Sign of Confusion by Alan Levine CC-BY

Last week there was an important US court ruling that helps to legally clarify the freedoms and limitations of Creative Commons licenses. While it is a US court ruling, I think the ruling is still useful here in Canada as the global body of legal decisions involving  CC licenses is fairly small, so any legal interpretation is a useful thing.

In essence, the court decided that a company that used a CC licensed photograph did not violate the photographers copyright to that photo because the photographer licensed their photo with a CC-BY-SA (Share-Like) license, and the company did not use the photo outside of what the CC-BY-SA license allowed. Or, as the TechDirt byline nicely states “from the but-I-didn’t-think-anyone-would-do-the-thing-I-told-them-they-could-do! dept”.

A photographer named Art Dragulis uploaded a photo to Flickr with a CC-BY-SA license. A company called the Kappa May Group then took that photo and used it as a cover image on an atlas they produced and subsequently sold. Dragulis said that Kappa May violated his copyright by using his photo on the cover of an atlas that they then sold. He also stated that Kappa May didn’t attribute him correctly.

The court, however, disagreed with the photographer, saying that the -SA license does not prevent his photo from being used for commercial activity, primarily because CC licenses have an explicit Non-Commercial clause that he could have applied instead of the -SA clause.

The court ruling also supports how I have always interpreted the -SA clause, and that the -SA clause only applies to derivatives of the original work, and not to a collection that the original work is used in. That is, the original licensed item must be modified in some way that makes it different than the original before it needs to be shared back with a CC-SA license. In this case, the original photo was not modified and was used without alterations, so there is no obligation for the atlas company to re-share the photo. Nor is there a requirement for the company to release the entire atlas with a share-alike CC license as the ruling states that the atlas is not a derivative of the photo simply because the photo was used in the atlas. Instead, the courts considered the atlas a “collection” and the cover image is simply one item in that collection, therefore the entire atlas does not have to be released with a CC-BY-SA license.

This is important because this case will help people understand how items licensed with the -SA clause can be used. This has always been a bit tricky for people working with -SA licensed materials; if I use something with an -SA clause, do I have to release everything I create with that -SA licensed material with an -SA clause? As this ruling shows, no, you do not.

Additionally, it shows that an -SA work does not undercut the financial incentive for someone to use your work, thus somehow “protecting” your work from being used for commercial purposes.  For example, in this case, the photographer may have mistakenly believed that, by adding an -SA license to his photo, that he was removing the commercial incentive for anyone to profit from his work. That is, anyone *could* use his photo for commercial purposes, but they would then also have to freely make available a CC-BY-SA licensed version of their work, thus undercutting their own commercial use of his work. Why would a commercial organization use -SA content when it just meant they would have to release what they created for free? As this court ruling shows, this is not how -SA works when the -SA item is used in a collection and you can use -SA content for commercial purposes when used within a collection.

But more broadly (and more importantly) I think that this case hilights the general disconnect with how people expect (or hope) a CC clause works, and how that clause may actually work. Another recent example of this disconnect is the kerfuffle Flickr found itself in when it announced that it would sell wall art based on 50 million CC licensed photos that had been uploaded to the site by Flickr users. After the community protested, Flickr backed down even though Flickr had the legal right to use those photos under the terms of the CC licenses.

Now, I agree that just because you have the legal right to do something doesn’t mean you should just rush ahead and do it, especially if you are a major corporation. Flickr could have handled this better and rolled their program out in a way that would have benefited both Flickr and the community. I mean, c’mon Flickr, why not compensate the photographers who have their photos used?

But commercial use, like the -SA clause, is one of those clauses that has always been a bit tricky because what is “commercial” is often interpreted in different ways. For some, releasing content with a non-commercial (-NC) clause means absolutely no commercial activity whatsoever. For these purists (for lack of a better term), anyone using their content for any reason where money changes hands is not ok. For those purists who licenses with an -NC license, this may mean even using their photo in a way that might say, raise money for a charity or a non-profit, or offset legitimate costs, like the cost of printing is a no-go.

For others who choose the -NC clause for their material, they may define -NC more closely to the phrase “non-corporate” than “non-commercial” in that they don’t want something they create being used by a private company, but would be ok for a charity or another educator or a non-profit to use for something like fundraising. Still others use -NC to mean “not for profit” but would be ok with charging for a cost recovery. To the point, -NC is an attribute that is open to interpretation, and people often interpret it through their own lens and context.

While there are certainly prevailing attitudes within the CC community as to how to interpret the different CC clauses, the fact remains that working with CC licenses is theoretically simple, but practically complex because we are dealing with law and law is complex. And while CC per se is not law, it does have legal implications because it is so closely tied to copyright law.

Which is why I think that this court ruling is important. The wider CC community needs more legal decisions like Deagulis vs Kappa May to help bring greater certainty and clarity to the many nuances of working with CC licenses. More clarity through legal decisions helps to clear up some of the ambiguity, which ultimately makes it easier to work with the licenses because the community then has something very clear to point to and say, “this is what -SA means”.

Kevin Smith at Duke University has an excellent post about this specific case.