Photo-sharing lawsuit against Creative Commons dropped

by Grant Gross

November 29, 2007 —

A Texas family has dropped its lawsuit against the nonprofit Creative Commons
copyright licensing organization, after an apparent misunderstanding over commercial
use of a photo of a teenage member of the family.

Susan Chang of Dallas, filed the lawsuit in September against Creative
Commons, Virgin Mobile USA and Virgin Mobile of Australia, alleging that
the Australian company's use of her daughter's photo in an advertising campaign
violated her privacy rights. But Justin Wong, the photographer who took the
photo, posted the image on the Flickr photo-sharing site under the Creative
Commons Attribution copyright license, which allows others, including commercial
entities, to reuse the copyright work without paying for it.

Susan Chang and Wong accused Creative Commons of failing 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," according to
their complaint.

Chang and Wong dropped the lawsuit against Creative Commons and Virgin Mobile
USA Tuesday. Their lawyer, Ryan Zehl, said the plaintiffs instead would focus
on their lawsuit against Virgin Mobile of Australia.

Chang and Wong weren't seeking monetary damages from Creative Commons, Zehl
said. Instead, they wanted the organization to add three sentences to its licenses
clarifying that the license doesn't deal with privacy rights, he said. "There's
only so far we can go with spending money without getting money in return,"
he said.

Creative Commons, launched in 2001, attempts to give copyright holders additional
options for licensing their work. The organization has created a series of licenses
between full copyright, in which all rights are reserved, and the public domain,
in which no rights are reserved. The group's six licenses attempt to allow creators
to have "some rights reserved." Three of the six licenses forbid commercial
use without permission.

Creative Commons said Chang and Wong didn't have a strong case. Flickr users
do not have to license their photos or allow reuse, and the Creative Commons
licensing is not the default option, the organization said.

"Although we are confident that any court would have agreed that there
was no valid legal claim against us, this is a good result," the organization
said in a statement.

Still Creative Commons founder and CEO Lawrence Lessig said the organization
will look at ways to make its licenses clearer to users.

"The fact that the laws of the United States don't make us liable for
the misuse in this context doesn't mean that we're not working extremely hard
to make sure misuse doesn't happen," Lessig wrote on his blog.
"It is always a problem (even if not a legal problem) when someone doesn't
understand what our licenses do, or how they work. We need to work harder to
make that clear."

Zehl said he's not convinced Creative Commons will make license changes his
plaintiffs have asked for. The organization so far has not acted, he said. "Maybe
they will, maybe they won't," he said. "We can't spend all day trying
to get them to do something they should've done in the first place."

The lawsuit cost the nonprofit about US$15,000, Lessig wrote.

Lessig also apologized for the confusion. "We thought the meaning was
clear," he said. "We work hard to make this as clear as we can. We
will work harder."

IDG News Service