Category: Legal, Laws, and Regs

Categories
Copyright Legal, Laws, and Regs

Creative inevitability

It was a sense of inevitability that I read about the lawsuit against Creative Commons and Virgin Mobile, Australia. The suit came about because of the recent Virgin Mobile use of photos licensed for commercial use via a CC license.

Not surprising to read Lawrence Lessig’s optimistic look at the issue, though his segue going from a thoughtful look at where things went wrong to “everything worked as planned” is a rather interesting read:

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.

I began to write on my concerns about Creative Commons, as soon as they were released. Years ago, in response to a comment by Sam Ruby, I wrote about the potential problems for confusion associated with the CC licenses:

Sam, in the legal world there is no ‘seed’ planting. There is clarification or confusion.

Not all forward motion is positive. I’d rather see people hesitate on using the CCL, and the CC open a dialog with the community (through a weblog with comments or a discussion group or like), then to continue using the CCL, perhaps incorrectly, all based on wonderful sounding words and a cute movie.

I appreciate the nobility of the Creative Commons intent and effort. But I’d appreciate it more if they combined that with an interactive element that allows us all to understand better what it all means.

I guess we have a better idea of what it all means now. But I wrote that over five years ago.

In response to this issue, Suw Charman wrote:

I like to think that the world is based on goodwill. People are, generally speaking, nice and, by default, they will respect and help others. Certainly humans are fundamentally and inescapably social creatures that need each other on a minute-by-minute and day-to-day basis, and I think that being nice is one of the attributes that which fuels the reciprocation that makes helping someone else ultimately worth it for us ourselves.

I also think that the social web is an expression of the niceness that lubricates society. All the mores that have built up around blogging and wikis and sharing and Creative Commons are based on being nice: if you quote someone’s blog, it’s being nice to credit them; Wikipedia encourages everyone to be nice to newbies; sharing anything with strangers is an act of niceness in itself; and Creative Commons licences are predicated on the idea that people will be nice and respect them.

Whilst niceness isn’t universal – there are people who aren’t nice – it is a desirable attribute, so much so that niceness is taught and enforced from birth. I doubt there’s anyone reading this who wasn’t told as a child to “be nice” or to “play nicely”. Nice is good. We need nice.

This might explain why I get so cross when I come across examples of people, or especially businesses, not playing nice. But thanks to the internet, we now get to call out companies who, whilst sticking to the letter of the law (or Creative Commons licence), are flagrantly abusing its spirit.

The online world–Suw’s ‘social web’–is no different than the offline world: there are people who give all, and people who take all, and the rest of us in the middle just trying to get by. The online world–with its Creative Commons, Wikipedia, Citizen Journalism, Social Network/Web/Graph goodness–is no more ‘nice’ than the towns, cities, or hamlets we live in; it’s just newer is all and we don’t have to worry about landfill. Continuing to set any of this up on a pedestal only serves to generate a false sense of trust and security that inevitably leads to disillusionment.

In the post associated with the comment I quoted earlier, I wrote (with some modifications to grammar):

Pessimists see the world from its dark side—always the glass half empty. They never see that the world can be made better, or that problems can be solved. They’re not constructive, but they aren’t destructive, either.

Idealists, on the other hand, only see the light. In their world, the sun always shines (except for that bit of rain needed for the trees), the birds always sing, and humanity exists in harmony. They are pleasant, but they can also be destructive.

The idealist is destructive where the pessimist isn’t by introducing change without concern for the consequences. They say, “Look at this wonderful thing I have given you!”, but don’t provide the user manual. After you’ve managed to blow up a city block, when you look for the idealist they’ve moved on to another part of the world, to drop yet another idealism bomb on some unsuspecting poor sod.

Idealists. You gotta love em, because if you didn’t you’d want to strangle them.

Where this is all leading is the release this week of the Creative Commons licenses: those digital goodies that one can attach to our creative efforts to let others know if they can use these efforts in defined ways. Collaboration and community, 101. Like our idealist, the Creative Commons have dropped this little bomb in our lap and then left it up to us to determine how to use these things, and what they really mean.

