Wikimedia/Creative Commons and copyleft trolling

[Les]

There's a very interesting and full discussion going on in Wikimedia regarding what's called 'copyleft trolling' - essentially what people are reporting here.

It started when evidence was reported for suspecting a particular photographer of using Pixsy as a business model. The administrators of Wikimedia are taking it very seriously (it seems to be a very democratic governance), and are debating whether the photographer should be banned, what exactly is fair for a photographer to do to protect their IP, what terminology to use about people who seem to be abusing the system and, most important, how to make contributors and users of Creative Commons images aware of their rights and duties. I think there will be resonances for many people who've reported issues here.

https://commons.wikimedia.org/wiki/Comm ... t_trolling

[stevedavies]

Yep. And the photographer who chose not to contact me and allow Pixsy to get him his money, has found his Flickr account banned. 27k images or more.

Flickr and CC condemn Pixsy, and Flickr ended their partnership yet Pixsy still say they are a Flickr partner.

Professional, not.

Flickr were very good with me on the investigation. Took a few months but the result is beautiful. Pretty sure I got a troll removed.

But it's also down to the IP lawyers and the IPEC and the copyright law system to actively refuse to take these cases seriously. This must happen if guidelines set by Flickr, Wikkimedia and CC were not followed as the "artist" regarded Pixsy and similar firms as a means to make lots of money by extorting fees from good faith users of their images.

As far as free CC2.0 images are concerned, there should never be litigation involved unless the user refused to take down the image or used it to make money.

This shitty fiasco must end for folks.

[Les]

The photographer in question has now contributed to the discussion in several places, confirming his reasons for using companies like Pixsy, citing unacceptable thefts of his images by large well known companies, while regretting that small time websites get caught up. There are so many uses of his images he doesn’t have the resources to investigate them all, so he has to rely on a third party. Unfortunately we know what that third party is like.

[stevedavies]

That's all very well but the photographer has to sign docs for each case and could have refused on all but the big companies stealing his "licensed" work. Sorry, but I have no respect for these people who use PIxsy or similar firms and don't check who is being harrassed. That's what trolls do... Not saying the photographer is a troll but if he wants to chime in here and explain himself, he's welcome.

This is from the Legalbeadles site where someone created an account and had a look at the PIxsy options. The photographer is in full control and if they truly care about small businesses being targeted over CC images and not heavier licensed images by big brands, they can choose to not pursue the case. Nothing can go ahead without the photographer's approval and if it court action is considered, it's all on the photographer.

Having looked at the Pixsy site, it seems likely that the $750 figure has been selected by the photographer. Basically you sign up as a photographer, upload images you want to monitor, and Pixsy scours the web for them. If it finds a match, it asks you what you want to do about it, the options include ignoring the particular use. It then asks how much you would normally charge to licence images. It didn't find any of mine, which is a blow to my ego as a photographer

The photographer will know after that what brands are being targeted. It's unlikely that a big brand will use a free CC 2.0 image. No cost to the photographer, no loss incurred just the moral aspect which is very questionable if the photographer did not try to contact the user. And taking an image that normally carries a fee and not paying is a different matter. However, the photographer is in control here and will know at the start of a case whom is being targeted by Pixsy. There is a choice here to request a takedown. In my case, that didn't happen and it cost the photographer his Flickr access.

I hope your case is going away or you get to settle at a very low fee. The former is the only right direction though.

[Les]

Here's another extract from the discussion. I'd be interested in any legal feedback on what a court like IPEC would make of the argument. I've taken the names out as it's the strands of argument I'm interested in.

Photographer:
- I am aware that many low-level and barely-commercial users have regrettably been caught up and I have historically tried to intervene and/or significantly reduce the fee being sought for retrospective licensing. I hope you can also see my inherent dilemma, however.
Firstly, there are huge number of legitimate large commercial users who have used my photography illegally and I feel that morally speaking, they should be accountable for acting illegally to deprive me of income.
Secondly, I don't have the resources to pursue these individually and need to rely on external resources.
Thirdly, it is difficult to identify the extent of the misuse or potential loss to myself simply from the location of the image on the internet, which therefore makes it difficult to focus resources only on the most egregious misusers.
Fourthly, the resources expended on tracking the images down and contacting the owners is not negligible, even if -potentially- the damage to my photography income is negligible. For the process to be viable, it seems reasonable to at least be able to recover the costs incurred.
Fifth, as you would likely be aware, what is sought in damages and what is settled on are often very different things.

