[GOAL] Sharing and reuse - not within a commercial economy, but within a sharing economy

[Heather Morrison]

The title of this post is a direct quote from Larry Lessig - see below for context. 

When policy makers are requiring the use of CC licenses, particularly the more liberal licenses allowing for blanket downstream and commercial rights, they should be aware of the potential problems as well as the benefits of this decision. In addition, those who are impacted by the policy should have access to good information about potential risks.

For example, policy makers should be aware of this lawsuit in the U.S. Although I understand the suit was subsequently dropped, it is an illustration of how easy it is for someone to use CC licenses without having the appropriate rights in a way that causes problems and distress for multiple parties:
http://www.lessig.org/2007/09/on-the-texas-suit-against-virg/

In brief, a photographer took a picture of a young girl and posted it to flickr using a CC-BY license. Virgin Mobile liked the picture and used it in their advertising campaign. The girl and her parents were not happy and took action against Virgin, the photographer, and Creative Commons (the suit against CC was dropped early on). There are privacy as well as copyright issues involved.

Lessig's advice? "this case does again highlight the free culture function of the Noncommercial term in the CC license. Many from the free software community would prefer culture be licensed as freely as free software — enabling both commercial and noncommercial use, subject (at least sometimes) to a copyleft requirement. My view is that if authors so choose, then more power to them.

But this case shows something about why that objective is not as simple as it seems. I doubt that any court would find the photographer in this case had violated any right of privacy merely by posting a photograph like this on Flickr. Nor would any court, in my view, find a noncommercial use of a photograph like this violative of any right of privacy. And finally, as the world is just now, while many might resist the idea of Virgin using a photograph of theirs for free (and thus not select a license that explicitly authorizes “commercial use”), most in the net community would be perfectly fine with noncommercial use of a photograph by others within the net community.

The Noncommercial license tries to match these expectations. It tries to authorize sharing and reuse — not within a commercial economy, but within a sharing economy. It tries to do so in a way that wouldn’t trigger at least most non-copyright rights (though again, most is not all — a CC BY-NC licensed photograph by a voyeur still violates rights of privacy, for example). And it tries to do so in a way that protects the copyright owner against presumptions about the waiver of his rights suggested by posting a work freely."

The British Sociological Association, in their submission to the RCUK policy implementation review, expressed concerns about the impacts of CC-BY licensing on "sensitive and confidential data". This case is useful evidence that this is a valid concern. Sociologists tend to work with people, including many vulnerable and traditionally protected groups (the young, the old, the disadvantaged, people with mental illness). The images, stories, etc., they choose to share with sociological researchers should not be released under licenses granting blanket downstream commercial and re-use rights. 

The RCUK evidence is posted here:
http://www.rcuk.ac.uk/research/openaccess/2014review/

best,

-- 
Dr. Heather Morrison
Assistant Professor
École des sciences de l'information / School of Information Studies
University of Ottawa
http://www.sis.uottawa.ca/faculty/hmorrison.html
Sustaining the Knowledge Commons http://sustainingknowledgecommons.org/
Heather.Morrison at uottawa.ca