Jonathon Delacour, who has been called, usually with respect and affection, many things but I don’t think ‘nice’ was one of them, shared some of my misgivings about the CC licenses. He wrote:

Picasso and Braque stood on each other’s shoulders as they invented Cubism but they were careful (and sufficiently smart) to maintain the copyright on their works. The Creative Commons Licenses, on the other hand, typify Thomas Sowell’s unconstrained vision of human nature by relying on people (“I’ve never met”) to behave honorably and to respect the integrity of my work. Spend five minutes on “this Internet” and tell me I’m not bound for disappointment.

I wouldn’t be so skeptical if the Creative Commons Licenses relied less on a rose-tinted vision of benign collaboration and instead provided greater safeguards for the real interests of those licensing their original works; or if, to borrow Thomas Sowell’s words, they replaced—to at least some degree—their “moral vision of human intentions” with a more pragmatic acceptance of the “inherent moral and intellectual limitations of human beings.”

In other words—and pardon my bluntness—what’s in it for me? Really? Other than distress and disillusionment?

It is this determination to manufacture an online Utopia, to hold fast to the rose-tinted vision that Jonathon described, of the Creative Commons–promoted by shrewd, sharp people who should have known better–that spurred me to write my criticisms years ago, and to continue to write on topic in the times since.

The Creative Commons web site has never, to my knowledge, responded to challenges, or discussion regarding the issues surrouding the licenses. When I derived a test of CC licenses, or when Creative Commons figured in a Dutch law suit, or Virgin Mobile grabbed several CC licensed photos from Flickr for its campaign, the Creative Commons community seemed to focus more on eliminating anything other than the type of license that caused the initial problems, rather than respond to the issues, or reflect on perhaps providing stronger warnings.

Ultimately, who really does benefit from the Creative Commons? Andrew Orlowski, who has never been referred to as ‘nice’ either, as far as I know of, wrote one of the most eye opening summations of the Creative Commons I’ve read:

Few participants who slap a CC license on their work understand that the mechanism was designed to benefit the network, not the humans, by removing “frictions” such as compensation or consent.

Some would say it is not the CC organization’s responsibility to answer the critics, to meet the challenges–that the organization doesn’t have an obligation to warn as much as it promotes. I say to stubbornly persist in wearing those rose-tinted glasses, to mark only the sunny hours, as the sun dial would say, is the ultimate irresponsibility. The Virgin Mobile lawsuit was inevitable, and it didn’t have to be.

It would seem that the online site Babble has been taking photos from Flickr, assuming they’re CC licensed, even when the photos they take are copyrighted by their owners.

No, I don’t blame CC. However, there is a growing assumption that photos at Flickr are CC licensed, and this is causing additional confusion. In addition, a CC licensed photo, even one designated as non-commercial, can be used in a magazine or newspaper, because that’s not necessarily considered ‘commercial’ use of the photo.

Just one of the many uncertainties and confusions around CC licenses, copyright, and fair use. That’s the main reason we shouldn’t be making it easier for people to license their work with CC.

Categories
Legal, Laws, and Regs

More on the Arbitration Fairness Act of 2007

The Consumerist has more on the Arbitration Fairness Act of 2007.

People Over Profits has an email campaign but it also helps to contact your Congressional rep directly. A letter of phone call also works wonders.

How important is this bill? There is no bill pending in Congress that scares Corporate America more than this one. There is no bill pending in Congress that could more help the American people than this one.

Due to rulings in the Supreme Court, mandatory arbitration agreements now trump the Equal Employment Opportunity Commission when it comes to employment discrimination lawsuits. This means that an arbitrator can make decisions based on civil rights, can do so without following the law, can do so without following the arbitration rules themselves, and can do so without any transparency into the decision process.

…after Sherri Warner lost her discrimination and wrongful firing suit in mandatory arbitration, a San Francisco arbitrator not only charged her nearly $16,000 for his time, he ordered her to pay her opponent’s legal fees of more than $207,000.