All of the above may not persuade you that I am within my moral rights to do this, and it may also not persuade you that doing so is in keeping with Wikimedia Commons licensing (I firmly believe it is), but I do want to make it clear that I am sympathetic to those who have been inadvertently caught up in this due to accidental misuse, and that this is not, as xxxx implies, the actions of a heartless copyleft troll. 

- Wikimedia:
Just want to ask you to clarify one bit here: there are huge number of legitimate large commercial users who have used my photography illegally and I feel that morally speaking, they should be accountable for acting illegally to deprive me of income - since the images are CC licensed, how is failing to properly attribute depriving you of income?

-Photographer: I have always parallel-licensed my images. They can be used with restrictions (CC licensing and correct attribution etc) for free, or (often by request or negotiation) they can be licensed without those restrictions by commercial users for a fee. Therefore when someone uses the image commercially and doesn't attribute correctly, they are depriving me of the licensing fee for unrestricted use. Given the Creative Commons licenses don't prohibit this and Wikimedia Commons has never discouraged dual-licensing, I don't feel I've done anything wrong here. There are moral arguments for and against of course, but that's a separate issue to what is being discussed.

- Wikimedia:
I suppose where the criticism is coming in is kind of based in this idea (Therefore when someone uses the image commercially and doesn't attribute correctly, they are depriving me of the licensing fee for unrestricted use). That's well and good for Apple or Conde Nast, but for most commercial uses (e.g. Bob's Travel Blog, which is technically commercial but really just a hobby), they're not depriving you of a licensing fee -- they just didn't made a mistake when using the CC version.
If an image had a fee, they would've just used a different image because that's not a realistic cost for the vast majority of small businesses. For a lot of people getting by paycheck to paycheck, even a reduced fee could be devastating. You and I are not in the same league in terms of photography, but I know that I see my work used all the time -- sometimes it's by popular publications/companies, but most often it's by the huge number of people who rely on WikiCommons because they can't afford things like licensing fees. What people are objecting to at VP isn't getting the fee that Apple would've paid if they did things properly -- it's the extracting a fee from someone who never would've used it if they knew a fee was involved, who likely just made a fixable mistake, and who would rather just shut down their business.
The dilemma, as I framed it at VP, is that there's no suitable middleground between spending all your time chasing people down and hiring a firm that will act unethically. I think that latter, however, is deeply uncomfortable for a lot of us. The solution to "the Pixsy problem" [proposed by Cory Doctorow](https://doctorow.medium.com/a-bug-in-ea ... 6360713299) is just to update licenses to CC4, which builds in a 30 day window to fix attribution. Maybe if you did that, it would rein in Pixsy's ability to go after smalltimers?

[AndyJ]

You asked how the IPEC might view this problem. I have no idea because as far as I am aware the court hasn't be asked to decide this specific set of circumstances. There may have been a case in the small claims track but because those decisions don't get reported we don't know about them unless one of the parties decides to publicise the decision in their case, as photographer Jonathan Webb did a few years ago.

The photographer here is talking about two separate issues. The first is where one of his images which carries a CC licence is used without the correct attribution. This is not copyright infringement, it's a breach of the photographer's moral rights. This is so even if technically speaking failing to provide the attribution nullifies the licence. This is because this term within the licence is not spelled out to the consumer clearly beforehand and thus it represents an unfair term (see the Unfair Contract Terms Act 1977 and its subsequent Regulations) which the average consumer cannot be expected to understand at the point of transaction.

The second issue, that of large commercial companies exploiting the photographer's work where a NC CC licence was used, is a matter of infringement because it is obvious from the outset from the terms of the contract (all licences are contracts) that no commercial use is permtted by the CC licence. Moreover large companies are not 'consumers' as far as the law is concerned and they are expected to exercise greater diligence and have greater knowledge of what constitutes common practice within the market place in which they operate.

