SIVACRACY.NET

Photographer Dan Heller has doubts:

I have never contributed the songs I've written and published, and yes, sold (which can be heard as the background of my time-lapse photography videos I've posted on youtube), nor have I ever contributed my photography to the Creative Commons.

The reason is because the Creative Commons—and the entire concept of "free access"—simply doesn't work for photography as it does for other things. In fact, it is such a bad fit, that the deteriorative effects harm everyone it touches, including the objectives (and the credibility of) the Creative Commons itself. Explaining why involves understanding how copyright law works, where liability and culpability lie for infringements, and how photographs can be easily and massively misappropriated in ways that can catch someone unwittingly off guard. This all can happen in very large proportions that become far too unmanageable to maintain integrity of the system.

Here is a very simple example:

1. A pro photographer places a copyrighted photo on a website for sale (his own, or a stock photo agency's).
2. A random 12-yr-old internet surfer finds the photo and places it on his Flickr photo stream, removes the copyright text, and gives it a Creative Commons attribution.
3. A photo researcher at Big Company Inc. sees the photo and the Creative Commons license, and uses it in an ad.
4. The original photographer sees the ad, files an infringement claim.
5. Even though Big Company Inc believed it was acting in compliance with the license, the law doesn't allow for this defense. It is still culpable, and is subject to fines ranging from $750 to $30,000.
6. The 12-yr-old is technically liable for Big Company Inc's misfortune, but let's face it—no one's going to go after him.
7. Big Company Inc's lawyers now institute a policy of never trusting a photo having a Creative Commons license.

I have two quick thoughts on this. First, this hypo depends on the 12-year-old misappropriating the original photo. That's an infringement regardless. If the kid is savvy enough to apply a CC license to the photo, he would have to explicitly choose terms that allowed commercial exploitation.

The thing is, the same result occurs if CC did not exist. Copyright is a messy, imperfect, clumsy regulatory system. That's its weakness and its virtue. CC cleans it up a lot by clarifying and formalizing authorship and intentions.

So if people behave properly and obey the law, CC makes copyright work so much better. If rabid 12-year-olds go to all the trouble of downloading hi-res photos (and what dumb pro photographer is posting those?), stripping metadata, adding more metadata, and posting to Flickr (why post someone else's photograph?), then CC does not help. But it does not hurt.

I don't want to detract too much from this long and interesting essay. There is much to think about in it. Heller clearly means well. But I don't think he appreciates the fact that clarity and simplicity are needed virtues in the copyright system. Before any other, those are CC's greatest contributions to culture and commerce.