The fee award would probably not have been allowed in court, and it forced Warner into bankruptcy. But after her lawyer, Stephen Gorski, asked the arbitrator to explain his decision, the arbitrator refused when reminded no rules required him to do so.

Arbitrators rarely issue written opinions, making requests for review virtually impossible.

What’s scarier is that this case was ten years ago, and since then, the Supreme Court has given even more power to arbitration, including giving it power over ruling on employment discrimination that now supersedes that of the EEOC. The Supremes have even given it power over the law, itself. In recent case, one of my favorites, Buckeye Check Cashing vs. Cardenga, a man sued a check cashing company claiming that the conditions of the loan were illegal. The company, which had a mandatory arbitration clause, demanded that the claim be taken to arbitration. The state of Florida disagreed, saying that an arbitration clause that was in a contract deemed to be illegal is not enforceable.

However, our Scalia controlled Supreme Court doesn’t allow a little thing like an illegal contract deter it. It decided that it wasn’t up to the courts to determine the validity of an arbitration clause just because it happened to be in an illegal contract — the only item the courts could determine is whether the arbitration clause is, in and of itself, legal. The rest of the contract was then up to the arbitrator.

Question

Under the Federal Arbitration Act, may a party avoid arbitration by arguing that the contract in which the arbitration clause is contained is illegal?

Conclusion

No. The 7-1 majority (Justice Samuel Alito not participating) ruled that challenges to the legality of a contract as a whole must be argued before the arbitrator rather than a court. The opinion by Justice Antonin Scalia explained that “unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.” The Court held that the Florida Supreme Court had been wrong to rely on a distinction between void and merely voidable contracts, because the word “contract” in the Federal Arbitration Act includes contracts later found to be void. Justice Clarence Thomas dissented due to his long-held view that the FAA does not apply in state courts.

This is a frustrating topic for me, because I’ve watched over the years now as arbitration has eroded all of our judicial rights, as granted by the Seventh Amendment to the Constitution. It’s frustrating because I can’t seem to convey, in this weblog, how serious this can get.

A legal expert in Texas once said that he felt in ten years, there would no longer be a civil court system because of how much it is being eroded by an act that was basically put into law in 1925, as a way for businesses to come to ‘gentlemanly agreements’ in regards to a dispute. It was never intended to be used by corporations against the common citizen.

This is also a case of the breakdown of the system of checks and balances built into our government. The Supreme Court has empowered arbitration and supported mandatory arbitration to the point that it now is undermining the very nature of civil rights in our country, and was allowed to do so, unchecked, in the Republican controlled Congress.

Now we have a Democratic controlled congress. More than that, we have a congress where even many Republicans are beginning to look askance at the miscarriage of justice that occurs under the auspices of ‘arbitration’.

American Corporations do not want this Bill. American Corporations, who have delivered shoddy equipment, surly service, and bad faith consumerism.

Who supports this bill?

The Feingold-Johnson bill is supported by a host of consumer advocate organizations including Consumers Union, Public Citizen, American Association for Justice, Center for Responsible Lending, Consumer Federation of America, Homeowners Against Deficient Dwellings, Home Owners for Better Building, National Association of Consumer Advocates, National Consumer Law Center (on behalf of its low income clients), National Consumer Coalition for Nursing Home Reform, the National Employment Lawyers Association and Public Justice.

The list is only growing, as word of this Bill slowly trickles out.

Support the Arbitration Fairness Act of 2007. Please.

Categories
Legal, Laws, and Regs

Breaking the mandatory arbitration back

People over Profits has a campaign under way to encourage Congress to support this bill. It’s important to let your Congressional representative know you support the Arbitration Act of 2007.

Ars Technica and Tortdeform both write on the recent, and important, decision of Douglas v. Talk Ameria in the Ninth Circuit Court of Appeals. In the decision, the court ruled that companies may not change terms of service arbitrarily, forcing people into having to check for such changes in online agreements; then denied the motion to compel arbitration–one of the changes actually added to the terms of service that initiated the class action lawsuit.

This is important because it challenges the concept that a person has to be forced into visiting terms of service on some periodic basis in order to ascertain changes–a onerous task, indeed.