In my view the photographer has brought much of his problems on himself, firstly by putting his creative work out under a CC licence while at the same time trying to make money from the same images through large scale licensing. No reputable company, say one looking for a suitable image to use in their advertising campaign or on their packaging, is going to choose an image which is already circulating widely on personal blogs. Generally they want exclusivity in their licences. I suspect that this particular photographer may be fairly new to the game and is looking to get himself recognised. That is quite understandable. There are dozens of places you can display your work besides flickr and you don't have publish using a CC licence. If your work is good enough, art directors will find you and then commission you to do their campaign or product shots etc on an exclusive basis. Someone who comes to mind who has gone down this route very succesfully is Miss Aniela. If the photographer's work is aimed a stock image market he should work with an agency that specialises in that market, and initially he will earn money through microstock payments. Once he is established in the market of his choice he can then partner with a more prestigious agency whose clients are prepared to pay more for quality.

And the second mistake the photographer has made, in my view, is to engage Pixsy or whoever it is he's using, without giving them a clear brief on what they are to do. They are his agents, and if they make a major mistake in the way they handle a case in his name, he stands to bear the liability for their actions. Currently Pixsy spend a lot of time threatening court action, when in reality only the copyright owner can bring a claim to court. And just as the photographer can refuse to go ahead with court action, he can also tell Pixsy to stop any individual case they are persuing, if he feels they are going after the wrong type of alleged infringement.

Finally, I entirely agree that any creative should be able to use copyright law to protect his/her economic interests, and anyone who doesn't stands to get ripped off. However there are right ways of doing this and there are wrong ways, so it's worth knowing the difference.

[Les]

Thanks for that, Andy.

This is because this term within the licence is not spelled out to the consumer clearly beforehand and thus it represents an unfair term (see the Unfair Contract Terms Act 1977 and its subsequent Regulations) which the average consumer cannot be expected to understand at the point of transaction.

The CC2 and CC3 licences do state that the terms of the licence will be broken if not complied with. That's how companies like Pixsy are able to ply their trade. Are you saying the problem from the point of view of that Act is that the consequences - being sued for infringement - are not spelt out? The Wikipedia people are currently debating wording for their site to say 'you might get a knock on the door' but they haven't agreed on it yet.

Re Steve's photographer who got removed from Flickr, when I mentioned that had happened, naming no names, someone said:

I'm glad that Flickr is taking this seriously. However, doesn't deleting images expose all its re-users to copyright claims, since the original CC licence disappears (assuming the image is not available elsewhere)?

People who have his photos on their site now can't point to a CC licence. Is that a danger?

[AndyJ]

Hi Les,

What I mean is that unusual terms of a contract cannot just be buried in the small print, they have to be drawn to the attention of the consumer at the time the contract is made. People often don't understand how CC licences work in general, which is why some refer to the images covered by them as being 'in the public domain', which they are not. That is why CC devised the tags like SA and NC, as a quick shorthand for the conditions attached to the licence. However the 'nullified if no attribution' condition is not apparent. What's more, with the move towards click-through attribution etc there's even less chance that the user will read the details. It does not help that CC have so many versions of their licences. It is now quite a long way from the original well-intentioned simple concept.

As for the issue of the photographer's images being removed from Flickr, nothing changes for someone who has already used his images with attribution and in accordance with the other stipulations, eg share alike. The licences are irrevocable so they continue to operate, even if the place where they came from no longer exists. For people who used the images without attribition, the situation is much as before - they may get an email from Pixsy or they may not. Either way, if a case goes to court, the copyright owner still has to prove the conditions which attached to the image as well as his ownership of the licence. And frankly if the court is made aware of the circumstances of the photographer being banned from Flickr, I would expect them to be fairly sceptical about the whole claim.

