Family Misunderstands Open Source, Panics, & Sues the Wrong Person…

Open source is supposed to be a way of simplifying licensing issues and sharing your software/music/video/other content with the masses — freely and magnanimously. Problem is, what happens when something open source is found to be a (possible) violation of some else’s rights? What happens to its derivatives? Do they just pack up shop and find something else, or are they legally responsible for their actions? In what seems poised to become a landmark case on this issue, we’re about to find out.

A Texan family is now suing Virgin Mobile for using a photo of their daughter, Alison Chang, in an ad campaign – the catch is, it was released by the photographer on Flickr under the Creative Commons Attribution license, and that’s where Virgin Mobile got the photo from. The problem is, the girl featured in the photo had no idea her photo was being used – or that it was released under the Creative Commons license.

As the case currently stands, the Changs are suing consumers of open source works and not the original party responsible for the release of the work as an open source material without a proper media consent form.

It gets more complicated than that. Appearances in the media need a media consent form, but posting a photo online technically doesn’t. At least, not yet — is this another issue at stake? So in this case, a photographer posts a photo online, fully within their rights and releases the photo itself as an open source work. Then the open source work (and not the actual person) is used in a media appearance – what’s the ruling then? Why is the family suing Virgin Mobile and not the photographer? Do they (and their lawyer) fully understand the concept of open source and creative commons licensing? Do end-users of open source material have a legal obligation to ensure that the material they use was cleanly and wholly legally released as open source in the first place? Just how far does one have to go?

Still not confusing enough for you? Well, Virgin Mobile added insult to injury, captioning the photo in their advertisements with what amounts to – more or less – an insult to Alison Chang. Is the question of whether the subject of an open source’d photograph can be used against one’s self a legal or a moral issue? Does releasing a photo to the public under a lax license let it be used by anyone for any purpose, even when “hurting” the original producer/subject?

This is quite the legal tangle, and we’re betting it’ll be settled out of court – but even if it is, it’s certain to come up later in one court case or another. We’re not lawyers, but this is clearly a case that poses quite the risk to open source, attempting to redefine just how “open” it really is. Here’s a re-cap of the issues at stake:

  • Are “consumers” of open source legally liable for using “dirty” open source’d code? Do they have a legal requirement to verify its validity before using it?
  • Will legal consent forms be required for simply posting photos online? What about “personal” sites like Flickr, MySpace, and Facebook?
  • Just how global is an open source copyright? In this case, Virgin Mobile Australia is charged with breaking a US copyright.
  • Previous court cases have ruled that bloggers are journalists in their own right. Does the freedom of press protect online photo-journalism, too?1

It’s unlikely that all of these issues will actually appear in a court of law, but it certainly is possible. The first and second are very likely to appear, and have far-reaching effects; whereas the latter two are stretching it a bit, but anything is likely when money is involved. Creative Commons has an optional “country” setting that determines, in the case of a legal dispute, which country’s laws and jurisdictions shall apply. We have no details at the moment which setting was specified, but the default is USA, and that’s where the photographer and subject both resided. The Creative Commons license is recognized by law in both the United States and Australia.

Should it actually be ruled that Virgin Mobile is guilty as charged, a huge online panic in the open source community will likely ensue. At the moment, most big open source projects perform a cursory check on any code/content submitted for possible legal violations (and, let’s be honest, for plausible deniability more than anything else). But in some cases (read: Wikipdia) it’s almost impossible to practically do so, thanks to the enormous volume of content being constantly contributed and the difficutly of vigorously checking it for legal trespasses. What happens when you can no longer simply trust the EULA that ships with a particularly code library? Or when the content you grab off of Wikipedia (technically licensed under the GFDL) isn’t as open source as it claims to be? And most importantly, that using such “dirty” materials makes you, in the eyes of the law, guilty of content/idea theft?

If any ruling of this sort were to be passed with an actual verdict on the open source angle, it would instantly destroy the entire spirit of open source. No one would be able to trust any open source project or the other, destroying one of the most important benefits of using an open source license the first place: being able to instantly convey the rights a consumer has or doesn’t by simply telling them it’s “GPL” or “BSD” or whatever. You’d need something tantamount to a chain of custody for each and every modification/copy, telling people exactly where each bit of code or content came from and what grounds you had to use it, and no project would be safe without a lawyer of its own. In a word, it’d be the death of open source… In the United States, that is; because the rest of the world (for the most part) is blissfully immune to many of the issues outlined in this post.

Not only does the United States system of copyrights and software patents have to be rewritten to prevent ridiculous things like this taking a toll on the entire open source industry, but also a legally-recognized free software “Bill of Rights” needs to be drafted to ensure that lawsuits like this one don’t jeopardize everything that the online community has been working on for decades. Just like the current Bill of Rights defines basic freedoms for US Citizens that no law can overrule (the Patriot Act excluded because GWB says so), free software needs a similar document to set down its (proverbial) foot and ensure that open source lives on – freely, as it was meant to be.

It’s important to note that the Creative Commons license that the photo was released under was not marked as non-commercial, and that Virgin Mobile fully complied with the letter of the Creative Commons license, by properly citing the Flickr page the photo was grabbed from at the bottom of their advertisement. As far as Virgin Mobile is concerned, they didn’t really do anything wrong. It is no wonder most magazines still insist on getting explicit legal permission before including anything in their issues, even if the EULA/copyright is clearly indicated on the site/source!
This might just be a case of a family trying to get rich quick; and if it is, it’s quite unfortunate that the entire spirit of open source has to be put on trial for a couple of bucks and a 16-year-old emotional teenager’s injured self image. If it’s not, it’s still a damn shame.

  1. In this case, we’re referring to the original “blog post” on Flickr by the photographer, and not the subsequent use by Virgin Mobile 

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