Google granted the wish by integrating the ability to search images based on rights licences into Google Image Search. Yahoo! Image Search has had a separate image search facility for years, but Google integrated the feature into its main index.

The idea of making the licences machine-readable was a long-standing desire of the project, and lauded as a clever one. It was intended to automate the business of negotiating permissions for using material, so machine would instead negotiate with machine, in a kind of cybernetic utopia. Alas, it hasn’t quite worked out.

As Daryl Lang at professional photography website PDN writes, the search engine is now choked with copyright images that have been incorrectly labelled with Creative Commons licences. These include world-famous images by photographers including Bert Stern and Steve McCurry. As a result, the search feature is all but useless.

Since there’s no guarantee that the licence really allows you to use the photo as claimed, then the publisher (amateur or professional) must still perform the due diligence they had to anyway. So it’s safer (and quicker) not to use it at all.

What’s gone wrong, as Lang explains, is the old engineering principle of GIGO, or Garbage In, Garbage Out:

“The system relies on Internet users to properly identify the status of the images they publish, Unfortunately, many don’t… Many Flickr users still don’t understand the concept of a Creative Commons licence, or don’t care.

“It’s time consuming to put a different label on every image [in their collection], and there are no checks in place [our emphasis] to hold users accountable for unauthorized copying or incorrect licensing labels.”

So Google won’t take responsibility for the accuracy of the licensing metadata, and Creative Commons, as a small private internet quango, says it can’t afford to. (The disclaimer on the website is simple: go find yourself a lawyer.)

Just as we predicted, in fact: the filtering is less than perfect, and it’s a lip-service to creators. Now, why did it have to fail?

Perhaps it’s lousy education. The Creative Commons gang are more interested in evangelising a fixed view of the world, rather than giving users a rich, nuanced and disinterested view of creative digital rights. Perhaps, as dogmatists, they’re predisposed to see copyright as a problem, rather than a set of tools.

For example, you’d never know from the all the CC white papers, cartoons and promotional movie clips that, as the copyright holder of a cool photograph you’ve taken, you can waive your rights selectively: allowing bloggers you like to use it, but reserving the right to haul in a payday if a big publisher takes it, and exploits it. To enjoy this you don’t need a funky Creative Commons licence: established copyright law already gives you this amazing flexibility.

Or perhaps the Commons gang can’t explain what they’re about because it’s so confusing, they don’t understand it themselves. Four years ago, I pointed out that licences can’t be revoked. This brought a spluttering, outraged response from a former sports hack called JD Lasica, who angrily spewed forth that this was nonsense, and I’d got it all wrong.

A couple of days later, he was corrected by Professor Lawrence Lessig – who designed the wheeze – and said that irrevocability was actually part of the plan. Irrevocability, he said, was really cool.

The point to remember here is that Lasica is on the Board of Creative Commons. If he doesn’t know what he’s talking about – then who does? Fortunately there is some extremely good literature on the web that explains creative digital rights without Creative Commons’ dogmatic wonkery. There’s an excellent up-to-date guide by Professor Jane Ginsberg of Columbia University Law School, called Public Licenses: The Gift That Keeps On Giving (the title is a reference to irrevocability). It explains lots of things the Commons propaganda material doesn’t.

The moral?

Ignore the Commons licences – they may be bogus, and misuse is costly. Do your own due diligence.

And know your rights.

The blog posted a short piece by Le Guin, erroneously slapping a Creative Commons license on it.

“This is incorrect,” wrote her representative. “Ms. Le Guin has not placed this work under such a license and retains these rights. Ms. Le Guin has not given blanket permission for everyone to copy or create derivatives (which can include film, TV adaptations, etc.),” Andrew Burt told SF author Jerry Pournelle.

Robo-bloggers who act as repeaters of Boing Boing material – vital nodes in the Hive Mind, we like to think of them – added to the confusion.

“Numerous copies of her piece have been discovered on the web and attributed to boingboing, illustrating that many people are being mislead by this incorrect application of a Creative Commons license.”

“Given Doctorow’s intense interest in issues of copyright,” added Burt, “it is easy to imagine that he has let his wishes run ahead of reality, and so committed some serious ethical and legal errors, which he might wish to begin to redress by taking the Le Guin piece off his site and putting an apology in its place.”

Boing Boing has since truncated the excerpt, but declined to apologize or remove it. There’s more details on Pournelle’s letters page here.

