreal man who was the first Canadian to be jailed for pirating movies, died a week after his release due to a suspected overdose. According to his girlfriend, with whom he was living, Adam had become addicted to morphine while in prison and had used it since his release, possibly leading to his death. Adam served one week in prison on the piracy charge since, at the time of his sentencing, he was already in prison an unrelated charge.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

According to the ASMP, the new bill offers much better protections for photographers than the 2006 version and that “the House bill is about as good as photographers are ever going to get.”

They go on to say that:

“If the bill is not passed this year, it will return in the next session of Congress, when at least one of the crucial subcommittees will be under different leadership. Based on the track records of the legislators who are in line for leadership, it is almost certain that they will write legislation that is far less friendly to copyright owners than the current leadership.”

At an ASMP event in April, Vic Perlman, the general council for the organization, gave a talk at one of their forums about the orphan works legislation and why the ASMP supports it. He also gave advice for artists, which closely mirrored my own.

The video is embedded below.

Obviously this kind of support behind the bill greatly increases the chances of passage. It was trade groups such as the ASMP that were largely responsible for the first bill’s death. However, other trade groups, including the Illustrators Partnership of America, Advertising Photographers of America and American Society of Illustrators Partnership, do not share the stance of the ASMP and continue to oppose the legislation strongly.

I will update everyone on the bill as it progresses. However, this will likely be the last item on orphan works for a while, at least until there is progress in the two bills.

Hat tip: Special thanks to Jim M. Goldstein for the heads up.