This is also an interesting case as regards mandatory arbitration clauses. I’ve written on this issue before, and the fact that online services are now slipping in mandatory arbitration clauses–joining the banks, plumbers, credit card companies, house builders, computer manufacturers (Dell being one of the most prominant), realtors, your employer, car dealers, hospitals and others who slip such clauses in, usually in small print, and buried among dozens of other changes, worded in confusing legalese–should help drive out that this isn’t ‘just’ a problem with deadbeats looking to skip out on debt or fakes wanting to sue the poor drug companies, as the pro-mandatory arbitration supporters insist.

I bet I can safely say right now, you’re covered under a mandatory arbitration clause right now that abrogates your class action and other civil and legal rights, and you don’t even know it.

What perfect timing, then, to segue into drawing your attention to the Feingold-Johnson bill, The Fair Arbitration Act of 2007, just introduced into Congress last week that would block mandatory arbitration clauses.

The issue has never been about whether arbitration is or is not a good thing. Arbitration entered into willingly by two equal parties, both of whom can argue the case without paying thousands in exorbitant fees in front of competent and truly unbiased arbitrator, is a good thing. Arbitration purely for profit, as a way of skirting the laws of the land and a form of bastardized tort reform, is not.

What the Feingold-Johnson bill is about is that people should be given a choice. This wholesale movement of companies forcing mandatory arbitration clauses, using for profit arbitration companies where cases are processed in assembly like fashion–six to an hour being typical–for fees far in excess of what courts charge, and typically favoring corporations over the individual (and disregarding many laws of the land, including the civil rights) is not a good choice.

I’d suggest contacting your congressional representatives and tell them you support this bill. After all, if arbitration is the good thing these companies say it is, then why do they need to add these mandatory arbitration clauses in the first place?

From American Homeowners Resource Center

In 1995, Justice Sandra Day O’Connor wrote: “over the past decade, the [Supreme] Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation.” Justice O’Connor was absolutely right.

Starting in the mid-1980s, the Supreme Court dusted off the Federal Arbitration Act (“FAA”) – an obscure procedural statute that had been the subject of only half a dozen or so Supreme Court decisions in 60 years – and transformed it into something bearing little relation to the law considered and enacted by Congress in 1925. Concerned with the workload of the federal courts, the Supreme Court discovered that the FAA could be used as an extensive docket-clearing device to move large numbers of cases out of the court system and into a system of private dispute resolution. The cases cleared out of the court system under the judicially re-tooled FAA have been disproportionately the claims of consumers, employees and small-business owners.

The real winners under the modern system of FAA arbitration are large companies who decide to write arbitration clauses into their “take-it-or-leave-it” contracts. Also benefitting from the modern FAA are the arbitration-providers and individual arbitrators who find a huge increase in demand for their services. What is, for the courts, a system of “do-it-yourself court reform” has increasingly become a system of “do-it-yourself tort reform” for regulated business entities seeking to avoid liability for wrongs done to consumers, employees and small-business franchise owners.

Excerpt from the testimony of David S. Schwartz, Associate Professor of Law at the University of Wisconsin Law School, before a congressional hearing on mandatory arbitration clauses held in June. The article also includes a link to the PDF for the complete testimony. The link in this paragraph is to the recordings from the event, including others testimony.

Categories
Copyright

Artists create, developers hack

From the email list associated with the Creative Commons group, I found an interesting thread, where it seems many members of the organization believe that the non-commercial option in the CC licenses should be abolished. As one person wrote, works licensed under cc didn’t really challenged the dominant market paradigm. especially the most of them are licensed under ‘noncommercial’ licence.

There was discussion in the thread about how new models for artists will arise someday, and the use of the non-commercial license is an opening wedge. As example, thread members discussed how the software community now embraces many licenses that provide for free use of software: licenses such as GPL (GNU Public License), which prohibits use of GPL licensed work in new efforts that will not be released GPL; as compared to other licenses such as free-BSD, which allows such. I’m not up for another debate on CC, but I did notice the following from the thread:

it will take a little longer until the success of works under CC-BY and CC-BY-SA will really challenge the dominant market players, but it will happen.

