Schmap
I got an email this morning from a local company called Schmap — presumably as in “map, schmap.” I live in San Francisco and ocasionally post photos from my city wanderings to Flickr, licensing them under a Creative Commons Attribution-NonCommercial license. They’re putting together an electronic city guide and are selecting photos from Flickr to include. Seeking permission to include a cameraphone photo I took at a diner while studying for the bar exam, they wrote:
Your photo(s) shown below have been short-listed for inclusion in our Schmap San Francisco Guide, to be published March 2006.
The creative commons license that you’ve assigned your photo(s) provides for non-commercial use. While all our Schmap destination guides will be FREE to download, some photographers might nevertheless consider these to be commercial (advertising revenue will support free distribution to our readers) . . . .
This strikes me as an exceedingly smart way to develop a pool of free urban photography. Rather than plunging forward and planning to brush off infringement claims from small-time Creative Commons licensors, they decided to ask permission, trusting that photographers’ egos will lead them to grant it. And the license agreement they proffer is really quite fair:
THESE TERMS OF SUBMISSION (THE “TERMS”) REPRESENT A LEGAL AGREEMENT BETWEEN YOU, EITHER AN INDIVIDUAL PERSON OR A SINGLE LEGAL ENTITY (“YOU”), AND SCHMAP, INC. (“SCHMAP”). BY CLICKING THE “SUBMIT” BUTTON, YOU CONFIRM YOUR ACCEPTANCE OF THE TERMS.
1. PHOTOS
The term “Photos” refers to one or more photographs and/or images licensed by You to Schmap pursuant to the Terms.2. LICENSE GRANT
Subject to the terms and conditions herein, You hereby grant Schmap a worldwide, royalty-free, non-exclusive, perpetual license to include the Photos in the current and/or subsequent releases of Schmap’s destination/local guides.3. FAIR USE RIGHTS
Nothing in these Terms is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.4. LIMITATIONS
The license granted in Section 2 above is made subject to and limited by the following express limitations:
(a) Schmap may only distribute, publicly display, publicly perform, or publicly digitally perform the Photos pursuant to the Terms.
(b) Schmap shall be required to keep intact all copyright notices for the Photos and provide, reasonable to the medium or means of utilization, the name of the original author (or pseudonym, if applicable) if supplied, for attribution in Licensor’s copyright notice, terms of service or by other reasonable means, and a credit (implemented in any reasonable manner) identifying the use of the Photos in any derivative Photos created by Schmap.
(c) Schmap shall, to the extent reasonably practicable, provide Internet link(s) to your Photos.
(d) Schmap shall not sublicense the Photos.
(e) Schmap shall indicate to the public that the Photos are licensable to others under the Creative Commons license that you have assigned to the Photos prior to Schmap’s initial short-listing of your Photos, and provide a link to this license, where reasonably practical.5. RIGHTS
You confirm that You own or otherwise control all of the rights to the Photos and that use of the Photos by Schmap will not infringe or violate the rights of any third parties.6. NO OBLIGATION
Schmap shall have no obligation whatsoever to reproduce, distribute, broadcast, or otherwise make use of the Photos licensed by You to Schmap hereunder.7. NO AFFILIATION
While the Flickr website and/or Flickr API have been used to short-list your Photos, Schmap claims no affiliation or partnership with Flickr.8. MISCELLANEOUS
If any provision of the Terms is ruled unenforceable, such provision shall be enforced to the extent permissible, and the remainder of the Terms shall remain in effect. The Terms constitute the entire agreement between the parties with respect to the Photos licensed hereunder. There are no understandings, agreements or representations with respect to the Photos not specified hereunder. If there is any dispute about or involving the Terms or the license granted hereunder, You agree that such dispute shall be governed by the laws of the State of California without regard to its conflict-of-law provisions. You agree to personal jurisdiction by and venue in the state and federal courts of the State of California, City of San Francisco. The license granted in the Terms may not be modified without the mutual written agreement of You and Schmap.
They explicitly reserve their fair use rights, which seems smart under the circumstances (since the copying they’ve done already might require such a privilege). They limit my grant of rights to the rights they know they’re going to use, and promise to attribute the photo to me, link to it on Flickr, and let viewers know that it’s a CC-NC licensed photo. I grant rights to public performance and “public digital performance” of the photos, which is harmless but sort of silly, since section 106 doesn’t grant those exclusive rights over photographs in the first place.