It’s another example of the confusion generated by Creative Commons licenses – the autistic person’s answer to a problem that doesn’t really bother anyone. If even the most dedicated, foaming-at-the-mouth Commons evangelists can’t use it properly – what hope do us mortals have?

The license-abuser, Cory Doctorow, was recently a professor at the University of Southern California – where he was lecturing students about copyright.

In its first incarnation as a print ‘zine back in the late 1980s, “bOING bOING” (as it was) was one of the most highly regarded chroniclers of cyber culture. The title was revived in blog form as a self-promotional vehicle seven years ago.

This is how it looked before the Trotskyist-style takeover. And this is what it looks like now.

Quite a difference.

Filmmaker Damon Chang uploaded a family photograph of his young niece Alison to Flickr, only to discover weeks later that it was being used by Virgin Mobile in an expensive advertising campaign. Neither Alison Chang nor her youth counsellor Justin Wong, who took the photograph, have received compensation for the use of the image – having handed over the rights without realising it. Damon Chang used a licence which permits commercial reuse – and even derivative works to be made – without payment or permission of the photographer: Merely a credit will do to satisfy the terms of the licence.

Both Changs believe the use of the photograph was insulting and demeaning, as Alison – a minor – became known as the “dump your pen friend girl”. And after taking legal advice, the Chang family is now suing Virgin Mobile USA and the Creative Common Corporation.

Virgin hoovered up over 100 “user generated” images for its ad campaign – saving itself a fortune. The lawsuit accuses Virgin of invasion of privacy, libel and breach of contract, but it’s the section of the lawsuit that names and shames Creative Commons that promises to have lasting consequences for “Web 2.0″ and “user generated content”.

“Creative Commons owned a duty to Justin Wong,” argue the Chang family in the complaint, but “breached this duty by failing, among other things, to adequately educate and warn him… of the meaning of commercial use and the ramifications and effects of entering into a licence allowing such use.”

Virgin had said it believes “…the spirit of the Creative Commons agreement matches Virgin’s philosophy.”

(A philosophy of getting stuff for free, is presumably what they mean.)

In fact, in all but one detail, this is the “Creative Commons” working exactly as it should: Making it easier for images to be re-used, without permission or compensation to the creator. In the parallel economy of “Web 2.0″, sharecropping is the norm. Virgin goofed in only one respect – by failing to credit Justin Wong, which it could have done so in tiny print. Otherwise, it got the free ride it wanted, thanks to the Creative Commons.

In this enthralling thread on Flickr (spare five minutes if you can to read it) – Alison discovers, to her horror, that she’s famous – and lawyers rally round to help. Here’s how it starts:

Alison Chang discovers how her image has been used. Surely a defining moment in the history of “user generated content”?

Alison’s brother Damon explains his motivation at length in this message, further down the page.

“People allowing commercial usage of their photography on Flickr are suckers being taken advantage of,” is the advice from one of several professionals who pitched in.

“With all the money [Virgin Mobile] saved on photography through this campaign, they will probably break even on fees for the attorneys they keep on regular retainer anyway.”

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"?

Liblicense is a project that Creative Commons hopes to integrate with MIT Media Lab’s OLPC, or One Laptop Per Child initiative. That’s the rubbishy sub-notebook designed for developing countries, that developing countries don’t seem to want very much. (Shockingly, the ungrateful recipients seem to prefer real computers).

The genius of the move is that instead of needing to hire shifty lawyers to bamboozle artists out of the right to be paid, Creative Commons makes the process not only voluntary, but automated, too. Liblicense will greatly ease the process of assigning a Creative Commons license to creative material straight from the desktop.

“Imagine finding a brilliant poem on a blog through Liferea you can base a video or song off of,” burbles one of the developers Scott Shawcroft.

Now imagine making a million-selling hit from one of these poems, and not having to pay the original author a penny. Cute, isn’t it?

The system depends on ignorance, of course. Today, there’s nothing to stop poets posting brilliant poems to the internet while retaining their full rights. There’s nothing to stop you reading them. And there’s nothing to stop songwriters “basing” songs from these poems – although if they “base” a hit by plagiarizing the material a little too obviously, they can expect a lawsuit. The system works very well, although it’s loaded heavily in favour of plagiarizers. Getting someone to bat on your behalf if you’re up against a Bono isn’t easy, and is harder still if you’re in Ethiopia or Mali.

