I’m trying something new here: Audio versions of my essays. So, if you want to listen to me read this essay rather than read it, hit the play button below and let me know what you think about this idea!
Over the weekend a conversation has started over the move by photo sharing site Flickr to start selling canvas and other prints of photos published under various Creative Commons (CC) licenses with attribution but in some cases without financial benefit to the artist. The story started at Wall Street Journal, got picked up and went viral with Dazed, and gained further traction when authoritative figures like Jeffrey Zeldman chimed in.
I’m not going to argue the legalities of this issue. As has been stipulated by pretty much everyone who has spoken about it, Flickr – and by ownership Yahoo! – are well within their rights to do what they are doing from a legal standpoint. If you publish content under the CC-BY license you are explicitly granting anyone the rights to republish that content in any way including commercially (under which selling for money would fall) without reimbursing the original creator as long as they provide proper attribution to the same creator. By contrast the CC-BY-NC license grants anyone the right to republish that content under the same guidelines only for noncommercial purposes. If they wish to publish it for commercial purposes (including sale) they must be granted a separate individual license from the creator. (There is a lot more to Creative Commons and I urge you to educate yourself about this type of license, but that’s the gist of this particular story.)
A Question of Intent
So if it’s not about the legality of Yahoo!’s move, then what is the root of the discontent? On the face of it the issue would appear to be a simple misunderstanding or misappropriation of CC licenses by Flickr users – something addressed in a clear and concise way by Tom Lee in his piece Flickr Users are Wrong. But after spending the weekend thinking the case over and reading various opinions and breakdowns and dissections I’ve come to realize the root of the discontent is something more fundamental, and it’s something I’m seeing more and more on the web.
The reason why people are angry is not that they think Yahoo! is doing something wrong legally. It’s that they think the move goes against the “spirit of” the service they are using. Jeffrey Zeldman references the “spirit of the community it bought in Flickr“. My friend Chris says “there’s a clear violation of spirit when “commercial” is interpreted to include the selling of the photo itself, alone, for profit” (my emphasis in both cases).
The connotation of the use of the word “spirit” here can be translated into something like “intent” or “commonly agreed upon understanding”. And from the anger expressed in these postings it seems clear that the intent or common understanding of the licenses and their interpretations is at odds with the legal meaning of these same licenses. So what we are talking about here is not the legal framework CC provides but rather the intent of the user when they share photos under these licenses.
This is problematic.
Spirit is Relative
“Spirit” as it’s being used in this conversation is a relative term. You have the spirit of the user, the spirit of the license, the spirit of the community, the spirit of the service, and the spirit of the law. All these can align and all these can diverge and that’s OK. It is also the reason we have a legal system that sets clear parameters for how things can be interpreted: Spirit is relative, legal decisions and documents are not (at least in theory). The whole idea of a legal contract (under which we can find CC licenses) is that there is no room for interpretation. The meaning of the document is singular, unambiguous, and not up for debate. Of course this is purely theoretical, but that’s the idea anyway.
The problem arises when the spirit – or intent – of the user when applying a license differs from the actual legal interpretation of that same license. Take the following statement from Zeldman’s article – a concise reflection of what I see as the commonly held stance in this conversation:
“Some of the publications and businesses that use my photos make no money at all. […] That’s why I chose a Commercial Attribution license. The license makes my work available to all publications and products, whether commercial or non-commercial. Fine with me”.
So far the personal intent (spirit) and the legal interpretation of the CC-BY license are aligned. Then the next paragraph reads:
“But Yahoo selling the stuff? Cheesy, desperate, and not at all fine with me.”
Here the personal intent and the legal interpretation are in opposition. The CC-BY license gives anyone (Yahoo! included) the right to sell the photos, but that was not the intent of the user when the photos were uploaded.
Boiling down this and other statements in the discussion it becomes clear that the use of the CC-BY license by many Flickr users is based on an intent (spirit) that would sound something like this:
Everyone should be able to do whatever they want with my photos, including earning money off their use without sharing it with me, as long as they are not the corporation that hosts those photos or a large corporation that should be able to pay me.