Somewhat worryingly, I have to confirm that their use of the photo won’t violate anyone else’s rights. Since the photo depicts a preexisting drawing, I’d normally have to decline. In this case, though, there’s no copyright notice on the drawing and it’s pretty obviously from an era when such notice was required, so it’s probably in the public domain. There’s an interesting issue regarding whether a diner menu is “published,” but we’ve already gone down the too-much-analysis rabbit hole.
So I agreed.
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Joe, that’s a whole lot of thinking for that type of thing. Maybe that’s why you’re the lawyer and I’m the stock broker.
Crazy legal-types.
Comment by Victor — 24 February 2006 @ 09:04
Schmap…
Launching on 22nd March 2006 Schmap is a easy to use piece of freeware packed with features and functions that bring city guides to life! With integrated maps, photos, reviews and online content Schmap gives you complete freedom to explore places of in…
Trackback by nechbi.com — 1 March 2006 @ 05:14
Ran across your comment while searching for more info on Schmap — I got a similar e-mail. I am wondering how their proposed use for my photos would indeed be a noncommercial use; I doubt they’re putting together these guides purely out of altruism.
Comment by Vidiot — 1 March 2006 @ 06:50
As somebody who reads/signs at least two contracts per month for freelance projects, I can completely identify with the urge to geek out over this contract. I recently had a debate over CC licensing with the publisher of my next book (Seal Press, a great bunch of folks), and they said (I’m paraphrasing), “Well we’d prefer not to use a CC license because our contract is already quite generous in its terms.” After reading it over, I have to say that they’re right. Though I’d prefer a CC license, their contract only reserves rights in the complete work (it’s an anthology, so this matters), allowing each author to retain full rights to her essay on its own. So I can release my own essays from the book under a CC license if I want, but other contributors can pick their own licensing schemes too.
Comment by Annalee — 1 March 2006 @ 08:06
Do you consider ad-supported content “non-commercial”? I’d argue that if it were, Google would be the world’s largest humanitarian endeavor. Umm… no. Being vague on this point doesn’t make it so.
Also:
(e) Schmap shall indicate to the public that the Photos are licensable to others under the Creative Commons license that you have assigned to the Photos prior to Schmap’s initial short-listing of your Photos, and provide a link to this license, where reasonably practical.
The terms of use for their site says specifically that no one may reuse any content of the site. Not exactly friendly for someone making money off of CC-licensed work, and this would pretty clearly roadblock any existing CC licenses.
I’ve blogged about this here:
http://www.aquick.org/blog/2006/03/01/taking-advantage-of-the-commons/
Comment by Adam Fields — 1 March 2006 @ 08:30
Adam — I don’t think they’re claiming it’s non-commercial. If it were, they wouldn’t need permission. Also, vis-a-vis the Terms of Use, since they link back to the Flickr pages for each photo, anyone wanting to reuse the photo still has access to a contractually-unencumbered source (assuming that provision of the TOU trumps the CC license, which is doubtful under the circumstances).
I’ll write to them to see if they’ll insert a “except for CC content” clause in that provision of the TOU.
Comment by Joe Gratz — 1 March 2006 @ 09:10
Well, yes, they are claiming it’s non-commercial.
The phrasing you’ve linked to above says that pretty clearly - “While all our Schmap destination guides will be FREE to download, some photographers might nevertheless consider these to be commercial (advertising revenue will support free distribution to our readers)”. It’s not “some”. It’s “all”. This is a commercial use. There’s no discussion, there’s no grey area. If you want to allow that, fine. But let’s not mince terms here.
Also, see if they’ll release their own content under a CC license, even a non-commercial one. It’s pretty selfish to make use of CC-licensed work to make money (and enticing people who have specifically chosen non-commercial licenses to “donate” their work for free to a commercial venture), while retaining full copyright for their own content.
Comment by Adam Fields — 1 March 2006 @ 09:33
Adam –
I misunderstood your point. I was making a legal observation — that asking for permission in this context shows that they think it’s a commercial use. You were making a rhetorical observation — that it’s misleading of them to say that “some photographers might nevertheless consider” the use commercial even though, in your opinion (and in mine), it’s slam-dunk commercial use. I don’t think they’re “mincing terms,” acting in bad faith, or taking advantage of anyone. They’re just asking for permission.
