1294220292_0c980ff96bYahoo!, owners of the photo sharing site Flickr, recently caused a storm of controversy by announcing plans to sell prints of photos that users had uploaded. Yahoo!’s plans included sharing 51% of revenue with users who had retained copyright on their photos. For those who voluntarily selected a Creative Commons Attribution license (CC BY) for their works, no compensation was offered. Despite the fact that Yahoo! was explicitly following the terms of the license, and doing exactly what the license was designed to promote, users were up in arms over seeing a large corporation taking advantage of their labors. This is just the latest example of content creators failing to understand what they’re signing up for with CC BY.

The CC BY license states:

This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.

CC BY was specifically created to help drive reuse of creative works. As Tom Lee puts it, “Open licensing is about giving up control so that other people can benefit.” The default license on Flickr is full copyright, all rights reserved. The only photos carrying a CC BY license are those where the creator has deliberately made the choice to apply it. But Flickr’s users seem to disagree with the actual intent of the CC BY license, and want to draw a line in the sand about who should be able to reuse their content and who shouldn’t:

I want people to use my photos. That’s why I take them. I want that usage to be unencumbered. That’s why I chose a Creative Commons license. 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. 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.

But Yahoo selling the stuff? Cheesy, desperate, and not at all fine with me.

There’s a sudden realization that “unencumbered” is actually a word with a definition that means something. Part of what it means is that you don’t get to choose who does what with your work. Much of the outrage is fueled by anti-corporate sentiment:

If the only option for preventing corporate abuse is to lock everything behind non-commercial-use licenses, the whole purpose of Creative Commons is weakened…In the spirit of the time, people used CC-licenses to say “here, I made something. You want to make something too? You can use my thing when making your thing. Let’s share.”…The idea: let’s break the chains that giant corporations wrapped around everything, and create a new world that doesn’t have the toxic culture of greed and profiteering which locked-up so much of humanity’s creative landscape in the 20th century.

This represents a failure to recognize the now long-standing corporate support behind much of the “free culture” movement. Digital companies make enormous profits from free online content. The more free stuff you can get online, the more iPhones Apple will sell. The more free stuff you can look at online, the more ads Google can sell to run alongside it.

The CC BY license should not be seen as anti-corporate, nor anti-profit, it merely shifts the profits away from the content companies and creators and into the bank accounts of other companies with business models built around exploiting free access to that content. The RCUK open access policy, for example, includes the use of a CC BY license used to help foster economic development. That’s perfectly in keeping with the role of government–more business means more jobs and more tax revenue. But there’s nothing in their policy that limits that economic development only to individuals or small companies made up of really nice people.

There seems to be a serious disconnect with, “the intent of what users thought they were signing up for,” and the reality of the CC BY license. While it has been argued that the only reason academics don’t license all of their works under CC BY is a lack of understanding of the license, these sorts of real world experiences have shown us that perhaps the opposite is true. The problem doesn’t seem to be that authors fail to understand the restrictions of copyright, it’s that they fail to realize that releasing all rights means that anything goes, whether you like it or not. Just as academics went ballistic when they found their CC BY licensed papers being resold by a less than reputable publisher, Flickr’s users have similarly revolted against the very thing they volunteered to support.

CC BY is a blunt instrument, and it is deliberately blunt. The notion is that we can’t predict future uses that might be important, so we have to remove all limits on reuse, just in case. That means accepting all reuses, whether you like what’s being done or not.

This would seem to be in conflict, at least tangentially, with the reputation-based career structure of academia. How far you rise depends on what people think of you and your work, and that’s why, when given the choice, most academic authors choose more restrictive licenses for their papers. There’s a desire to exert as much control as possible over the public use of one’s name, work and reputation. Authors want to be asked before their name is associated with some effort. Non-Commercial licenses don’t necessarily prevent commercial reuse, it just means that permission must be granted by the copyright holder. That’s inconvenient in the case of a company like Yahoo! which is looking to exploit user content on a large scale. If they have to ask each and every creator for permission, that’s a big time and cost sink and may discourage commercial development.

In the end, what this suggests is that more education is needed (both pro- and con-) toward CC licenses, and that more nuanced licensing terms may provide a better answer in the long run. There is a balance to be found between driving corporate profit (and societal benefit through employment and tax revenue) and respecting the wishes of content creators. What should creators be asked to give up in order to make things more convenient for those seeking profit? As always, caveat venditor, or perhaps in this case, caveat donator.

