Wednesday, February 16, 2011

Somebody stole my creative commons

Dear Rich: I'm a great believer in Creative Commons, and have used their "attribution, non-commercial, no derivatives" licenses for my work. A friend was searching for one of my hummingbird pictures, and told me that the search results didn't lead to my site. When I looked into it, the top results led to an aggregator/scraper site. My site was listed in a caption, but the links led back to the aggregator and, what was most disturbing to me, led to pages of thumbnails that were mostly pornographic. So, I guess, fun animal pics are a good way to get people to click through to crap. I'm upset about this, and I have no idea what to do. Do I have any recourse? Does a CC license mean that my work can be used this way? If not (I'm hoping the answer is "not"!), what's the next step? I'm very much not a lawyer (I'm a biologist) and hate dealing with legalese. If I hired a lawyer, what kind of expense would I be looking at? Hundreds of dollars, or thousands? What about the fact that people misusing my work seem to be more well known for it than I am. What to do about that? Sue Google for malpractice? Whoa ... you almost scared the Dear Rich staff away by using the "M" word. (FYI, malpractice claims are typically brought against professionals like a dentist, doctor, or accountant, not your search engine provider.) We're not sure what inexpensive non-legalese recourse you have but here are three things to consider before taking any action.
  • You have a copyright in your photos. You retain copyright when you make your work available under a Creative Commons license. As copyright holder you have provided a restricted license by which people can use your work without asking permission. If users (like the search aggregator) don't abide by the terms of the license then you can go after them for infringement. Here's an explanation of how it works.
  • Search engines and thumbnails. Your beef seems to have something to do with the use of your photos as thumbnails by a search aggregator. One hurdle for you is a 2007 court ruling in which a court ruled that Google’s reproductions of images from an adult men’s magazine website were permitted as a fair use. That's similar to a 2003 case that ruled that a search engine’s practice of creating thumbnails was also a fair use. Translations: courts are willing to tolerate thumbnail reproductions by companies that scour and sort the web for consumers.
  • Using the DMCA. If someone has copied and reposted your work without following the Creative Commons license, you can also pursue the matter with a DMCA Notice. Typically you file it with the company that hosts the website. But you can also have it removed from Google's Web Search results (even if you can't remove it from the website where it's posted).  Here is Google's online application form. If the company responds with counter-notice, then the material will be "returned" to Google's search results unless you file a lawsuit within 14 days. If you wish to sue in court, you will need a copyright registration. Also, if it's demonstrated that you had no right to ask for the DMCA notice, you could get hit with attorney fees.  
Bottom line dept. We're not happy about your situation but we also don't believe in pursuing legal remedies unless you can demonstrate economic damages. The last thing we want is for you to be dragged into an expensive time-consuming lawsuit over hummingbirds. Perhaps, a less expensive and less risky approach is to start with a DMCA notice.