As for your second point, I agree that it would be swell of them to release CC-licensed content. But keep in mind that, in this context, the CC license is irrelevant. They could have (and may have) asked for permission to use “all rights reserved” Flickr photos in the same manner, and nothing would be substantially different about the nature of the transaction or the scope of their permissible uses. Do you think they have more of a moral obligation to freely license their content when they receive permission to use a CC-NC licensed photo, as opposed to an all-rights-reserved photo?
I see the marks of good faith in their promises to link back to Flickr and to make clear that the photos are CC-NC licensed. I strongly suspect that the number of users who granted permission would be about the same whether or not they included those provisions, and their decision to do so bespeaks an uncommonly good understanding of the right way to undertake a project like this.
Comment by Joe Gratz — 1 March 2006 @ 09:47
I don’t think they’re “mincing terms,” acting in bad faith, or taking advantage of anyone. They’re just asking for permission.
I don’t agree with you. It doesn’t sound like they’ve done anything illegal, and I’m certainly not alleging that they have, but I do think the way it’s phrased is misleading about the fact that it’s a commercial service. The fact that people on the Flickr Central thread discussing this are confused about whether it is or not is certainly proof of that:
http://www.flickr.com/groups/central/discuss/72057594072528281/
Moreover, people using CC-NC licenses (myself included) have made a deliberate choice to release their media that way, because they want to encourage community not-for-profit reuse, not because they want to allow other people to make money off of their work. I consider it an imposition on the license that they’re even asking me to use my work for free. If I’d wanted them to be able to do that, I would have chosen a commercial license, and then they could just go ahead and do it. But I didn’t.
Do you think they have more of a moral obligation to freely license their content when they receive permission to use a CC-NC licensed photo, as opposed to an all-rights-reserved photo?
Yes, I do.
Comment by Adam Fields — 1 March 2006 @ 10:57
OK, I think we’ve found our points of disagreement.
I don’t think it’s ever wrong to ask for permission to use a photo, regardless of its license, so long as the intended use is adequately described.
Also, I don’t think users of CC-NC content have a moral obligation to relicense their derivative works under CC licenses, since, among other things, the creator of the original work didn’t choose to require such action (by choosing a ShareAlike license).
Creative Commons licenses are blanket permissions for certain types of use. For types of use not covered by those blanket permissions, each user has to ask nicely. I don’t think CC-NC licenses carry the negative implication that the user never wants to be asked whether the work can be used for a commercial purpose; indeed, many CC-NC license users allow free noncommercial use and charge for commercial use. That some creators are willing to license specific commercial uses for free doesn’t change the equation.
Comment by Joe Gratz — 1 March 2006 @ 11:46
It seems to me that a CC-NC license is a blanket rejection of free commercial use, by virtue of the existence of the CC licenses that do permit free commerical use. Nobody’s talking about paid commercial uses here - that’s a totally different situation.
On the subject of consequent licenses, you’re right. I personally use a BY-NC-ND license, and I was extending that to NC licenses in general. In the case of SA or ND restrictions, it’s not a moral obligation, it’s an actual one dictated by the license. But I was referring more to the content of the site that’s not from other sources, which is not released under any kind of CC license, even a restrictive one. To take content that’s licensed under CC terms, make money off it, and yet not license your own content that way is, I think, contrary to the spirit of CC licenses. It’s certainly not required, but as I said - it’s simply not friendly. CC licenses, even restrictive ones, are about granting license to others to reuse, remix, and share content you create in various ways. Granted, there’s nothing in the licenses that says that if you make use of some CC-licensed content that you’re under any obligation to use them yourself. But I do personally think that yes, there is something of a moral obligation. You’re buying into an alternate, more free idea of copyright restrictions, and if you don’t yourself allow others to avail themselves of the freedom you have enjoyed, you’re taking from the remix culture and not giving anything back.
Comment by Adam Fields — 1 March 2006 @ 12:16
Heh, glad to know that, when I started uploading all my old vacation photos to Wikipedia, I wasn’t totally daft to pick Creative Commons Attribution-NonCommercial license –after all, Joe’s using it. I’m just this-side of GFDL.