 

David Crotty

David Crotty

David Crotty is the Editorial Director, Journals Policy for Oxford University Press. He serves on the Board of Directors for the STM Association, the Society for Scholarly Publishing and CHOR, Inc. David received his PhD in Genetics from Columbia University and did developmental neuroscience research at Caltech before moving from the bench to publishing.

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Discussion

58 Thoughts on "Creative Commons Confusion Continues to Confound Content Creators"

David:

Yahoo!’s plans included sharing 51% of revenue with users who had retained copyright on their photos. For those who voluntarily selected a Creative Commons Attribution license (CC BY) for their works, no compensation was offered.

You seem to be using “retained copyright” as the opposite of “selected CC By”. But of course they are not opposites at all: the great majority of people who select CC By for their works also retain copyright.

Did you mean “users who had reserved all rights on their photos”?

It’s actually a bit unclear–perhaps a better way to put it is “any creators who retained enough rights that Yahoo! had to ask their permission before commercially reusing their works.”

The right of attribution is not a right under US copyright law, so CC BY does indeed result in the entire renunciation of copyright protection. Creators are in no position to sue, under copyright law, for any reuse of their work. So it is indeed true that CC BY means that authors have no copyright rights left.

This is incorrect. An author furnishing his her work under the CC By licence, or any licence, retains both copyright and all other rights not explicitly waived by the adopted licence. For example, for this article, I and Matt Wedel retain both copyright, and the right not to have the article republished without attribution (i.e. passed off as someone else’s work).

As I said, the right of attribution is not a right protected under US copyright law. What rights do you think you retain that are protected specifically under copyright law (rather than, say, the law of misappropriation)? If you cannot name any, then you have in effect no copyright in your work that is enforceable. When you sign a contract transferring “all rights” to a publisher, you have no copyright left; the CC BY license has the same effect in this respect as an “all rights” transfer as far as copyright is concerned, except that you are not transferring your rights to one other person or entity but rather everyone in the world and the transfer is nonexclusive, of course.

Sandy, I feel like this is veering off into a semantic argument. You are incorrect that a CC BY license requires an entire renunciation of all rights granted under copyright. CC licenses in general work on top of copyright:
https://wiki.creativecommons.org/Frequently_Asked_Questions#Is_Creative_Commons_against_copyright.3F
CC licenses are copyright licenses, and depend on the existence of copyright to work. CC licenses are legal tools that creators and other rights holders can use to offer certain usage rights to the public, while reserving other rights. Those who want to make their work available to the public for limited kinds of uses while preserving their copyright may want to consider using CC licenses. Others who want to reserve all of their rights under copyright law should not use CC licenses.

https://www.legalzoom.com/articles/what-is-creative-commons-5-frequently-asked-questions
2. How do Creative Commons licenses interact with copyright?

Creative Commons licenses work alongside the rules of copyright, allowing you to authorize a more free usage of your work and choose the protection that best suits your needs. Creative Commons licenses apply to any work covered by copyright law.
By using a Creative Commons license, you do not give up your copyright; you still own your work.
Creative Commons licenses do not replace copyright registration—they apply in addition to copyright.
Even if you’re using a Creative Commons license, it is advisable to register your copyright so you can protect your work from unauthorized uses through the courts.
Think of copyright as an “all rights reserved” option in which you hold all rights—something that you may desire if you don’t want anyone taking, using, and potentially making money off of your work. A Creative Commons license, on the other hand, offers a “some rights reserved” option, which permits certain uses of your work under

—–

Where you are correct is in saying that by choosing a CC license, the copyright holder is deliberately giving up many of the protections offered by copyright. CC BY does not remove all of those protections–that would be CC0, which is meant to essentially put the work in the public domain. You could certainly argue that the rights remaining under CC BY aren’t particularly valuable, but they do remain.

Ok, David, then answer my question, please. What right(s) do you think an author retains under copyright law that can be enforced after a CC BY license is chosen? Neither you nor Mike has yet responded to this question.

I’m confused about your point here. The author retains the right to attribution. You seem to want to insist that that isn’t technically under copyright law. Fine. Why is this an important distinction? Are you arguing that authors have *no* remedy if their CC-BY work is used without attribution? Or are you just pointing out that at this point it isn’t a remedy “under copyright law”?