True that this would come sooner if the people wouldn’t need to go through a learning process that NC is not so necessary after all, but even the coding community took a while until they understood the workings of free software (even though they have much less heart and soul attached to their works compared to many artists)

My, aren’t we precious.

Categories
Connecting Copyright

Virgin bites Creative Commons on the butt

Wayback Machine entry for post including comments.

Rogers Cadenhead finds an ad featuring Molly Holzschlag. About my post, he wrote:

Shelley Powers puts the blame for this squarely on Creative Commons for not educating users of its licenses. If you release photos for commercial reuse, but you don’t secure model releases from people they depict, you’re subjecting yourself — and those who use your work — to a thorough proctological workup by an intellectual property attorney.

Actually, I never said any of this. I said that this demonstrates that people are confused about the commercial license, because why on earth would a person add this CC license when they don’t have model releases? Or really want the photos used in ads?

Virgin Mobile’s part in this is less interesting, to me, than the issue of people putting a for-commercial CC license on a work that can’t possibly be used without a lot of additional work for commercial purposes. I didn’t once say that Virgin’s use of the photos wasn’t without its own problems.

Additionally, I’ve looked at many of the photos used in this campaign. Why on earth would the people use the commercial license with these items? None that I’ve seen are anything more than casual snapshots.

I’ve written–oh, a time or two–on my concerns regarding the Creative Commons licenses. I’ve stated that they’re confusing, that people are socially pressured and overly encouraged to use such without understanding the impact, and that we don’t really understand how these licenses work with existing laws.

Doug Pardee sent me an email giving me a heads up on an uproar at Flickr about photos Virgin Mobile is using for an ongoing campaign. Seems that Virgin Mobile used Flickr’s CC licensed photo search engine to find photos that allowed commercial use. The company then used such commercially, including a photo of an underage girl without her or her parents’ signed consent.

What’s interesting is the debate on this, as people who aren’t lawyers ask each other what does ‘commercial use’ mean, and when can a person publish a photo of an individual and so on. There is still a massive misunderstanding about the terms used in these licenses, and little done on the part of the CC promoters to do anything other then grunt, “CC, Good!”

Even now, with this discussion raging over at Flickr, another Flickr Forum item discusses the Wellcome Trust decision to release its image collection under CC, and then references those on Flickr who don’t do the same, saying, “Compare the Wellcome Trust’s attitude to that of some of the photographers here on Flickr who consider EVEN educational use of their photographs to be GRAND THEFT PHOTO.”

I would assume that the Wellcome Trust had lawyers who helped in the decision to release photos, and did so with a very clear understanding of the license, the implication, and what the CC licenses mean in regards to existing copyright laws. Obviously, the same cannot be said for many Flickr users, and social pressuring is only going to make matters worse.

In many countries, including the US and Australia, commercial use of photos requires signed consent of identifiable people, and signed consent of a guardian if the person is under legal age. To me, commercial use does not mean that your photos will be featured in a magazine. It means that your photos will be featured in an ad, and used to sell something. However, the only example of commercial use the CC organization provides is one where a person takes a photo and someone else prints it and sells the print. These are two completely different acts. Does this mean I’m wrong? If I am, then how does one classify the use of a photo in a commercial? As editorial use?

To me, editorial/educational (non-commercial) use means that your photos can be used in magazines or to accompany newspaper articles, or in classes or other forms of instruction. Such use also means that your photos can be used to promote organizations and attitudes you may despise, or even hate, but that’s besides the point.

This is what I understand about the CC, but I’m only a layman, and only have a layman’s view of all of this. Don’t look to the lawyers for advice, though; they’re so hemmed in by the rigid and restrictive rules of their profession, I’m surprised they can even identify themselves as lawyers, much less give a public opinion on anything.

Definitely don’t look for clarification or even discussion on these issues at the CC site. This is the ultimate ‘feel good’ organization, where the world is full of happy happy people creating happy happy works sharing with other happy happy people who would never abuse such generosity.

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