Comment by Bobak — 1 March 2006 @ 20:34
[…] Their website said, “The creative commons license that you’ve assigned your photo(s) provides for non-commerical use. While all of our Schmap destination guides will be FREE to download, some photographers might nevertheless consider these to be commercial (advertising revenue will support free distribution to our readers).” And then some Terms of Submission followed. […]
Pingback by Jason Pearce | relatively irrelevant » Blog Archive » Creative Commons NonCommercial — 1 March 2006 @ 20:37
It seems to me that a CC-NC license is a blanket rejection of free commercial use, by virtue of the existence of the CC licenses that do permit free commerical use. Nobody’s talking about paid commercial uses here - that’s a totally different situation.
I wouldn’t say blanket rejection. In my case, I’m open to free (as in beer) commercial use of my work. I’d prefer paid commercial work more, but right now, I’m not a default ‘no.’ What I want to try and do by using the NC license is have a say in where my work gets used commercially. In that sense, I’d say with Schmap contacting me, they did exactly what I’d hope a commercial entity would do. Ask.
That said, I also find the terms Schmap’s presented a bit fudgey. I’d be more likely to say yes if there terms were upfront and didn’t dodge the advertising aspect of their product.
Comment by Nathan — 4 March 2006 @ 11:34
Joe and others who have commented, this is super interesting. In my view Schmap appears to be trying to do the right thing by contacting the authors, and the wording of their request is carefully geared towards getting people to (hopefuly) say yes (should we expect any less from a business that wants permission?). Let’s not overlook something that significant about this whole experience: with the CC license in place on your flickr photos, Schmap could find you with relative ease, and engage in the discussion over the request for a license. I’d venture a guess that such discussions rarely took place regarding digital content in a pre-CC world. V. cool.
Comment by Colette — 6 March 2006 @ 17:28
I got an e-mail from Schmaps as well.
I don’t see that choosing a CC-NC licene means asking me permission for a commercial use is bad. I am open to getting paid as well as allowing non-commercial use and derivation.
I am tendong toward saying yes to Scjmaps because I see no harm. I actually found this site as part of my search to see if this is a scam that I am too naive to recognize as such….
Comment by corydalus — 29 March 2006 @ 19:40
I first considered their conditions as acceptable. OK, they want to make money with my images, and don’t want to pay me, but at least I might get a few more views via their software.
But before going to grant them the license, I wanted to check out their software. So I downloaded it, and was going to install it. However, I stopped after reading the following items in their software license agreement:
“”"
7. ADVERTISEMENTS AND PROMOTIONS
[…| The frequency, location, timing and extent of the Promotions shall be subject to change and shall be determined solely by Schmap in its discretion. You agree that Schmap has the right to update and/or revise the Software and/or Content at any time in connection with the Promotions. […]
8. MAINTENANCE AND UPDATES
You acknowledge and agree that Schmap may update and/or revise the Software and/or the Content at any time that Your computer is linked to the Internet, but is under no obligation to inform You of or furnish to You any such updates and/or revisions. You further acknowledge and agree that Schmap may require You to update certain data pertaining to the Software and/or the Content as a condition to Your continued usage of the Software and/or Content (including without limitation updates and/or revisions required by Schmap’s licensors). This Agreement does not grant You any right, license or interest in or to any support, maintenance, improvements, modifications, enhancements, revisions or updates to the Software or Content. To the extent that Schmap supplies any updates and/or revisions to You, such updates and/or revisions shall be subject to the terms of this Agreement unless Schmap indicates otherwise. Schmap reserves the right to charge fees for any future versions of the Software or Content or any additional modules for the Software or Content.
“”"
So they could change their software and guides at any time, without even telling me? For example, they could increase the number of ads drastically, or introduce aggressive advertising behaviours (pop-ups…). No way.
So I won’t license them my photos.
Comment by oefe — 2 April 2006 @ 05:47
Forget about the copyright stuff - its just a great way to publicize the product as they get an army of fans for free.
Comment by Jason — 4 April 2006 @ 13:18
Schmap and spyware…
briefly, more discussion on the Schmap phenomenon at this Flickr page(tipped to this discussion via someone landing on my page with the search words Schmap Spyware)….
Trackback by B12 Partners Solipsism — 19 May 2006 @ 17:44