The CC claims, according to Mike, that the CC BY license is a license that preserves copyright. He challenged my argument that the CC BY license effectively negates any rights under copyright and leaves nothing to protect, so it makes little sense, practically speaking, to say that the author “retains copyright.” That’s like saying the author “retains copyright” after transferring all rights to a publisher. The CC BY license, while not technically transferring rights, gives everyone a nonexclusive license to do everything with a work that is involved in the six defined rights under copyright. So, yes, because the rights have not been legally transferred, the author can be said to still be the copyright holder, but there is nothing such an author can do to “protect” any of those rights in a court of law, so being the copyright holder is a formal status only with no practical legal consequences. This may seem to be pure semantics, but I think the CC gets a lot of mileage out of pretending to protect copyright when in fact it wants to negate any meaningful copyright protection under that license, which as someone else pointed out, is the license that CC itself prefers.

The only protection is attribution; I’m not sure in what manner CC-BY is getting “mileage” out of claiming anything else. And yes I can see that the protection is from the license itself, not via copyright law, but I have no idea why that distinction is so important here.

Here’s the key quote, I think:

“The license makes my work available to all publications and products, whether commercial or non-commercial. Fine with me.

But Yahoo selling the stuff? Cheesy, desperate, and not at all fine with me.”

I like that the person quoted here does recognise that what Yahoo plan to do is indeed covered by the licence. He doesn’t seem to be confused, just unhappy. And I can understand that, although I wouldn’t share his unhappiness myself.

He seems to realise that Yahoo stand on firm legal ground, while thinking that morally their position is not so good. What he really wants is a form of words along the lines of “This work is licensed CC By, but if you make money from it I would really appreciate a slice, thanks”. And that kind of sentiment, of course, doesn’t belong in a licence.

So this guy is not confused. But some others are. For my money, the biggest cause of confusion is the wording you too often see, “available under a Creative Commons license”, as though all Creative Commons licences are the same. It’s like saying “I will be travelling by vehicle”. It tells us something, but it makes a huge difference whether you mean a bicycle or an airliner.

So I think there are two issues conflated here. To one, the solution is just to be more explicit about licences. To the other, there may be no good solution. In this particular case, Yahoo’s best option might be simply to voluntarily pay a royalty to their CC By users as well as their all-rights-reserved users. It will cost them some money in the short term, but position them as Good Guys in the long term.

In this particular case, Yahoo’s best option might be simply to voluntarily pay a royalty to their CC By users as well as their all-rights-reserved users. It will cost them some money in the short term, but position them as Good Guys in the long term.

I’m really surprised to see you, of all people, taking this approach, as it seems to defeat the entire purpose of the CC BY license. Let’s say I’m a text and data mining company and I want to sell an annotated, taxonomically ordered database of the research literature. Should I feel obliged to pay a royalty to all authors of OA papers with CC BY licenses that I’ve included in my database? Didn’t they say I could do this by choosing that license?

If I’m Ronald McDonald and someone walks into my restaurant with a cow, stands on a table and announces that anyone can do absolutely anything they want with the cow, should that person be unhappy if I take the cow and make it into hamburger? If they are, then why did they make that announcement? Clearly there must be some confusion if they chose a particular license that allowed something they didn’t want.

Should CC BY only apply to companies under a certain size, and bigger companies have to treat it as “all rights reserved” in order to look like “good guys”? Where is that line drawn?

Let’s say I’m a text and data mining company and I want to sell an annotated, taxonomically ordered database of the research literature. Should I feel obliged to pay a royalty to all authors of OA papers with CC BY licenses that I’ve included in my database? Didn’t they say I could do this by choosing that license?

No, you should not feel obliged; neither should Yahoo. I am talking here about what would be good sense (and good manners) for them, but they’re under no obligation to follow my suggestion; and that’s by design.

(Also: your example is rather different — morally, not legally — in that your text-mining company is creating new value through a radically transformative use of the CC By resources, rather than merely selling copies.)

Should CC BY only apply to companies under a certain size

Certainly not. Standard definitions of openness explicitly prohibit discrimination against fields of endeavour.

[…] and bigger companies have to treat it as “all rights reserved” in order to look like “good guys”? Where is that line drawn?

There is no line. It’s for the companies to make their own best judgement about whether what they make in money is worth what they sacrifice in goodwill — and vice versa. There’s nothing new about this: it’s the kind of judgement companies have to make all the time.