(I should clarify this is not a quote from Zeldman or anyone else but a rhetorical tool to exemplify a particular “spirit” or intent.)
The Value of Content
This attitude is at the heart of this debate and many others, and it is one I plan to write a lot more about in the coming year. It is also one I hold and agree with, but one I think is idealistic and not tenable under the current legal structures that govern the web.
Let me break it down from the top:
All content has value. As a content producer you have the rights to that content and thereby also its value. You can trade the content for whatever value you attribute to the content provided someone else agrees that value to be justified and provides you an equivalent value in return. This is the basis of all barter and commercial systems.
(This is where I’m obligated to tell you I’m not educated as a lawyer but instead as a philosopher. This can not be taken as legal advice but rather a discussion of the philosophical aspects of content rights. It also means what follows might be incorrect, although to the best of my knowledge it is correct.)
When you publish content things become a bit tricky. The content now becomes available to others and they have the technical means to copy and redistribute that content with or without your permission. This is true for any type of content – written, painted, photographed, created in some other way. To protect that content from being copied and redistributed without the original content creator having a say or being compensated we have copyright and intellectual property laws. If you create and publish something original you automatically granted the copyright (literally “right to copy”) to that material and you also hold its intellectual property rights. This prevents others from copying and selling your creation, and it gives you the legal recourse to do something about it if someone breaks the copyright.
If you want to allow people to share, redistribute, alter, build upon, or sell your content in any way you need to grant them the license to do so. The Creative Commons licenses were created to make this process easy and transparent and available to everyone, not just people with legal degrees.
The problem with all this is that it assumes all parties are well informed and versed in the legalities of what’s going on. It also assumes a high level of “good faith” in both parties.
To put it in perspective consider the seemingly endless outrages over Facebook’s Terms of Service. Every time Facebook changes their Terms of Service users are outraged and flood the web with claims that Facebook will take away your rights to your own content and resell it. Sound familiar?
In the case of Facebook and other services, when you use the service you agree to Terms of Service that include you granting the service rights including the ability to redistribute your content without giving you notice or financial compensation. In other words by using the service you hand the value of the content over to the service for as long as you use it.
The value of most social media services lies in the content you produce and grant them the right to resell. Think about that for a minute. And yes, I will write about this more in a separate article.
When, and To Whom is Content Valuable?
Now we find ourselves in a bit of a weird place: On the one hand all content is valuable and the content creator holds the sole right to sell and grant license to that content. On the other hand the spirit of the web and the “sharing economy” is such that content creators often want to share their content for free and allow others to share it and in some case even use it to earn money (CC-BY). And then on the … third hand (?) … these same content creators often hand over the rights of the value of their content to 3rd party services only to get outraged when they are reminded of this fact. To say that this is complex is an understatement. But we are human, and as a species we seem to revel in complexity at all levels.
Seen from afar this all begs a question of when and to whom content is valuable. From the creator’s perspective some content is deemed so valuable it should be held under strict copyright and policed vigorously (think movies, photos from bureaus like Getty Images, etc), other content is deemed so valuable it should be released for free to be used by anyone under the CC-BY license, and some content is so (un)valuable that it makes sense to hand it over to a 3rd party to make a profit of it (Facebook, Twitter, etc).
But based on the current Flickr conversation and many others we’ve had before and will have again these value propositions are not attributed en-masse but rather considered from the creator’s point of view on a case-by-case or type-by-type basis in relation to the person accessing, using, and in some cases selling, that content.
To use Zeldman’s article again, he specifically states that “Some of the publications and businesses that use my photos make no money at all. Others make a little something. I don’t care either way.” But as you’ve seen in the earlier quote he is not OK with Yahoo! exercising that same right. And judging by comments on his blog, on Twitter, on Facebook, and in other blog posts, it is clear this is a commonly held stance.
In other words there is a distinct difference between Yahoo! and other users.
I can’t speak to the thoughts or motivations of anyone else so here I have to resort to my own reasoning for why there is a difference here and why that difference matters.
