Development of Creative Commons licenses

[rob AT robmyers.org]

I am not CC, I am not a Lawyer, this is not legal advice.

Quoting "Dr. Augustine Fou" <acfou AT PictureSandbox.com>:

> - since Flickr does not allow photo-specific CC version specification (just
> 1 of the 6 license-types, not version), how does a Flickr user specify a
> version they want to apply to a specific photo; how does a user prevent
> Flickr from automatically upgrading the CC version without their consent?

The main CC licenses from version 2.0 up contain an "upgrade clause"  
that allows derivative works to be relicensed under a later version.  
Pegging the version number has limited utility given this.

I'm not sure about Flickr's Ts&Cs or how they would upgrade users, but  
their CC licenses do seem to be stuck at version 2.

> - whether PictureSandbox is a licensee of the photo in the case where the
> photo appears as a thumbnail in search results presented on the
> PictureSandbox website (which uses the Flickr API to return such results),
> even if just for a moment

I don't think that duration is a factor. And in the absence of any  
other permission to alter and collect the work into a thumbnail page,  
the only permission you have to do so will be that given by the CC  
license.

Unless you claim Fair Use:

http://www.vnunet.com/vnunet/news/2190173/google-cleared-porn

> - whether PictureSandbox overlaying a watermark in search results (which
> says (CC) image owner's name) constitutes a "derivative work" and therefore
> "use" of the photo

Very likely. It looks different but contains the original work, that  
sounds very much like a derivative work.

> - whether PictureSandbox is the licensee in the case where a user uses the
> "phreetings" (photo + greeting) interface on the PictureSandbox website (
> http://www.picturesandbox.com/card ) to create a phreeting and send it to a
> friend, or whether the user is the licensee of the photo

Pass.

> related: whether PictureSandbox's "phreetings" constitutes commercial use if
> the business is commercial but the phreetings feature carries no ads, does
> not drive traffic (since it is a private, person-to-person communication).

I would say that it is commercial but do see the detailed guidelines:

http://wiki.creativecommons.org/NonCommercial_Guidelines

> - whether PictureSandbox is responsible for policing the contents of a
> CC-licensed image to ensure it does not contain someone else's copyrighted
> work (i.e. someone stealing someone else's photo and uploading to Flickr,
> and applying a CC license to it)

Pass.

> - can PictureSandbox witness/notarize a Creative Commons license between
> image owner (the licensor) and the user (the Licensee) when the image owner
> is not made aware of this?

CC licenses are public licenses. They are applied to a work and then  
anybody can use the work within the boundaries set by the license. You  
do not arrange for the license to apply a single user, so I don't  
think you could witness/notarize the license in this way. In  
particular the U.S. licenses are not contracts (IIRC).

What you could do is to use or set up a service that grabs the image  
metadata at a particular time to confirm that the image was available  
under that license when you or your customer used it.

> related: if PictureSandbox just witnesses the license between the licensor
> and licensee, is PictureSandbox a party to the license?

I don't think you can meaningfully witness/notarize a single user of a  
public license so I don't think this would be an issue.

Depending on your service (which I have not looked at) you could be a  
host and claim DMCA protection, or you could be a service and look at  
how e.g. Kinkos handles copyright policing.

- Rob.