I just discussed this case study in a seminar together with students. Here the concrete question referring to scholarly publishing was: What does this mean for me as an author of an article which I had posted as CC-BY? Does it mean that somebody (for example a publisher) may take my work, bundle it with other works in that field and then sell the whole stuff as compiled edition or something like this either electronically or in print? And I will get the credits but no royalties?
What would be the recommended license alternatively?

What does this mean for me as an author of an article which I had posted as CC-BY? Does it mean that somebody (for example a publisher) may take my work, bundle it with other works in that field and then sell the whole stuff as compiled edition or something like this either electronically or in print?

Yes.

And I will get the credits but no royalties?

That’s correct.

What would be the recommended license alternatively?

You can prevent this by using CC By-NC instead (the Creative Commons Attribution Non-Commercial licence). There are two problems with this. First, people choosing an NC licence hope that they will force an alternative where they are paid a royalty, whereas in fact what happens 99 times out of a hundred is that their work simply isn’t used. And second, many research funders explicitly require the use of CC By precisely because they want the work they fund to be used as widely as possible, so they get the most effect for the investment.

Yes, this is completely allowable under CC BY.

As Mike notes below, alternatives range from traditional copyright to other Creative Commons licenses that prohibit things like commercial exploitation of your work without permission or the creation of derivative works (anyone who republishes it can’t alter it in any way).
More here:
https://creativecommons.org/licenses/

“Does it mean that somebody (for example a publisher) may take my work, bundle it with other works in that field and then sell the whole stuff as compiled edition or something like this either electronically or in print? And I will get the credits but no royalties?”

Yes, that is exactly what CC BY means.

One option can be giving the choice to scholars whether they want to publish under CC BY or CC BY-NC? The latter is almost like CC BY but the work can not be used for commercial purpose without express permission from authors. However, in this one major issue will be if the publisher itself wanted to reuse the published work for commercial purpose.

I think your title has it spot on. Most people don’t understand the creative commons licences. They think copyright is a Bad Thing (because everyone has been telling them that for years) so open access must be a Good Thing. It’s only when events like this make people think about what the CC licences actually mean that they then realise that you can have too much of a Good Thing…

From the cnet report, it looks like Yahoo are selling a service (prints on canvas) rather than licensing images per se. There’s nothing to stop people from doing exactly the same thing themselves via photobox or snapfish or your local photographic print shop, so the issue is more about Yahoo leveraging their ease of access to a vast library of photographic material, rather than exploiting CC BY licenses for a profit.

I think it’s poor form that Yahoo are choosing to do this and yes, I agree that they are sacrificing goodwill, but it is certainly not in contravention of the CC BY licence. However, I’ve just gone and checked the copyright status of all my photos on Flickr…

JMM, I hope you won’t mind my being pedantic, but I think we do need to be precise in our language on here to avoid misleading people — especially in the comments on a post about confusion! So:

I imagine what you meant is that you went and checked the licensing of your photos of Flickr (CC By, CC By-NC, all rights reserved, etc.) rather than the copyright status. Unless you signed it over (which Flickr does not ask you to do!) the copyright status is and remains Copyright JMM.

(And to be even more pedantic, “all rights reserved” is of course not a licence, but what you get in the absence of a licence.)

Fair comment – pedantry is required when it comes to copyright. Yes, you are correct in that I checked the licensing status of my photos.

I think it’s poor form that Yahoo are choosing to do this and yes, I agree that they are sacrificing goodwill

That’s the question I really have here, why people think it’s poor form for Yahoo! to do something that they’ve been specifically authorized to do. By going out of your way to put your photos under a CC BY license, you have declared to the world that you accept this type of reuse. If you think it is poor form or you object to this type of reuse, then you clearly did not understand the licensing terms you chose or you chose them disingenuously.

If I give you something I create and specifically tell you, feel free to sell this, is it poor form if you sell it?

I wonder whether what’s going on here is that people are happier with the idea of people making money from something that is a derivative of their work — especially if it involves plenty of its own creativity — than when its their work itself that’s being sold? Perhaps what such people really want is something like CC By-NC-when-ND — that is, use of the work itself is limited to non-commercial applications? (To be clear, I am not suggesting that such a licence ought to exist, just trying to get into the headspace of the disgruntled Flickr users.)