[Les]

Another interesting POV from a photographer about changing Creative Commons licences to CC4 which allows a grace period after first contacting an infringer:

A lot of people seem to be suggesting that CC4 solves all the problems. I don't believe it does, at least not from the photographer's perspective. It removes the photographer's ability to claim retrospective damages. Let's say a very high profile company illegally uses my image for a very high profile but short-term publicity campaign, in circumstances where I could potentially have licensed it for a very considerable sum to them. If by the time I notice the misuse, organise a representative to respond to them and demand a response, I simply allow them to 'fix' the error within 30 days by amending the attribution then they will have benefitted from the licensing error and will not have to offer any compensation for this deliberate act. It effectively gives a reuser the 'get out of jail free card' that allows them to break the law egregiously knowing that there will be no recourse other than requiring a fix that only needs to be applied AFTER the image is no longer useful to them. I don't think these CC4 license terms are fair and reasonable, and have not been considered from the content creator's perspective with respect to the potential income it takes from them.

Much of this photographer's defence of Pixsy is based on this 'retrospective damages' argument. Pixsy claims against CC non-attribution tends to focus on 'this isn't just about correcting attribution it's about the months or years you displayed the image without attribution'. This suggests some compensation is due to the photographer.

The photographer seems to view the infringement as a choice between:
a) posting his/her photo without attribution or
b) paying for a commercial licence
If you don't do (a) then you have cost the photographer (b) and the length of time it's been displayed also feeds into that, although I don't see how unless the licence has to be renewed every year.

In real life, however if a user didn't want to attribute the photo for some reason, their normal choice would be to find another photo, not to pay a large fee to waive the attribution requirement. Most often, however, it's just carelessness on the part of the user, not a deliberate choice. Not good, and not clever but carelessness all the same.

So from a legal point of view do you think a court would be looking at
- restoring the photographer to the financial position he/she would be in if attribution had been done correctly (i.e. probably £0) or
- restoring the photographer to the position if a paid licence had been bought?

[AndyJ]

I think the photographer is confusing two different things: commercial use and attribution. If he wants to licence his work to 'very high profile compan[ies]' then he needs to attach an NC tag to his CC licence. While that doesn't prevent the large company from taking and using his work without a licence, it provides him with prima facie grounds for a claim. In such circumstances the lack of an attribution is the least damaging part of the problem. The CC4 grace period is there for the people who fail to correctly attribute the creator or licence type through ignorance or inattention, from which the photographer suffers no direct loss. Click-through attribution may help resolve that problem.

As I said before, I think that photographers who use this split system of letting non-commercial users have a free licence and expecting to reap the financial reward from big commercial users are responsible for the confusion. It's worth remembering how the Creative Commons movement came about. I don't want to waste time here explaining it in detail (Cory Doctorow and Lawrence Lessig have done a better job than I could), but suffice it to say that it grew out of the same ethos as the Free Software Foundation and indeed what originally led to Youtube. In simple terms the enrichment of society by giving something away for free allows that society to grow and become more economically viibrant, and the financial reward comes from that process, not from the short term gain of selling a one-off licence for $10.

Creatives who try to ride both horses at the same time are responsible for confusing the public about what CC licences are, and so they must share some of the blame for the bad behaviour of some of that same public.

[stevedavies]

That photographer is talking a load of s***....

He's either as Andy said confusing attributing free CC2.0 images with unpaid commercial licenses, or actually wants to defend firms like Pixsy. He's just another disgruntled photographer who does not want to accept the CC4 license upgrade and so to carry on regardless most likely with CC2.0 images. He's only referring to high profile brands and it's far from relevant here as a result. No attribution on CC2.0 images = no financial loss for the photographer. And it's not too much to ask for a takedown email or even a phone call. I'd have responded immediately as I did when I was first notified but not by the artist.
Flickr may some day be looking at click-through attribution as the Flickr Support team have submitted that request after I suggested they should.
I think it's an urgent requirement though. Or remove CC2.0 and force upgrades to CC4.0 and that photographer can go cry in a corner.
The photographer misses the point for some reason. CC4 is there to correct transgressions not open the door to rogue companies to make money.

[Les]

There are massive debates going on at Wikipedia now about how to stop this. It seems you can’t just remove CC2 or change existing CC2 licences to 4, as some have suggested. I don’t understand all of it but the so far they seem to be favouring a flash below each photo that says ‘This photographer has sued users for small failures of attribution.’ Or something like that. The admins who argued for removing all his photos have been outvoted I think, and the discussion moved away onto how to prevent trolling or at least warn users.