Saturday, February 01, 2014

Chang vs. Virgin Mobile

The Chang vs. Virgin Mobile case illustrates some of the complexities behind the CC-BY license. A picture of a minor girl was posted to flickr with a CC-BY 2.0 license, and it was picked up and used by Virgin Mobile in an advertising campaign, without asking the permission of the photographer. The family was not pleased with this and fought this in court, against Virgin Mobile on several different grounds including copyright, privacy and publicity rights, and against Creative Commons for failing to warn against this possibility. The plaintiffs ultimately dismissed the case.

From my perspective, this case raises some issues to consider before deciding that a particular creative commons license is optimal for scholarship.

  •  When people consider the use of a CC-BY license, the potential for negative and not just positive downstream uses should be taken into account. Not every potential downstream user is an academic with a substantial commitment to scholarly integrity. There are pros and cons to each one of the CC license elements. I argue that the best service to potential CC licensors to provide the best available advice about each of the CC licenses, including known pros and cons and informing people that there is no way of predicting in advance every potential kind of use of CC licensed work. Creative Commons comes close to providing good service, but in my opinion fails due to participation in the attempt to deprecate CC's NC and ND license. For an example of this, go to the CC license chooser. If you choose not to allow derivatives and/or commercial use, you will be informed that "this is not a free culture license", while licenses allowing derivatives and commercial use state "this is a free culture license". 
  • Ethical and legal liabilities: this was a family photo licensed CC-BY by the family. The family objected to use of the photo in the ad on the basis of copyright, privacy and publicity rights. If the photo were from a research subject and licensed CC-BY by the researcher, not the subject, there is a strong possibility that the subject would have a case that the researcher's CC-BY license violated a research ethics protocol of a university, research centre and/or funding agency. The bar for informed consent for research subjects is much higher than the bar for an organization like Creative Commons. If the researcher used a CC-BY license because their institution or funding agency required the use of this license, there could be legal liabilities for these bodies as well. I would like to emphasize that while there may be legal liabilities to consider, the ethical issues are more important. If you are using CC licenses on works that others have made substantive contributions to, such as allowing you to use their photos or stories, then you have an obligation to think carefully about the potential uses of the works and providing advice to potential research subjects that allows them to make truly informed decisions about how this work is licensed. 
Summary and conclusion

Creative Commons licenses is the not the simple solution to scholarly copyright that some of us would like to see. There are good reasons for scholars to hesitate to grant some of the rights CC makes available, including derivative and commercial re-use, including ethical and legal consideration. As an open access activist, I am concerned that the push by some in the open access movement for a CC-BY / CC-BY-SA default license for open access is more harmful than helpful to open access. Unleashing the potential for creation of derivatives and commercial use will unleash negative as well as positive benefits. When this happens, scholars and policy-makers who believe that they have been misled about the benefits and downsides of particular CC license elements are likely to be just as unhappy as the young woman and her family in this case were. The purpose of my Open Access and Creative Commons critique series is to try to alert my colleagues in the open access movement about these dangers to open access per se. 

The CC summary or this case can be found here.  The CC wiki page for court decisions is here.