Honestly, reading the various rants from Flickr users, it seems more about “who” is doing the reusing than how it’s being reused. There seems an underlying assumption that it’s perfectly fine for a person or a small business to reuse their photo (say as a stock photo in an advertisement) but when a big profitable corporation does it, this is declared “poor form”.

For scholars who reasonably worry about how reuses of their work may reflect on their reputations, I have long pointed out the danger they face in having their work badly translated into other languages if they choose just CC BY license. That license requires the translator to attach the original author’s name to the translation, and if it is a really poor translation, other users may be misled into thinking that the translation accurately represents the work of the original author and hold him or her accountable for the what the users understand the work to mean as thus badly translated. The CC BY license in its original formulation included reference to distortion and other perversions of the original as ruled out by the license, but that language was dropped some years ago and there is no such protection in the current version of the license.

The CC By licence is perfectly clear that when creating derivative works such as translations, “You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use”. Indeed, it’s hard to see how it could be clearer.

The human-readable summary of the licence (linked above) is 108 words long. There’s really no excuse for not reading it.

You seem to have trouble understanding what I said, Mike. I said of course the CC BY license requires the user (translator) to give the name of the creator of the original article. But that’s part of the problem. The CC BY license offers no protection whatsoever against a poor translation, and whether the translator says the original author endorsed the translation or not, most people will assume that the author did since his or her name is attached to the translation. And with just ther CC BY license the author can do nothing legally about having the poor translation take off the market. Once a translation is done, moreover, there is much less incentive for others to re-translate the work. In fact, to protect himself or herself, the author may feel obliged to pay to have a better translation done that is explicitly authorized by the author!

P.S. You didn’t answer my question about what rights you think the author retains under copyright law once a CC BY license is chosen.

You didn’t answer my question about what rights you think the author retains under copyright law once a CC BY license is chosen.

Once any licence is chosen, the author retains all right except those waived by the licence in question. That is how it works — same for CC By as for any other licence.

You still haven’t answered my question, Mike. Give me examples of specific rights that authors retain after they have chosen a CC BY license. Perhaps the right to register the copyright with the Copyright Office? Yes, but what practical important would such registration be, since the author has through CC BY waived the right to sue for any re-uses of the work whatsoever, whether non commercial or commercial. What would the point of such registration be, which would cost the author money? The point of registering copyright is to enable the author to sue for statutory, not just, actual damages. But there can be no damages under CC BY. Why are you avoiding my question, Mike? I’m not saying there are no rights retained at all, but I just don;t see what the value of any such rights would be. I’ve given you an example of just such a retained right that is valueless.

Suppose someone republished your article under their own name and claimed ownership and copyright over it. Wouldn’t having a registered copyright on the article, even though you’ve given away nearly all the rights that come with it, come in handy in stopping that sort of plagiarism?

The right of attribution, as I said, is not a right under copyright law, so the answer to your question is no. You could sue under laws of misappropriation. Plagiarism, as the use of others’ work without attribution, is not per se copyright infringement unless it is the exact expression used and not just the ideas. But under CC BY you have already given away the right to control others’ republishing of your work. See my reply to Mike about copyright registration being a hollow right when a CC BY license has been chosen.

Are you suggesting that my holding a registered copyright for a work would not be helpful in preventing someone else from registering a copyright in their own name for that same work?

Sheesh, Sandy, do you really need me to type out and rephrase the contents of the CC By licence for you? OK, one more time, then I’m done with this thread, You’re welcome to have the last word.

When you use CC By, you retain:
1. The right for the published work to say “Copyright “.
2. The moral rights of authorship.
3. The right to attribution.
4. The right not to have derivative works presented as endorsed by you.
5. What the licence calls “other rights”, including publicity and privacy.
6. The right, should you wish, to sue for any breach of these rights.
7. The right to provide the work under other licenses for any purpose (e.g. someone who wants to use your image without attributing it can be licensed to do so on payment of a fee).

Most fundamentally, you retain the copyright itself. You statement at the beginning of this thread that “CC BY does indeed result in the entire renunciation of copyright protection” is not merely incorrect, it’s grossly misleading, and wholly inappropriate on a thread dedicated to reducing the confusion surrounding licences.

And with that, I’m done with this thread.

None of the rights you have listed, Mike, are rights protected by copyright law. There are no “moral rights” under US law (except for certain works of fine art). Publicity and privacy rights are not governed by copyright law. My point, which you seem to keep missing, Mike, is that “retaining copyright” is a hollow gesture if no real rights under copyright are protectible after you have chosen a CC BY license. Why do you keep missing this point?