Actually, there are two differences:
1. Big vs. Small
The first difference has to do with perceived significance and valuation. If a random magazine with limited distribution used a photo of mine published under a CC-BY without compensating me for it I would most likely be fine with it (although I would feel bad for taking business away from one of my many professional photographer friends). If on the other hand a large multi-national corporation did the same I would not be fine with it because in my mind they should have the money to pay me and whatever income they make from selling my works is insignificant to them while it can be a big deal to me.
The problem is the CC-BY license applies to everyone – individuals, nonprofits, and corporations. So although I make that distinction on a personal level I can’t make it at the legal level. That would be legally (and in many cases ethically) unjustifiable.
2. Power and the Abuse Thereof
The second difference has to do with positions of power. If a small company were to start selling canvas prints of my photos I would likely not care much because they were unlikely to sell much and whatever kickback I would get would be negligible. But if a big company with a massive global user base did the same I would be alarmed and angry. Why? Because they would actually be able to make real money through my association with them. What Zeldman described as “Cheesy, desperate”. Whereas I would perceive the small company using my photos as a nod of appreciation and a morale boost, the actions of the big company would be perceived as a grave injustice and an abuse of power.
But this is all perception and not necessarily rooted in reality.
Perception of Imagined Losses
There is a fantastic book called “Thinking, Fast and Slow” where Daniel Kahneman talks about the perception of loss (that’s not the term he uses but I’m too lazy to look it up right now. Just read the book. It should be mandatory for anyone equipped with a human brain.) In the book he describes a situation in which our perception of reality is altered by the possibility of loss. I’ll borrow his methodology here. Consider these two scenarios:
- 10 people contact you and say they’ve downloaded your photo published under a CC-BY license, got it printed at a commercial printing house, and hung it on the wall in their office without paying you.
- Yahoo! contacts you and says they’ve sold 10 printed copies of your photo to be hung on the walls of office workers without paying you.
Chances are in the first case you’d be proud and tell your friends how happy you are that people like your photo while in the second case you’d be outraged at how Yahoo! has exploited your work without providing you proper compensation. At face value the two situations are virtually identical: Someone earns money (either the printing company or Yahoo!), an office worker gets the photo on their wall, and you get the credit. The difference is only that in the first case you attribute the action to an individual while in the second you attribute the action to a corporation. And while an individual who appreciates your work is often interpreted as a tip of the hat, a corporation appreciating your work is interpreted as a sudden increased valuation from which you are not benefitting.
Like I said, read the book. It should be mandatory.
Where do we go from here
So where does this all leave us? Yahoo! is in the clear, at least in legal terms, but their decision will damage their relationship with the users for a short time. But what about Creative Commons? If anything this situation has brought up an important question about whether the letter of Creative Commons licenses is true to the intention (or “spirit”) of those applying those licenses. (Jen Simmons goes in to greater detail and provides some theoretical solutions to this in her piece “I Don’t Want Creative Commons to Mean You Can Rip Me Off“). If that is the case it may be time we took a closer look at Creative Commons and reevaluated how these licenses are used and whether we can either use them more correctly or change them to be more in line with the spirit of the community and our intent.
Over all of this also hangs the dark cloud of content ownership and value. The way content providers use our content for enormous profits without sharing that profit with the creators is a serious problem we have yet to address. What Yahoo! is doing with Flickr is trivial compared to what other social media services are doing with your content every day. We have to have a serious conversation about how revenue is generated on the web and whether it’s OK for a corporation and its investors to build multi-billion dollar empires on the creative efforts of its users.
In the meantime there is only one lesson to be learned here, and it is the most important one: If you put content on the web, remember that the license you apply to that content is universal. It grants the same rights to your neighborhood blogger and the corporation that hosts your content. So if you don’t want the corporation to sell your content, neither can the blogger unless you grant her a special license.
This is a conversation. My opinion is mine and mine alone. Do you agree? Or disagree? Do you have a rebuttal or dissent? Let your voice be heard in the comments below and keep the conversation going.