Sampling and online reuse are enormously common in our culture today. But if you really believe in making some of that culture freely accessible, it follows you must also make free licenses explicit. Simply taking something because it’s there isn’t fair to the person who created the content, whose rights should come first, and it doesn’t help advance the cause of free content. If we want content to be more freely accessible, we need to give first priority to those materials explicitly licensed for free use.

All of that is to say, we need to obey the law. And that’s generally been the goal on CDM.

Here’s the rub: while Creative Commons licenses show a lot of promise, they also have occasionally run up against vague definitions or not-quite-airtight license variants. Case in point: the “non-commercial” restriction commonly used by creators. Let’s say you upload an image to Flickr. Adding a “non-commercial” restriction seems logical enough as a way to protect yourself against your image being abused, right?

The problem is, when looking at the actual language of the license, the definition of non-commercial use is not clear. Here’s what the license says:

“You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. “

Source: the current full text of the license (3.0)

Is CDM’s usage of Flickr images with non-commercial Creative Commons licenses a violation of that license? It’s not entirely clear. While the site uses those images for illustrative purposes, and while the site carries ads from which we gather revenue, it’d be a stretch to say the use of the images themselves was directed toward monetary gain.

Ultimately, though, an ambiguous license isn’t good enough. To be able to use images without contacting photographers for their permission, we need confidence that the license is clear. And even if we were on legally good standing – and it’s unclear that we are – we would want to obey the intentions of the content creators.

The question of commercial status and the Creative Commons license led to a prolonged Twitter discussion between me and Chris Randall of Analog Industries and plug-in maker Audio Damage. Unlike CDM, the Analog Industries blog is copyrighted, not under a Creative Commons license, but Chris has used CC licenses in the past for his music. Chris’ argument was, in short, that CDM was in violation of the CC-NC license as the use constituted a commercial use. The obligation lies with me to prove otherwise, and based on the survey results, I don’t think I can.

I’m not the only person bothered by the ambiguity. Creative Commons has conceded that questions about commercial or non-commercial are some of the most common queries they receive. And the situation was ambiguous enough for CC to undertake a full survey of CC users and creators.

The results of this survey were published in September:
Defining Noncommercial

Read through the complete results, however, and the question of non-commercial status is murkier than ever. The most significant question for publishers (and many content creators) is at what point a site with ads becomes a commercial use. You’ll see the answers can vary wildly depending on how the question is asked, and what the respondent understands to be the usage case.

That said, now having fully read through the results, I think I have to change the policy on CDM. Having some people disagree isn’t good enough, and no matter how you ask the question, a significant number of content creators view sites with ads as commercial – no discussion. (Some even would classify sites by non-profits using ads to recoup hosting costs in this way!)

I’ve found Flickr users have actually been really enthusiastic to discover their work on the site; those are the comments I’ve gotten. Unfortunately, I have to balance that enthusiasm against the larger perception of the policy.

In short, if you’re placing images under an NC license, don’t expect to see them on CDM any more.

Photo (CC) Rosana Prada.

New CDM policy

From here on out, I will only make use of images that fit one of the following conditions:

  • Creative Commons licenses with BY, SA, or ND restrictions, but not NC
  • Public domain images
  • Images used as implied (such as press images, etc.)
  • Images used by specific permission

Videos are, of course, a different story, as the ability to embed these materials is assumed to mean an implied license, and I’ve never seen otherwise. Likewise, it seems that the use of Flickr tag slideshows and badges containing images – even copyrighted images – does not violate Flickr’s terms of service or the wishes of the copyright holder; this is in essence a view of the Flickr site itself, and should not diminish the value of a photographer’s work nor conflict with their likely intentions when they upload to Flickr.

There’s really no way to operate on the Internet without coming across some of these gray areas, but to me the spirit of the law and the intentions of the creators remains paramount.

2,500 CC-licensed images form a mashup in an image (CC) qthomasbower.

