Creative Commons on the Firing Line

Buried in this report of a privacy rights lawsuit arising out of the reuse of a photo posted to Flickr is the note that Creative Commons has been named as a defendant.  Apparently, the photo was tagged with a CC license that permitted commercial reuse, which means that the photographer has no claim for unauthorized commercial reuse.  But the girl in the photograph is suing the re-user over a privacy rights violation — and is also suing CC for distributing an unclear license form.

Huh?

The lawsuit, filed by the Changs’ lawyer, Ryan Zehl, from the Houston law firm Fitts Zehl, also names Creative Commons. Mr. Zehl said, “as the creator of this new license, they have an obligation to define it succinctly.”

He said that the term “commercial use” was too vague to inform users of the license and that it was incumbent on Creative Commons to raise the issue of the rights of the people who appear in the picture.

Mr. Zehl is a plaintiff’s personal injury lawyer, so his zealousness in identifying any and all potential sources of recovery is understandable.  But will this dog hunt? 

You can’t sue Congress for writing a fair use statute that is far more ambiguous than anything in a Creative Commons license.  Is CC more exposed?  As a private party, it owes ordinary tort duties to individuals who suffer injuries that are “foreseeable” to CC.  Given the growing intertwining of copyright and privacy and publicity torts, the plaintiff’s claim might not be so farfetched.

Can CC ride Section 230 of the Communications Decency Act ride to victory here?  Is CC a provider of an “interactive computer service” being accused of liability as “the publisher or speaker of any information provided by another information content provider”?  If CC can squeeze inside the service provider definition, then it may be off the hook,  thanks to the Ninth Circuit’s opinion in Perfect 10 v. CCBill.  Just about any state law claim against an information intermediary is barred by the CDA, so long as the claim doesn’t sound in a species of federal intellectual property law.

The case raises an interesting point that deserves greater examination later:  CC isn’t merely a conduit for the interests of creators and creative re-users.  A constructed collective like CC has interests and obligations of its own.  Where do those interests and obligations come from, and how to they play out in practice?