September 26th, 2007
Creative Commons, the Live Web, and quickie divorce info centers
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). 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).
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. See her full profile and disclosure of her industry affiliations.
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| 10/08/07