How to protect your work without Non-Commercial restrictions

This may raise the question, how do you prevent your work from being exploited while at the same time allowing a site like CDM to republish it? One of the “commercial” uses cited in the survey results is the rather nasty scenario of the spam blog re-purposing stories via RSS. There have been cases of CC-licensed Flickr images being used for ads in bus stops. (See the instance of Virgin’s ads, taken from CC-licensed Flickr images. Note, however, the controversy there – aside from whether they actually complied with the CC licenses – was whether they had the rights to the likenesses of people in those images, which is a different legal area.)

My answer, and the answer on which I’ve settled for CDM’s content: use a ShareAlike license.

What makes ShareAlike unique is that it requires any distribution or repurposing of your content to have the “resulting work only under the same, similar or a compatible license.” That means you couldn’t, say, make an ad out of your photo without placing the ad under the same license — effectively preventing some of the more nefarious uses of CC-licensed works.

I do think that Creative Commons needs to present more explicit, clear, legally-binding documentation for the Non-Commercial restriction in the actual license. But until then, if you’re bothered by this ambiguity, you can resort to the more unambiguous ShareAlike license term.

Note that CDM itself is under a ShareAlike license. Because it’s compatible with any of the other CC SA licenses, that also gives us the right to use SA-licensed content – and, incidentally, were we not licensed that way, we should not have that ability.

HELP US!

To bring CDM into compliance with the non-commercial license, I need your help.

Got some regex skills? A regular expression should be able to purge all the images in CDM’s story database with non-commercial CC licenses, because images link to the specific license used. It’s simply a matter of then pulling the img src, anchor, and image caption div code around that license link.

Get in touch or respond in comments.

Got an image you don’t want to see lost? You can search CDM easily by your name and/or Flickr userid and find your image. Then let us know:

Provide permissions for a CC-NC-licensed image [Google Docs form]

Correction: I can actually observe a number of images I’ve used over the years with links back to CDM from the Flickr pages. So this would actually be the worst possible thing I could do, to remove those images. Obviously, the better solution is to wait and see if someone requests that an archived image be taken down. The Creative Commons license itself is non-revocable, but since this falls into a gray area in which we may not even been in compliance with someone’s license, that’s a moot point. And since those images are clearly marked by license, any derivative work based on them could check first if the license permits derivations. (That’s something you’d have to do anyway, as some images on CDM are copyrighted and used exclusively on CDM by permission.)

As a separate note, I’m now going to go through my own Flickr accounts and remove the non-commercial requirement, because my sense is that ShareAlike will prevent the unlikely event of them being abused within the license terms.

Disclaimer: This story is an editorial, an opinion piece. It does not constitute a legal statement (I’m not a lawyer) or official, binding statement of Create Digital Music’s policy. It expresses only the opinions of its author.

  • http://frgm.net Bean

    For me, it's the word primarily in the license fine print that opens up the wiggle room. As I mentioned on Twitter, I don't mind my images being used to illustrate stories on independent blogs which are generally speaking not primarily commercial enterprises, but choose an NC license because I do feel uncomfortable with the idea of them being used in a way that is, well, primarily commercial. I think that this is because use in a commercial realm carries with it a sense of implied endorsement, even if such an implication is forbidden in the text of the license.

  • http://apeskinny.com spinner

    I have a feeling CC licenses have long been the butt of the joke among copyright lawyers.

    It's not terrible difficult tho, if a copyright holder have published their work under a CC NC license and they then find that the permission has, in their opinion, been violated they can simply ask the user to remove the work, if the request isn't heeded they then need to contact a lawyer and well yes, here starts the joke…….

    What right you have to use intellectual work is very much misunderstood in the internet world of today. It's not helped by the fact that most ad agencies et al, have had premium accounts with content providers making sure that their creative talent could just use pictures, music and so on, without having to deal with licensing issues. Most ad directors I know believe music should be free and without cost, but of course would be terrible upset if someone hijacked their work.

    Sample jockeys and the like are no better and it frightens me to see and hear how badly musicians respect artistic copyrights.

    Derivatives should most likely be introduced to music but as long as they haven't you're not entitled to use the work of someone else.

    I don't believe CC licenses are the solution to future copyright issues but I hope the efforts of the CC community and their users will inspire lawmakers to put forth the changes that are needed to enable media creators to be protected and get paid for the content they provide.

