http://blog.limewire.com/posts/1616-Even-Charles-Manson-Digs-Creative-Commons

I think I am the start of all this, so let me first say that I loved your image of Measure for my post on XO overclocking. I also made sure to link back to your original image as its good web practices, no matter Flickr’s polices. Thanks for acknowledging my efforts to be a good web citizen.

As to the bigger picture of CC, I think its often misunderstood. The big problem I see is that creators often feel that CC is stronger or different than traditional copyright, especially when it comes to the use of copyright content under the guise of Fair Use.

Granted, the four tests of Fair Use - purpose and character, nature of the copied work, amount and substantially, and effect upon work’s value - are gray at best, so there is much subjective analysis on what can be covered.

Personally, I feel strongly that my use of your image on OLPC News is within Fair Use. On BoingBoing, its a little more questionable, but I still think a copyright violation in this case would be hard to prove.

That Cory could’ve been the violator is a whole other story…

Flickr blogginess aside, Aaron, what is that critter in the upper left-hand side of your living room photo? Cat or raccoon or large guinea pig?

http://www.danheller.com/blog/posts/creative-commons-and-photography.html
http://www.danheller.com/blog/posts/follow-up-creative-commons-and.html
http://www.danheller.com/blog/posts/gaming-creative-commons-for-profit.html
http://www.danheller.com/blog/posts/proposal-for-creative-commons.html

Josh Benton’s issues of commercial vs. noncommercial are interesting but ultimately I think sites have a pretty obvious slant. At their heart, newspapers are commercial. At its heart, this blog is not commercial. It is personal marketing and you may get some work from it but that doesn’t change its motive which is noncommercial. And no matter how altruistic a newspaper may want to be, its motive is commercial.

Also commented over at Josh Benton’s blog.

I really do need to get some work done now.

Thanks for the comment oand the explanation. I did email you when I noticed it at this email address at Thu, 27 Mar 2008 16:02:04 -0500. Perhaps it got filtered.

I just updated my post. I do think the example still raises some good questions about CC’s effectiveness. I completely believe that it was an honest mistake on your part, but it’s a very easy mistake to make… even for people that love Creative Commons like you and I.

Thanks everyone for the comments and emails — they and the situation overall has me thinking a lot about Creative Commons as well as what I regard as “commercial use” and what really “fair use” is in regards to these kinds of situations.

I wish you’d also emailed me when you found it. It would have gotten fixed a lot faster if you had — I read my email all day long, whereas I look at comment threads a couple times/day.

I’m awfully sorry that this happened, and I hope that you see that it was an honest mistake.

I certainly agree, it’s something of a disappointment to see a core CC advocate failing to follow the spirit of a CC license. I wonder though, in legal terms, if the use of your photo in this way might be considered fair use? Fair Use lets parts of material under full copyright be re-used for the purposes of review, and for reporting the news. It’s possible in “quoting” from the original OLPC news article, and including your picture as part of that quote, this use could be considered fair (in a legal sense)? I deliberately hedge my bets since fair use is fairly imprecise and hard to define, but it’s certainly possible. (That said, I’m not a lawyer so I’m definitely not saying it is: I’m just putting the question out there!)

That said, though, to be fair to Cory Doctorow, he might actually be having a weekend off or be otherwise engaged right now and have every intention of fixing this error when it’s actually brought to his attention. Regardless of his exact legal obligations, I’m sure he’ll update the post to accurately attribute the photo (especially now you’ve explicitly given him permission to re-use it).

For me, this incident really does highlight how complex the waters of copyright are, and how both CC licensing and fair use are parts of a very murky set of rules! All of that aside, I have to say I agree most wholeheartedly with your main point: those of us who value CC must do our very best to respect for the legal side and the spirit of CC or the push toward more sensible and transparent rules in the realm of copyright will surely fail.

Aaron in no way comes across as being “mad” at Boing Boing, and his main concern was the lack of attribution, not the fact that Boing Boing is a commercial enterprise.

These may seem like quibbling details, but in one paragraph, you managed to completely misrepresent the nature and tone of Aaron’s concerns regarding the effectiveness of a CC license.

http://hchamp.com/2008/03/05/chieka-on-boing-boing-tv/

Truth is, BoingBoing isn’t as much FOR Creative Commons as they are simply AGAINST any kind of copyright.

http://www.crabwalk.com/archive/2008/03/29/creative_common.php

http://www.boingboing.net/2008/03/26/free-remixable-music.html

My thoughts on this. Yes, I would have liked to have seen the license followed properly. On the other hand, I’m just happy to see a pic I took on such a prominent blog.

However, I believe in the creative commons, and perhaps I should be taking a more active role in enforcing creative commons.

If someone asked me to fix it, I’d do it right away though.