If there is confusion as to the true meaning of the various CC licenses, the countervailing education effort needs to start with Creative Commons, the organization, itself. Spend a few moments on their web site using the interactive “pick a license” interface and it’s clear that they are trying to steer everyone toward CC-BY and away from other options. Note the pejorative language associated with all licenses except CC-BY.
Why does CC, the organization, do this? Your guess is as good as mine but it might have something to do with the sources of financial support that the Creative Commons organization receives. For those bent on investigative reporting, the old adage of “follow the money” remains a good heuristic.

> Why does CC, the organization, do this? … “follow the money”

I would do it, too, and I’m not getting money for it. But I think it’s important to make it clear to folks what it means – when I ask for a photo to use on Wikipedia, for example, I always try to make it clear that this allows someone to try to sell your work. After reading about the Virgin Mobile billboard I’ll now be sure to mention that someone might also e.g. use your work in ads in ways you might not appreciate.

If I make a photo cc-by, surely I’m ok with someone printing and framing it and hanging it on their wall. I’m also ok with them using a printing service to do this. I don’t see why I’d have a problem with Yahoo being that printing service. My concern here is that I’d be worried someone would pay Yahoo because they think they can’t get the photo for free (well, price of ink/paper) with their own printer.

The Virgin Mobile ad is much more troubling. I think education is really key here, as the article notes: if you don’t want your work used like that don’t make it cc-by.

For scholarly publishing, though, I think the real harm is probably minimal? These weird compilation books mostly prey on consumers, I think: I doubt any real harm is done to anyone’s reputation with those, they seem very marginal.

Yes, I think you have captured the issue for me… People paying Yahoo because they don’t think they can get the image for free. And before everyone jumps on me, yes, it does come down to reading the fine print in the licence (all 108 words of it:) )

Shifting slightly sideways, my issue with scholarly publishing’s exploitation of CC is nothing to do with copyright, but much more to do with the publishing agreements that “gold OA” publishers want you to sign, which to all intents and purposes puts you straight back in to a copyright transfer situation.

But anyone can access the images freely. What Flickr was charging for was a high quality print of the image on canvas, something most people couldn’t make on their own.

Yes David, that’s what I said in my original post. Anyone can do this using photobox or snapfish or any other service with any CC BY image from anywhere. I think what has people up in arms is the integration of a vast curated image collection directly into the Yahoo service. I don’t think people were expecting to have their content actively shared in that way.

I don’t think people were expecting to have their content actively shared in that way.

And yet they deliberately went out of their way to impose a license that specifically allows this to happen with their creations. If they were surprised by what happened, it suggests they did not understand the terms of the license they chose.

Or that they (reasonably or unreasonably) had other expectations beyond those laid down in the licence.

But if you sign a license that specifically says “do whatever you want, including commercially exploiting this work however you choose”, then is it reasonable to have the expectation that others will realize that you don’t actually mean it? Why go out of your way to choose a license that directly goes against your own wishes?

> But anyone can access the images freely. What Flickr was charging for was a high quality print of the image on canvas, something most people couldn’t make on their own.

Indeed: but customers can use other printing services; I should have said I’d be concerned about Flickr charging more than other printing services to take advantage of people not understanding CC-BY. I have no idea if they do this or not – I’m just saying this is the only thing I’d be worried about here.

Realistically, if someone can’t figure out that they can print a copy of a photo on Flickr themselves, or grab a copy and send to another printing service, then the details of CC licenses may be somewhat beyond their comprehension. And Flickr can only charge what the market will bear, and is fully within their rights to do so. There’s nothing in the CC BY license that says reuse has to be inexpensive. Flickr is also selling convenience here–this is where you found the photo, you can print it elsewhere if you make an effort, or you can just click here and order a nice print. Companies often charge more for convenience, and that’s not a deceptive practice.

Another lesson in “read the fine print,” particularly in the current “sharing economy,” when big companies with lawyers on retainer are anxious to make use of what many content creators believe they are sharing, in perpetuity, for free because they like and believe in the idea of open access and have come to believe, often through the efforts of those same lawyer-laden companies, that copyright is bad, bad, bad.