  • http://twitter.com/eesn george

    hey, (cc) is still better than copyright, which basically says "no, you can't" :]

    g

  • David Cake

    It is worth remembering that you can still use legally use NC licenced images under fair use – while most uses as simple illustrations might be not OK under fair use, there are some cases in which it might be OK, particularly if you are critically discussing an image in the article. (I am not a lawyer, etc).

  • Adrian A

    Another outstanding article Peter! I personally feel that you should be able to continue to do what you want with NC licensed works since you're not directly selling something with those works in them. The law however is a tricky beast, and one never wants to be a test case for a new legal frontier so I understand why you're backing off.

    Still the copyright absolutists who get technical about the specifics of NC versus regular cc just for the purpose of pointing out the weakness of the license give me a headache. They are annoying and just need to quit it. Not everyone wants to live in their hyper paranoid "these are my blocks I'm going home" world.

  • http://www.createdigitalmusic.com Peter Kirn

    @David Cake + others:

    Well, I had felt exactly the same way… until I began reading through all of the details of the survey results.

    Here's the thing. We don't strictly *need* these images on CDM. To me, in fact, they're a way not only of livening up the site, but also making connections to the folks who put up the images. Among the hard-core Flickr users, it's pretty common to check your referrer links every day when you log in, the same way I do on the blog. And just like blog links, you tend not to email each person individually.

    But the "commons" isn't much good if you're doing something not quite in line with the wishes of the creators. And the survey results seem to suggest that the perception of non-creative excludes sites with ads.

    Fair Use is therefore doubly problematic. Fair Use itself hasn't held up to any legal test lately. (In fact, I'd say you could argue Creative Commons *has* held up to legal challenges just as well as Copyright — indeed, the problem is the other extreme, that CC turns out to be less permissive in practice than it may seem.) But it's more than that. Let's face it, the odds of a site the size of CDM being the subject of a lawsuit are very, very low; you might get someone saying "take this down" and then comply, but rarely beyond that. (CC now has seen a couple of legal actions, but only with large publishers.) The issue is really that you want to obey the wishes of the creators, because otherwise there's not much point.

    So I can really only conclude I'm contributing to the problem. Now, maybe going out and removing non-commercial CC images is going a bit far. But certainly, moving forward, for this reason it seems to put my money (or lack thereof) where my mouth is, I need to use and advocate the CC-BY-SA etc. over CC-BY-NC and CC-BY-NC-SA.

    For special occasions, I'll certainly contact users and ask for explicit permission.

  • http://www.createdigitalmusic.com Peter Kirn

    @Adrian A:

    Thanks — and actually, this doesn't show *any* weakness to CC. It shows the ongoing challenges of Copyright law itself, because where CC is vague, existing Copyright precedent wins.

    It's also frustrating that so many people focus entirely on the legal side of this. Yes, it's the law. But 99.9% of the activity online involving this kind of content is voluntary, by communities of people who don't have lawyers and don't generally undertake lawsuits. So while CC is legally-binding code (and appears for all intents and purposes to be effective), it's really how the community of people using it interprets it that matters.

    That may sound wishy-washy, but it also happens to be the practical, everyday reality.

  • http://www.PatternMusic.com RichardL@PatternMusi

    I recently came across some more CC well-meaning vagueness in the form of the <a href="http://creativecommons.org/licenses/sampling+/1.0/&quot; title="CC Sampling+1.0 license" rel="nofollow">CC Sampling+1.0 license employed by the Freesound.org project.

    Freesound is apparently actively trying to move to a better license, but the repository is now subject to the very flawed CC Sampling+1.0 license.

    Sampling+1.0 prohibits derivative products from being used for advertising or promotional use except for advertising or promoting themselves.

    It becomes particularly problematic in that the samples under this license are not the end product like a Flickr image and must be turned into a derivative work for the license to allow commercial applications.

    I my case I was creating a derivative work that would most accurately be described as a musical instrument — something the authors of the sampling license seem to have never anticipated.

    What a nightmare!

