September 22, 2007  ·  Lessig

Slashdot has an entry about a lawsuit filed this week by parents of a Texas minor whose photograph was used by Virgin Australia in an advertising campaign. The photograph was taken by an adult. He posted it to Flickr under a CC-Attribution license. The parents of the minor are complaining that Virgin violated their daughter’s right to privacy (by using a photograph of her for commercial purposes without her or her parents permission). The photographer is also a plaintiff. He is complaining that 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.” (Count V of the complaint).

The comments on the Slashdot thread are very balanced and largely accurate. (The story itself is a bit misleading, as the photographer also complains that Virgin did not give him attribution, thereby violating the CC license). As comment after comment rightly notes, CC licenses have not (yet) tried to deal with the complexity of any right of privacy. The failure of Virgin to get a release before commercially exploiting the photograph thus triggers the question of whether the minor’s right to privacy has been violated.

I’m not allowed to comment just now about the merits of the lawsuit. So I won’t. But I did want to comment about some obvious, and not so obvious points triggered by the suit.

First, and obviously, CC has worked, and will continue to work, to find ways to make the meaning of our licenses clear. Our aim is to provide licenses that do what the copyright holder wants. If the licenses are not clear, then we can’t achieve our aim.

Second, our desire to make our licenses clear far exceeds any obligation that may be imposed by the law. We’ve tried to make copyright simpler than Congress did (at least for the vast majority of those now regulated by copyright) (See, for example, the efforts we’ve taken to simplify the right of a copyright holder to terminate a transfer of his rights.) So too do we try to make the meaning of our licenses simpler than any standard that might be required by the law.

But third, this case does demonstrate that there is work to be done beyond the scope of what CC has tried to do so far. The CC licenses, for example, don’t purport to deal with rights of privacy. We’ve already begun to think about whether we should because of an iCommons node, or project, our chairman, Joi Ito, wants to launch called the “freesouls” project. Joi’s aim is to produce high quality images of interesting people, licensed under a CC-BY license. He certainly recognizes that means commercial entities (like Virgin) can use his photographs. But without a “model release,” such use is not simple. Making it simpler — for those who want to enable that simple use, both photographer and subject — is the objective of Joi’s project. Simpler either by a general release, or a simple mechanism to secure particular permissions. Again, the CC-BY license solves the permissions problem for all copyrights. But it does not solve the permissions problem for a publicity right, or a right of privacy.

Finally, 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.

Stay tuned for more as it develops.

September 21, 2007  ·  Lessig

On Tuesday I give my first cut at this question of corruption in a public lecture at Stanford.

One part of my research leading up to this talk has led me to redescribe what before I was calling the “Noncorruption Principle.” I now think a better way to describe this idea is with the notion of “independence.” The aspiration I would commend is to maintain independence.

I hope to have a version of the talk available here afterwards.

September 21, 2007  ·  Lessig

The single most important lesson I learned when studying the pathologies of communist nations (my life, 1980-1994) was just how critical NGOs (non-governmental organizations) were: Strong, independent sources of moral authority that could check and criticize powerful governments. I know few see lawyers in that role anymore. I’m not one of that few. In my view, lawyers have a critical role in protecting the rule of law — not just technically, but ethically, and culturally. It is our job to remind a nation of the ideals that underly a rule of law state.

It was with great pride then that I watched this fantastic talk by the new ABA President, William Neukom. I’ve had my disagreements with Mr. Neukom in the past. But there’s nothing in this talk that I disagree with, and there’s everything to praise. Watch especially the Q&A. And especially especially the answer about access to the legal system by the poor.

September 5, 2007  ·  Lessig

The 10th Circuit decided our appeal in Golan v. Gonzales today. In a unanimous vote, the Court held that the “traditional contours of copyright protection” described in Eldred as the trigger for First Amendment review extend beyond the two “traditional First Amendment safeguards” mentioned by the Court in that case. It thus remanded the case to the District Court to evaluate section 514 of the Uruguay Round Agreements Act (“URAA”) under the First Amendment, which removed material from the public domain.

This is a very big victory. The government had argued in this case, and in related cases, that the only First Amendment review of a copyright act possible was if Congress changed either fair use or erased the idea/expression dichotomy. We, by contrast, have argued consistently that in addition to those two, Eldred requires First Amendment review when Congress changes the “traditional contours of copyright protection.” In Golan, the issue is a statute that removes work from the public domain. In a related case now on cert to the Supreme Court, Kahle v. Gonzales, the issue is Congress’s change from an opt-in system of copyright to an opt-out system of copyright. That too, we have argued, is a change in a “traditional contour of copyright protection.” Under the 10th Circuit’s rule, it should merit 1st Amendment review as well.

I suspect this decision will weigh heavily in the Supreme Court’s determination whether to grant review in the Kahle case. It also nicely demonstrates the wisdom in this part of the Eldred decision (don’t get me started on the Progress Clause part of the decision…) The rule of Eldred, as interpreted by the 10th Circuit (and by us) is that Congress gets a presumption of First Amendment constitutionality when it legislates consistent with its tradition. But when it changes that tradition, its changes must be scrutinized under the First Amendment. This is an interesting constitutional argument — echoing some of Justice Scalia’s jurisprudence, as we argue in the cert petition. And it also makes a great deal of sense: practices unchanged for 200 years are less likely to raise First Amendment problems (but see …); but whether or not immunity is justified for them, it is certainly not justified for practices that deviate from Congress’ tradition.

The opinion by Judge Henry is well worth the read. The argument was one the best I have seen. All three judges knew the case cold. It is a measure of how good courts can be that they took such care to review this case.

Thanks to everyone on our team that made this possible. First the clients — Lawrence Golan, the Richard Kapp Estate, S.A. Publishing, Symphony of the Canyons, Ron Hall and John McDonough (all of whom use and build upon material in the public domain; all of whom were negatively affected by Congress’s removal of material from the public domain). But also and especially to the gaggle of fantastic lawyers who supported us in the case — the Denver firm of Wheeler, Trigg, Kennedy, and Stanford CIS lawyers Chris Sprigman, Ed Lee, Jennifer Granick, David Olson, David Levine, Colette Vogel, Elizabeth Rader and Lauren Gelman (Tony Falzone came on afterwards).