Photo-sharing lawsuit targets Australian Virgin Mobile

A Texas family drops lawsuit against Creative Commons, will now fight Virgin Australia

A Texas family has dropped its lawsuit against the nonprofit Creative Commons copyright licensing organization, after an apparent misunderstanding over commercial use of a photo of a teenage member of the family.

Susan Chang of Dallas, filed the lawsuit in September against Creative Commons, Virgin Mobile USA and Virgin Mobile of Australia, alleging that the Australian company's use of her daughter's photo in an advertising campaign violated her privacy rights. But Justin Wong, the photographer who took the photo, posted the image on the Flickr photo-sharing site under the Creative Commons Attribution copyright license, which allows others, including commercial entities, to reuse the copyright work without paying for it.

Susan Chang and Wong accused Creative Commons of failing to "adequately educate and warn him .... of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use," according to their complaint.

Chang and Wong dropped the lawsuit against Creative Commons and Virgin Mobile USA Tuesday. Their lawyer, Ryan Zehl, said the plaintiffs instead would focus on their lawsuit against Virgin Mobile of Australia.

Chang and Wong weren't seeking monetary damages from Creative Commons, Zehl said. Instead, they wanted the organization to add three sentences to its licenses clarifying that the license doesn't deal with privacy rights, he said. "There's only so far we can go with spending money without getting money in return," he said.

Creative Commons, launched in 2001, attempts to give copyright holders additional options for licensing their work. The organization has created a series of licenses between full copyright, in which all rights are reserved, and the public domain, in which no rights are reserved. The group's six licenses attempt to allow creators to have "some rights reserved." Three of the six licenses forbid commercial use without permission.

Creative Commons said Chang and Wong didn't have a strong case. Flickr users do not have to license their photos or allow reuse, and the Creative Commons licensing is not the default option, the organization said.

"Although we are confident that any court would have agreed that there was no valid legal claim against us, this is a good result," the organization said in a statement.

Still Creative Commons founder and CEO Lawrence Lessig said the organization will look at ways to make its licenses clearer to users.

"The fact that the laws of the United States don't make us liable for the misuse in this context doesn't mean that we're not working extremely hard to make sure misuse doesn't happen," Lessig wrote on his blog. "It is always a problem (even if not a legal problem) when someone doesn't understand what our licenses do, or how they work. We need to work harder to make that clear."

Zehl said he's not convinced Creative Commons will make license changes his plaintiffs have asked for. The organization so far has not acted, he said. "Maybe they will, maybe they won't," he said. "We can't spend all day trying to get them to do something they should've done in the first place."

The lawsuit cost the nonprofit about US$15,000, Lessig wrote.

Lessig also apologized for the confusion. "We thought the meaning was clear," he said. "We work hard to make this as clear as we can. We will work harder."

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