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Creative Commons sued for deception

Hey! What's wrong with our Sharecropping licence?

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Flattering to deceive

For long-time watchers of Creative Commons, it's simply the latest in a series of confusions and misunderstandings that leave creators a dollar short.

In fact, the "movement" itself is founded on a fiction - that somehow, the era of free movement of cultural goods is coming to an end, requiring a new set of legal mechanisms.

(Out in the real world, where thanks to broadband we can consume digitised versions of cultural products without paying a penny for them for the rest of our lives - with a negligible chance of getting nicked - the idea of a clampdown is laughable. If this is oppression, many of you are probably thinking, can we have more please? But without this fiction, the rest of the Commons edifice would have no reason to exist: it would be a legal conceit with nowhere to go.)

Few participants who slap a CC license on their work understand that the mechanism was designed to benefit the network, not the humans, by removing "frictions" such as compensation or consent.

Meanwhile, confusion abounds - and we don't just mean the bewildering farrago of licensing permutations.

After criticism that the foundation-backed non-profit appeared to offer something it didn't - legal backup - the Commons produced a "you're on your own - don't call us" disclaimer.

Then there's what to do if you change your mind. You can't. After we drew attention to this two years ago, even some prominent Creative Commons evangelists - and as a pseudo-religious cult with its own Messiah, it has a fair few of these numpties - were surprised to learn this.

(For example, a songwriter who'd put out a tune under a CC license discovered he'd given away his rights, lock stock and barrel - and couldn't do anything about it.)

A Commons licence promises freedom, but requires the creator to abandon several; including the freedom to assign one's rights as one wishes, according to principle or whim.

While the Changs have now ditched the CC licence for a more sensible "All Rights Reserved", they've only been able to do so because of Virgin's failure to attribute the photographer, and it's far from clear that their change might stick.

Earlier this year, marketing consultant Seth Godin used a similar licence the Changs had used for a freebie booklet he'd written , only to discover it was printed up and sold for profit without his knowledge, with no compensation. He couldn't revoke anything, because no terms had been breached.

Is there a better way?

Evangelists have reacted in time-honoured fashion - by blaming the user. Just as Wikipedians blame the user for absorbing incorrect information, and OpenOffice nuts blame the user for not fixing bugs they discover, Commonistas today have rounded on the poster for... posting the photograph to the internets. A bit rich, you might think, coming from the "sharing" community.

Of course copyright, particularly in the European context, affords the little guy plenty of protection and some unique advantages over would-be exploiters.

If the photograph had been released under conventional "All Rights Reserved" terms, then Virgin would have been obliged to check with the family first - and also throw some of its multi-million budget advertising budget to the 100+ photographers who made the campaign so memorable. And by taking advantage of moral copyright, or "droit d'auteur", you can oblige a tacky commercial opportunist to withdraw the work with one just phone call.

No wonder Commons licence evangelists hate to tell the truth about copyright: The truth is that the world has always ticked along just fine without them.

What are the chances the Commons will add a disclaimer: "Using this licence may invade your privacy, and seriously damage your wealth"? ®

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