  • http://www.PatternMusic.com RichardL@PatternMusi

    Oops. That got mangled. The first paragraph was supposed to say:

    "I recently came across some more CC well-meaning vagueness in the form of the CC Sampling+1.0 license employed by the Freesound.org project."

  • http://www.createdigitalmusic.com Peter Kirn

    Fixed, Richard. And that's indeed a problem.

    This, erm, thought piece will clearly not be the last word on the issue. It may be time to go through the use cases CDM readers care about most (like sampling, remixes, and the like), and review the state of those licenses. Chris Randall noted he had made productive use of the license only to have it removed.

    Obviously, any such discussion would need to also involve the folks at CC. But I think it's also reasonable for people in our community to complain about licenses that aren't working the way we'd want.

    That said, there are all sorts of problems with the status quo, too, both the copyright law and the way – in practice – it's used, abused, and violated. So it is silly for people to simply dismiss CC out of hand without acknowledging some of these other issues.

    Likewise, you can't simply say, the law isn't perfect, so lawlessness is the solution. We would never have built civilization if we took that attitude.

  • http://www.PatternMusic.com RichardL@PatternMusi

    Thanks for the fix. (I need to stay away from that HTML stuff)

    With sound samples which are used or combined to create individual musical notes the attribution and licensing tracking required for a derivative work can easily escalate into an unmanageable state.

    My fear is that if following CC is too confusing, too difficult or unfeasible people will just ignore the licenses and use the materials anyway which is in some ways a worse situation than outright theft of copyrighted materials because a legitimate path has been created to allow use, but it is failing in practice.

  • Simon

    Peter, has anybody complained about their images being used specifically on your site? Given the perfect attribution you give the creators and the way you use the images, I can't even understand why someone would not want you to use it.

  • http://www.chokingsun.com dj mosquito

    i decided that i just didn't care how my images were used as long as there was credit. so, i've always gone with the Attribution Creative Commons license. most images i only know they are used via my stats, and i'm not only ok with but like it.

    but as usual, YMMV.

  • http://www.e-lectronica.com/luthierlab/ Mudo

    What about rewritting license concepts from zero?

    Forget copyright and CC… Why not start new real useful description and then try to mix with actual into new license paradigm?

    For me copyright is a trap itself and cc is trying to fill the gap but without real success.

  • http://www.createdigitalmusic.com Peter Kirn

    @Mudo: The reason CC uses copyright is because the copyright framework is in existence by default. That means you have to explicitly make exceptions to the rights provided by copyright law; you get them automatically (certainly here in the US, but in many other countries, as well).

    Creative Commons *does* work in many instances. The issue is that you have a variety of use cases, and that some of the specific license details — like noncommercial, as I'm arguing here — still need to be clarified.

  • http://www.createdigitalmusic.com Peter Kirn

    Oh, and no, no one has complained. Not once. But at the same time, moving forward, if I'm not only a publisher but an advocate of using Creative Commons, I feel I really have to follow the letter of the law on the CC licenses. And in this case, where there seems to be a gap between what the license says, how people perceive the license, and how they intend their work to be used, I think that's something we need to investigate further so we can provide solutions for people.

    It seems a significant number of CDM readers (across both sites):

    * use samples

    * provide samples

    * remix music

    * want their music to be remixed

    * want (at least some of) their music to be distributed through other channels provided by CC

    * post images to Flickr to be reused or spread widely for publicity

    * post video samples, loops, and the like

    And that's even before we get to the fact that the sites themselves use and provide content under CC. So we have a community of pretty heavy CC users. It's time to go back through all those licenses and evaluate how they're working, and how to make the best use of them. CC does a lot of that, but they're simultaneously advocates of their licenses; we all have the perspective of being third-party "consumers" of the licenses (i.e., we didn't write them).

  • http://chuckivy.com ChuckEye

    I for one am a big fan of the option in CC that explicitly allows for derivative works. CDM's current license, which says remixes are ok, with attribution and share alike, is the best of the bunch, IMHO. I got into an argument with a prominent CC advocate and author who, while writing an article in support of fan fiction, hadn't clicked the checkbox allowing for derivative works of his CC licensed novels, which I thought was a bit hypocritical.

