Another student posted on the course blog: “A minor, represented in a suit filed by her mother in a Texas state court, is seeking damages against Creative Commons for what the plaintiff alleges is an unauthorized use of her image in a photograph downloaded from the Flickr website and used in a Virgin Mobile print advertisement in Australia. Flickr allows private individuals to upload photographs onto the website, generally to facilitate ease of sharing. The question at issue in this new lawsuit is whether or not Creative Commons had the authority to allow for the use of the pictures by Virgin Mobile. The cell phone company acquired the image from Flickr using the Creative Commons attribution-only licensing scheme. The license allows for the free use of the photographs by third parties without the permission of the subject of the photo or the photographer as long as the reproduction of the photo contains a credit to the link from which the photograph was originally taken.”
This brings up an interesting aspect of the law and the internet – what constitutes informed consent? Back in the days when you had to sign your name on a form, there was something more important-seeming about your action, and although I am sure that few sat down to read car insurance agreements, you can now sign your rights over without ever seeing the form. (as in when there is a hyperlink you don’t bother to click) In most cases, these are still “contracts of adhesion” and their terms not iron clad if examined by a court. Still, there are many contexts in which this can be used to a party’s advantage; for example, many users may assume the agreement is fully enforceable and never sue.
To go on a bit of a substantive tangent, this is a key part of malware fights. When companies distributing ad/spyware wanted to facially comply with regulations, they will have a fine-print disclosure of the installation of additional software that generates pop-up ads. They can then claim, as Zango did, that the users consented to the presence of that software on their computers in exchange for the free screensaver, Zwinky doll, or game they had willingly downloaded.
The problem was, the companies were doing everything they could to have the user consent without realizing it. They have the agreement in a separate document that you have to click to open, bury it under expected and unremarkable legalese terms, and sugar-coat it by using euphemistic terms to describe their great “bonus” toolbar. A key part of the Zango settlement with the FTC(warning: PDF) was that it get “express consent” to “clear and prominent” terms. (according to , they are falling short of compliance)
Just when is consent actually consent? When you have to click a checkbox agreeing to unseen terms every time you join a new site, it becomes almost an unconscious act.
Obviously the Flickr agreement is not the same thing. They are not including the license for selfish or devious purposes, and those who have been hanging around Benkler’s class and the Berkman center have probably gotten the impression there are great benefit to having more things in the Creative Commons. To boot, CC is not the default; I just checked my own account, and fortunately have “All Rights Reserved” on the photographs that my professional photographer friends gifted me for my wedding.
But how much did ChewyWong really think about what she was agreeing to? Did she contemplate being mocked on bus stops in Australia? Have we made it too easy to give away our rights? In a world where the casual style of homemade Flickr photos is a hip advertising style, this question becomes more and more relevant.
Interestingly, I forwarded a few friends the website of a renaissance faire I was planning to attend. On the top of the page were a pair of eyes peeking out from a ninja wrap. A response from my friend, who is president of a database programming company: “Wow, that is my picture. And I don’t even know who these people are.” Perhaps it had been taken from a similarly CC endorsed photo site, perhaps it did not. It doesn’t really matter – it never occurred to him to sue. We’re not all Fields, waiting for the opportunity to seize on our rights and make a profit – in the real world people often let these things go. If Virgin does get sued, regardless of the outcome, perhaps their main mistake was not the picture, but the caption.