But up pops Creative Commons, with a solution to a problem that doesn’t exist – with a solution that generates its own byzantine technical problems that you’d have to be a lawyer or a nerd to love.

(Not surprisingly, lawyers and nerds are the two groups keenest on this innovation).

The problem is, Commonistas are so evangelical about their crusade, they often neglect to explain the implications fully. If you, as a creator, forget to stick an NC (or “non-commercial use only”) attribute on your license, you formally forgo any chance of being paid, except by kind strangers throwing a penny into your begging bowl. Adding the NC attribute is greatly frowned-upon by ‘The Movement’, which calls it “very rarely justifiable on economic or ideological grounds”. However, that’s only because, their helpful explanation points out, ” … the decision to give away your work for free already eliminates most large scale commercial uses.

Guess whether that particular wealth-warning will be slapped on the side of an OLPC notebook?

Here’s an example of the confusion generated by these anti-copyright crusaders. When I drew attention to these problems two years ago, an agitated songwriter wrote in asking how a couple of songs he’d released under a CC license could be extracted from the license. He couldn’t do it, however, because he discovered the licenses are irrevocable. Oops.

(One can imagine situations where CC may actually be useful – such as on educational material, or reference material such as The Highway Code. But when it comes to works of art, the Commonistas are as naive as a hippo wandering into a minefield).

Much of Web 2.0 involves what’s called “sharecropping”, with aggregators profiting from the selfless unpaid labour of volunteers. The 1-Click Colonialism™ promised by the LibLicense/OLPC integration seems to use new technology to take us even further into the past.

CISAC is the body that represents the collectives who gather up the royalties on behalf of authors, composers and songwriters – and this week it’s holding its first ever Copyright Summit.

A lot of money passes through these collectives’ hands – they distributed €4.3bn back to authors in 2004 in Europe alone. But these pots of money, so painfully clawed back from large media conglomerates, are distributed amongst very many original creators. So as you can imagine, Lessig – who extolls amateur “user generated content” and litigates against professionals – was always going to be in for a rough ride from people who barely scrape a living from their own creativity.

What was the audience really vexed about? Well, when Lessig talks “rights”, he means the right to specify how a work is used by other users of digital computer networks. This doesn’t include the right to be paid, which is why everyone is here in Brussels this week. This pits a very American kind of individualism – the right to express oneself, dammit! – against a very European tradition of collective action.

In particular, the audience is keenly aware of this tradition of rights won through collective bargaining. Any weakening of this movement for authors’ rights is regarded in the same way as a striking union member regards a strikebreaker: as scab labour. Yet Lessig styles himself at the vanguard of a “movement”, too, which riles them even more: the creatives see this as not only undermining them, but pinching their slogans and clothes.

(In the USA, the objections to Creative Commons were subtly different: that it was bureaucratic, deceptive, or simply that there was little merit in eulogising Bad Art).

The authors’ sentiments expressed this week are genuine and well-founded, but they may be guilty of over-estimating the opposition they face.

Olive branch

The format for the debate helped foster a civilised exchange. Lessig was pitted in a head-to-head with a sensible opponent: Brett Cottle, head of Australian collection society APRA, and chairman of the CISAC board. Brett quietly went about his task of dismantling the Creative Commons proposition, civilly and without hyperbole, and the professor, to his great credit, responded in kind.

After the opening exchanges laid out their respective positions, Lessig held out an olive branch. Although he’s defending Google in a copyright infringement suit against Viacom – Viacom wants to be paid for the use of its copyright material on YouTube, Lessig agreed that YouTube should in principle pay creators.

“Copyright is crucial,” he said.

The professor said he favours licensing schemes that would recognise “a second class of creators”.

This was a delicate piece of politics from Lessig, who has close ties to the defendent. Google sponsors Lessig’s law department (http://www.law.stanford.edu/news/pr/48/Google%20Inc.%20Pledges%20$2M%20to%20Stanford%20Law%20School%20Center%20for%20Internet%20and%20Society/) up the road at Stanford to the tune of $2m, and when the professor wrote an op-ed article in the New York Times last year defending the $150bn internet giant, some bloggers suggested, not unreasonably, that this fiduciary affiliation should have been made more explicit. Perhaps, they suggested, Lessig should have been accredited more accurately – for example – as the “Professor of Google Studies, Google Cyberwhizz Dept, Googleford.”

So creators should be paid, but only a secondary class of creators. Where that leaves the primary class of creators is anyone’s guess.