    While I don't shoot much photography any more that would be terribly useful for stock art, I have used BY-SA for some of my Flikr pool where I thought it would be appropriate.

  • http://soundthefreetrumpet.typepad.com/ Catching The Waves

    I've always thought that CC licences, while useful, are not sufficiently explicit. It's not easy to grasp the particular ramifications of each CC licence; even the CC icons themselves (see the bottom of CDM) are difficult to understand at first glance.

    IMHO, the legalese needs to be rewritten and the icons redesigned.

    I decided from the outset not to carry advertising on Catching The Waves because I wasn't happy at the prospect of making money from free CC music. I might change my mind if the Creative Commons amended its licences so that CC creators could specify whether their material could be used by websites that profit from embedded advertising such as Google Ads.

  • http://www.e-lectronica.com/luthierlab/ Mudo

    Yes Peter I know… but really I think that patent law and copyright are good ideas bad done…

    I'm asking (myself too) Why to solve this issue?

    In my country (spain) there is a private association who "cares" about their "guys" but the state has aproved a law making a tax over any "writable" media (hd, sd, cd, dvd… laptops and so on).

    This tax is for compense the "possible" bad use of these medias…

    Do you know about "presumption right"?

    This is the result of overproteccionism + allforfree from "society" of information.

    For me something is wrong in this moment… and I try to understand all the parts to find any kind of solution before this go so far…

    Obviously the solution will be a mixed one from all these parts.

    Let go to make our part.

  • http://www.humanworkshop.com durk

    Over at Humanworkshop we work the same way. Only using CC licensed and public domain pictures with articles. We don't make any money with our articles. We don't place any adds.

    But we do get a higher google ranking because of our articles.

    And we DO make money with sound design and composition. (most of the music is licensed under CC non commercial too tho). So in-directly we do benefit from having a blog.

    I am a big fan and contributor to CC and just got an email from them about their financial situation. (maybe add https://support.creativecommons.org/donate to the article?)

    The times are changing and the so called "information age" needs an update. CC is a great tool which can help in the process imo.

  • JP

    Why not just ask the creator of the image if it's OK to use their image. I'd think that would be a common courtesy anyway even if you were using it for non commercial purposes. It would also clear up any confusion in the license, since the choice is right back in the hands of the rights owner.

    I've had numerous contacts on flickr for image use, some I say yes, some I say no (very few), but every time I thank the person for contacting me.

  • http://www.rutgermuller.nl Rutger

    @JP , the whole point of CC is not having to ask. It should make things easier. That's also the reason for me to ONLY use CC-BY, no other CC licenses. I don't want any confusion.

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  • http://kainiggemann.com Commander Kay

    Keep in mind that "copyright" and "All rights reserved" only means that you don't get to use every image you come across immediately, but that you need to contact the author first.

    I have done this many times through flickr (getting in touch can take a while there, though, it seems many users don't check their flickr messages on a regular basis).

    Everytime they have granted me permission to use their "(c)" pictures for free on my band's website.

    THIS, to me, is one of the most dire misunderstandings in the copyright discussion.

    "All rights reserved" means that I want a say, that I want to be asked before you use my work. If I support what you want to do with it, I can give it to you for free, if you make money, gain fame or generate fun out of it, I want my fair share.

    @George: it does not mean "No you can't". It means "Maybe you can, but please ask first"

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  • http://www.myspace.com/bernadetteerikkasol Bernadette

    Great points! I, too, think that copyright policies these days aren't clear enough. Originally, all rights reserved was I guess the norm and everyone understood what it meant, but time changed since then. Now more and more people have the means to use artworks in creative ways, that they themselves didn't create in the first place, and generate sth new, sometimes even better out of them. Hovewer the boundaries aren't clear enough, and ppl don't really understand the legal side of it.I use CC licenced works and most of my music & art is licenced CC too, but honestly, I sometiems still wonder whether I correctly understand what I can & cannot do with CC licenced works and how I should licence mine. I love the concept of CC though, I just think it can be done better.

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