The Problem with False Creative Commons Licenses

cc-nc-hugeYesterday, Pamela Vaughan at HubSpot wrote about a legal threat her company had received over an image she had used in an earlier entry.

According to the letter, which came from an unidentified stock photo company, her blog had unlawfully used two images owned by them on their blog. However, Vaughan, who wrote the entry in question, was confused as she strives to only use images she has the rights to, including buying microstock images and using some Creative Commons-Licensed works.

Unfortunately, it was the latter that brought about the threat. According to Vaughan, she had used the images under a Creative Commons License but the person who placed the images in their Flickr account did not have the license to use them, much less relicense them under CC-terms.

The result is that both Vaughan and HubSpot are both dealing with a legal threat despite their attempts to be legitimate and the rest of the Internet gets a stark reminder, that the CC-licensed work you’re using may not really be CC-licensed at all.

While this problem isn’t a common one, with the increased use of Creative Commons Licensees, it is going to be a growing one and something that everyone who uses CC-licensed material should be aware of.

The Nature of the Problem

The truth is that the problem is not limited to Creative Commons Licenses nor to free licenses in general. Even if you pay for a license to use a work, you can still be bit by this problem, even if Creative Commons Licenses may be the most common way this issue manifests itself.

The issue is that for a person to put a work under a CC license, or any license, they have to be the owner of the copyright in that work. The problem is that more and more work is passed around online by people other than the copyright holder, often without permission and they often place the works they post under a CC license, regardless of whether or not they have the right to do so.

There are a lot of reasons for this, including:

  1. Accidental Licensing: It’s easy to set up many photo sharing accounts to automatically place all uploaded images to be CC-licensed. Some forget to turn that off when they’re uploading images they don’t hold the rights to, even if they are uploading content legitimately.
  2. Unclear on How Licensing Works: Some mistakenly believe that because they have a license to use a work, they own it and can relicense it as they see fit. Likewise, many are confused about what CC-licensing is and does and might think it can be applied to works they don’t known or have a license to.
  3. Intentional Licensing Misuse: Others, though they might be perfectly clear about the terms of the license and what putting something under a CC license means. They ignore those terms and violate law maliciously, whether to serve their own purpose, cause confusion among users or harm the copyright holder.

Fortunately, malicious misapplication of licenses appears to be relatively rare. Most issues are caused either by confusion or by simple thoughtlessness. But regardless of the reason for works to be mis-licensed, they have an equal opportunity to cause problems for those who might seek to use them.

However, while the cause of the problem is clear, the solution is much less so. Largely because there is no way to completely solve the issue, no matter what.

Solving the Problem

The truth is that there is nothing stopping someone who wants to infringe copyright from taking a work and placing it under an open license, or any license for that matter. If you don’t care about legality, you can just as easily put a CC license on an image or upload it to a stock photo site and sell it to unsuspecting buyers.

Fortunately though, those particular cases are still extremely rare. Very few infringers are trying to re-license works maliciously.

That means there is a lot of good that can be done by striving to prevent accidents and mistakes and part of that means educating users as to what a Creative Commons License means and when it can be used.

Services take various approaches to this right now and the approaches vary from providing no guidance to spelling out the terms clearly. However, there’s obviously a need for more services to step up and offer more clear documentation.

This might be an area where the Creative Commons organization itself can help by providing draft documents for services and programmers that integrate CC Licenses into their tools. These documents would be user-facing, warning users of exactly what it means to select a CC License for a work and what they are saying about it.

Beyond that, especially in environments where people upload a hybrid of content they create and from elsewhere, there’s a potential to create an option that lets users designate whether they created a work or not. This could be used not only to prompt a fair use challenge, to ensure that the upload isn’t infringing itself, but also remove the Creative Commons License if one would have automatically been applied otherwise.

Basically, it’s all about taking steps to ensure that the person applying the CC license both knows what the license means and that they have the right to apply it. While they can’t stop someone from sabotaging these checks, they might prevent some mistakes.

However, the bigger problem is that these steps increase friction in applying the licenses, adding clicks and steps. Services aren’t too keen on making things more complex for users, even if the additional information can help avoid copyright problems down the road.

All in all, the confusion is likely to grow…

Bottom Line

The good news is that, HubSpot aside, these problems are still relatively rare. Though such mistakes and problems probably happen more often than are realized as few rightsholders are actively setting about tracking and threatening over images beyond the major stock photo sites.

Even then though, the stock photo sites are primarily targeting business, large and small, where they hope to be able to get money. So if a false CC-licensed image winds up on a personal blog or a site, the odds of there being a problem are small.

However, that doesn’t mean it’s going to stay that way. As more images (and other types of content) are mistakenly or maliciously placed under false licenses, the issue is going to grow.

HubSpot may have a fairly unique problem right now, but it won’t be unique for long.

For those using CC-licensed works, my advice is simple: Keep track of where you find things, use the licenses correctly and try to check out your sources the best you can. If a Flickr account, for example, looks suspicious, don’t pull from it.

Sadly, there’s no easy way to avoid this problem because, as shown in the link above, even major stock photography sites can have plagiarism issues.

Your best bet is to comply with the law as well as you can, keep good records and remember this is at least a small danger.

After all, whenever you use the work of someone else, there’s always a danger that person is lying to you. There’s no way to avoid that completely, just to be prepared for it.