Please don’t misunderstand me

To illustrate his point, Lessig condemned Lucas Films for its recent invitation to Star Wars fans to send in “Mash-Ups” of the movies, and yet retain for itself a perpetual global license on the creative work submitted. Lessig saw this as the cheesy, cynical PR move it is: “That’s sharecropping,” he said.

But Brett had a broader point, one shared by most of the audience. No matter how much Lessig says he believes in copyright, his “movement” of evangelical network utopians wants to tear it down.

Why? Because copyright, and in particular the aspect known as droit d’auteur (the author’s moral rights to assert how it used), creates “friction” for network utopians. What’s bad for the network is bad for us, they argue. Network utopians dream of a universe running like a smoothly oiled piece of clockwork machinery – much like the benevolent machines in Brautigan’s famous hippy poem Cybernetic Meadow. When they need to ask for copyright – or pay a creator – it messes up what they think is the perfect, smooth running of the network. Creative Commons, as this reporter has argued before, is designed for the benefit of the network, not the author. The licenses are a minor technical bugfix to a borderline problem, that of obtaining rights clearance rapidly in a digital age. And for that limited purpose, they’re a creditable answer.

But Creative Commons isn’t sold as a minor bugfix, Cottle noted, so much as a moral crusade. Every time the scheme is launched in some new territory, pointed out Brett, it is accompanied by a cacophony of anti-copyright rhetoric. This rhetoric lumps creators in with The Enemy – The Man:

“Don’t treat the authors as if they’re record companies,” he pleaded. “We’re at the bottom of the food chain.”

This got Lessig defensive.

“Nobody who works for Creative Commons has ever attacked collecting rights societies in the way you described,” he said. Maybe it was the volunteers who’d put such notions about, the professor ventured.

The audience bristled, making what we interpreted to be indistinct but firm Gallic noises of disapproval.

Lessig continued,

“I assert that there is no fundamental disagreement between the objectives of the Collecting Rights Societies, as you’ve described them, and the objectives of Creative Commons.”

Oh yeah? said Cottle.

Yeah, said Larry.

“People misunderstand me from all perspectives,” he pleaded.

At this point a deep, tumultuous groan shook the hall. And it was some moments before anyone could hear the stage again – not that anyone was paying any attention.

Once again, and to his credit, Lessig explained his dual roles.

“I have two lives,” he said. “One is in Creative Commons. And the other [is leading] litigation which is, I’m sure, in conflict with the views of many people about copyright.”

Voila! we might say, if our French was up to it. By day, I am your friend, he was trying to tell us; but by night, I litigate against you, you intransigent, Luddite Bastards!

I love you so much, I’ll see you in court

Now you can begin understand the antipathy in the room. However, there’s much ado about not very much. Creative Commons as a “movement” is far smaller than it looks. It can barely muster 100 or so evangelists to the cause every time it “launches” in a new country (Brazil being the exception – every 50 years or so, Brazilians go nuts over some new technocratic new Silver Bullet, and right now they’re really hot for Creative Commons). Isn’t CC only worth getting upset about if you really want to?

Reg columnist Steve Gordon agreed: “Lessig isn’t the enemy,” he told us.

Larry, rather unconvincingly, attempted to grab the middle ground:

“We are not your enemy,” he said. “There is an Abolitionist Movement and I spend much of my time arguing against them. Because they’ve built Free Software and Wikipedia they don’t think copyright is needed.”

“With Creative Commons…we’ve created copyright owners, here.”

Alas, anti-copyright rhetoric is central to idea of to what enthusiasts like to style as a “movement”. Creative Commons gatherings resemble a torchlight procession of copyright haters, united by only one thing: a shared belief that It Must Go. Put it this way: if the good professor attended each brave Creative Commons launch asserting the value of moral copyright, and that the soul of creativity lay with the individual author, then no one would turn up.

So when Lessig argues that he’s the sensible face of the internet wingnuts, the authors aren’t convinced one bit.

There were more groans when Lessig explained the practical value of Commons licenses.

He said that copyright worked fine if you were Madonna, and had a battery of expensive lawyers to assert your rights in court. He justified the Commons licenses as a “tool” that put such power into ordinary people’s hands. Creative Commons was a tool for people who didn’t have lawyers, he was arguing.

And he put this so nicely that if you didn’t know anything about how copyright works – or didn’t know about the power of collective action – you might conceivably believe him.