This really despicable tactic of Yahoo’s is yet another reason to read Astra Taylor’s “The People’s Platform” and Robert Levine’s “Free Ride.” It’s also a good reason to follow Frank’s advice above and “follow the money.”

This reminds me of a friend of mine who wrote a book about smart phone apps and self-published it on Amazon. She was thrilled being a published author and making a little money selling copies of her book. She was also appalled and furious when she found another web store selling her book for considerably more money. The site of course was simply buying copies from Amazon and reselling them at profit which is perfectly legal based on the first sale doctrine.

I can understand the gut reaction but it’s a little silly. What exactly is Yahoo selling? Anyone can download and print their own copies just like the dopes who bought the high-priced copies of my friend’s book could have gone to Amazon and not paid the extra markup. .

Doesn’t the CC BY license allow “predatory” OA journals to re-publish any such articles and thereby pretend to have more prestige than otherwise they would earn by just publishing original articles? They can pretend re-published articles are new, of course, without breaking any laws. Does anyone know how often such journals do this?

It does indeed, provided they attribute the article accordingly. It’s what happened in the linked example in the post above about the book from the predatory publisher. What was interesting there was that they didn’t attribute in a way that most though appropriate. However, no one (including the original publisher of the articles) took any legal action against them. It’s one of the big flaws in CC BY–you can claim a right to attribution, but pursuing that right can be very expensive, and there’s no motivation for a publisher to bother doing so. Basically authors are left on their own, and most don’t have the time or money to mount a huge legal battle over the matter. It sets up a situation where one may have a legal right under a license, but it is effectively unenforceable.

That said, I don’t see a lot of predatory journals republishing CC BY articles from reputable journals. You’d think it would be a common practice, done to make the journal look legit–see, here’s a list of famous authors who are published in our journal. But from what I can tell, most predatory journals are based more on a bulk/spammer sort of business model. It’s all about quantity, starting up 250 fake journals and spamming millions of potential authors. Spending any time putting together fake articles is perhaps not cost effective. Heck, I’ve seen fake journals claiming that Nikola Tesla was on their editorial board, which is about as much effort as most are willing to put in.

It’s one of the big flaws in CC BY–you can claim a right to attribution, but pursuing that right can be very expensive.

Note that this is also a big flaw in all-rights-reserved, or any other mode of distribution. Maybe we’d do better to call it a flaw in the universe. There are many bad things that can happen to us for which we are technically entitled to legal redress, but for which the expense (in both time and money) would exceed the likely benefit.

The difference being that under traditional copyright, you now have a financial motivation to make that pursuit happen, and often a publishing house with an in-house legal team dedicated to such pursuits. Under an author-pays model with CC BY, the publisher has earned all they’re going to earn from the content so there’s no motivation to go after licensing term violators. Under a subscription model, the publisher has something to lose and so takes on this activity on behalf of the author.

That is true. I would be interested to know how often, in practice, subscription publishers actually do pursue legal remedies on behalf of authors.

Well it would only happen if a paywalled journal’s articles were repackaged into a faux journal. Have you ever even heard of that happening? Even for OA journals, David Crotty noted “That said, I don’t see a lot of predatory journals republishing CC BY articles from reputable journals”, it doesn’t sound like it’s a significant problem in practice today. I suppose it is a thing that might theoretically start happening, and as a practical matter it does indeed seem less likely that an OA journal would take this on than a paywalled one.

I don’t think this will end up mattering a whole lot, though. If I took your “Head and neck posture…” paper, changed the author to EC Hackleman, and published it in a “journal”, how much would this likely really harm you?

Also, consider that if I didn’t copy it verbatim but sufficiently rewrote it, your publisher couldn’t use copyright to go after me in the first place even if financially motivated.

It happens more than you might imagine, but not with other journals republishing articles but rather book publishers creating print anthologies or aggregating articles on websites in electronic form and selling access to the aggregations. At Penn State we ran into this problem, sometimes with major commercial publishers. In one instance, one such publisher put a chapter from one of our edited volumes online, without permission, and even changed the chapter’s title. We complained on behalf of the author, and the publisher settled without having to go to court. Many university presses are finding not just chapters but whole books pirated on BitTorrent sites, and the effort to get them taken down is endless. We all call it “whack-a-mole.”

To clarify, are you seeing pirated books and anthologies of pirated articles that do not have the author’s name on them?

All the instances I know of have the author’s name attached–even if the title has been changed.

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