Alas, the small print on the Creative Commons site confirms the opposite is true. Creative Commons emphatically isn’t an organisation that will fight your corner. So if you want to assert that your license has been violated – you’re on your own. In fact, Lessig even recommends consulting a lawyer before you decide whether or not to take up a Creative Commons license.

Get with the program

In the end, two things happened.

Firstly, Lessig kept his best ammunition dry, to be deployed another day. Only around a third of this audience were actually creatives: the majority being bureaucrats, who looked every inch the part in their beige suits, comfortable, and well-fed. While your reporter typed at the back of the hall, these CISAC executives slumbered, waking only to make the odd cynical disparaging comment.

A future version of the professor – 3.0? – should be able to make the case that authors are ill-served by such complacent types, and he may use his communication gifts to show them how to embrace law and technology better. For now, however, he’s synonymous with a “movement” – one based on a fatal flaw – that eulogises clips of cats falling down stairs, or really lame remixes.

For his part, Brett gracefully, and very charitably, concluded that “more clarity” was needed from the Commonistas if they were to make more headway with authors, songwriters, and composers who appreciate a bob or two for their labour. It would help clear up such misunderstandings, he said. But until it did, it was a “sad mirage” that offered false hopes.

Irish film maker Keith Donnell stepped up to the microphone, and congratulated both debaters for their presence:

“…And I’d like to congratulate Lawrence Lessig for his bravery…in coming here and making such an unsustainable argument”

“By allowing people to redefine copyright he’s playing into the hands of people who over the years have tried to redefine copyright – so people like me don’t get paid.”

Beginning with Monday’s comic, radio interviewer Mark questions aging rock star Jim Thudpucker about “free music”. Thudpucker returns with a barrage of techno utopian babble that suggests he’s been inhaling the heady vapors of the blogosphere.

“There are no rock stars any more!” insists Thudpucker. “With file sharing, we’re being liberated from the hierarchical tyranny of record sales… Careers henceforth will be concert-driven, fragmented, and small!”

“And fan bases?” asks Mark.

“Will be kept in Palm Pilots!” replies the blog-brained Thudpucker.

This brilliant satire of the belief that technology can by itself topple entrenched institutions will be familiar to anyone who’s picked up a copy of Wired in the last decade. Thudpucker is an ever-present type at any blogging convention. The conversation continued throughout the week, and we won’t spoil any more of Trudeau’s punchlines, except to note that he captures the other worldliness of this strand of techno utopian idiocy very sweetly.

What’s wrong with this picture?

Well, there’s nothing wrong with utopianism in itself: it’s simply a wish for a better world, and we should all be able to imagine something better. But when utopianism becomes a denial and a retreat from the real world, it serves no useful purpose. It becomes a distraction, draining time and energy from what can be achievable. And like fringe political activism, it can eventually become no more than a psychological crutch for its advocates.

Creative Commons – launched by Professor Lawrence Lessig after a catastrophic Supreme Court defeat two years ago, which set back the copyright reform cause by many years – is one such noble idea.

But there are reasons why the campaign – widely blogged, but even more widely ignored – has failed to gain much traction.

Broadcaster Bill Thompson picked on one reason why the campaign has got nowhere fast. (Try calling the Creative Commons office in the hope of finding a human on the other end of the line and you’ll realize another – there’s no one home.)

But Thompson highlights the legalistic, American-centric basis of the campaign.

“Lessig doesn’t understand why people in Europe care about an author’s moral rights, which are inalienable in European law. And because he doesn’t understand, he dismisses it. To an American constitutional lawyer copyright is simply an economic matter,” Thompson told us.

“I have an objection to the British National Party using something I wrote in their party political broadcasts. That’s my right.”

“I’m a critical supporter of Creative Commons, but I don’t accept US hegemony in this or any other area.”

So Creative Commons is emblematic of how even the best of the US fails to understand how the rest of the world works. Is this a failure of empathy? Or a deeper philosophical failure which places too much emphasis on the law, and therefore “hacking” the law? Your thoughts, as ever, are most welcome. As we know, you can’t throw an iPod in the United States without it hitting either a lawyer or an economist. And look where they’ve got us.

Fortunately we have more practical remedies to such escapist fantasies to hand. We only need to put them to work.

:Big Reg oops: Trudeau’s strip, which captures the flavor of the debate today, was originally published two years ago. And as the Professor says, you can’t hold the cause responsible for the wilder fantasies of its supporters. Quite correct.