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Cory Doctorow: Embedded videos are exempt from the Creative Commons License

I donīt want to be mean and have no personal problems with Cory Doctorow or the BoingBoing staff but there is an incident that I want to bring to a broader discussion as I see this as a huge problem for Creative Commons in the long run and seeing the ignorance from those that are front speaker for CC good with a large following I need to call them out on it.
There is this post on boingboing with a video from the great street artist MUTO who makes an awesome animated street art painting. In the beginning of that movie there is a nice handwritten plate - clearly readable and standing long enough to notice that says that the following video is made available under a creative commons attribute noncommercial share alike license. Now we all know that boingboing is an ad supported site that clearly makes money (hey its the number one or two independent blog on the net they have likely tens of thousands page impressions a day and that clearly generates money beyond the hosting costs (or they do something wrong)). So a light discussion came into gear in the first couple of comments prompting the following:

#5 POSTED BY SAISUMIMEN , MAY 15, 2008 3:29 PM
The video says that no "commercial websites" are allowed to post the video. Doesn't boingboing count as a "commercial website" since they have ads and sponsors?

(just wondering)

Interesting point right?

#7 POSTED BY POHJIE , MAY 15, 2008 7:10 PM
As far as I know, commercial sites are those that charge for access, not sites that use sponsors or gain revenue from ads. No money is being made from the sharing of this video, as clicking on an ad is not mandatory.

at that point I could not hold myself as the notion that a "not for pay" website equals a noncommercial website is so flawed and could not be standing on its own so I wrote a staunch honest unpolite reply (its how I am and I canīt help it):

#16 POSTED BY FALK , MAY 16, 2008 1:42 AM

BULLSHIT. Boingboing generates money through ads which comes from visitors to this site which come to see the content that is on boing boing - I really think the hypocrisy on this blog about bloaking how great creative commons is and then show full work of art (not a citation) is just mind-boggling. Boingboing is about as commercial as it gets for a blog and still there are so many cc violations. I wonder how Cory would feel if I post a copy "Little Brother" in full on a special blog that has adverts in between the text put a small link at the very end to corys blog... Or better yet I distribute a printed copy in an ad supported dead tree version of aforementioned blog with full little brother in it.

I really think the boingboing staff needs to get a grip on where they stand - either make money but then leave CC "non commercial" stuff out or kill the ads - you canīt have it both ways and remain credible...

Now the work of art is great (and a link to the artist website and a pic of the video would have done the artist more of a favor).

And then came the moment of revelation that I would not have expected from a man that I thought was highly intelligent above the fray and a fighter for the good:

#18 POSTED BY CORY DOCTOROW , MAY 16, 2008 8:21 AM
Falk, you need to look up the difference between embedding and copying. But of course, that would mean you'd have to discuss the facts, rather than grinding your personal vendetta axe.

Right so if I put up a CC licensed video on a video sharing site it looses all its rights? Well I let it speak with my own words:

#19 POSTED BY FALK , MAY 18, 2008 4:30 AM
Cory first of all - I have nothing against you or your site or whatever - I like it thats why I am coming here. Still I am a video artist and if I publish a piece under CC I do not want - even an embed - to be used to make other people rich.
I am sure you will explain to me the difference (its bits and bytes and doesnīt matter where they come from)... Its content from someone else inside your container - how about I embed the rss feed of boing boing into a an add supported "cool website" together with say some others make some editorial adjustments to it (say kill some less convincing stories) but otherwise do nothing else... I really do not see a problem with distributing content but when it says "not for commercial reuse" it means it and in add supported blog is commercial no way you turn it.

I am highly aware that this is one of the great controversies of CC and it has not been vetted in court but I see this as a problem - especially since you not even link to the guys webpage or make it a story in any way about him - you just plainly putting up his stuff on your website that generates money - embed or copy. He gains nothing. I would even say you didnīt attribute to him as your whole post does not mention his name once. Even so the begging of the movie asks very nicely about attribution and non commercialism.

I think its more an ethic thing then something that has to do with law. I am not against you embedding this piece per se but frame it accordingly make sure that the guy gets some attention that is more then this video (he has well deserved it) you know just things that you preach every day on this blog. This post is perceived by me (as a video artist sometimes publishing CC movies) as a rip-off - and perception sometimes forms opinions - yours may differ but I canīt see from your answer that it is well informed or thought about.

I was trying to stir up an informed debate and not a flame war and was actually wanting to get an opinion where your staff stands on this issue rather then getting a dog bark back personal offensive things. Maybe it was to harsh (and I know that I am too honest and forward speaking my mind without making it political correct) still some stand other then "its an embed stupid" (like I am commenting on creative commons and donīt know what an embed is or have not thought about embeds) would have been great and furthered the debate as I see this as an issue and its even more an issue with video then it is with text imnsho. there is a lot more too it but I am sure this comment is lost in time anyway - if you want to further a debate about it I invite you to do so - you say how and where ;)

I deeply believe this needs a debate rather sooner then later - I am reconsidering the use of CC (and I have been a supported since year one) because I do not want other people make money of my stuff and I know for fact other artists think the same (not even to mention that exactly this topic comes up when I speak to artists about how they should use CC in the first place - like "but people are just going to copy my stuff on their blogs and I donīt even get clicks or anything out of it - and they might even make money with their ads from my content" - I am not making this up I can name you three artists around here that have exactly responded the same and I couldnīt even defuse them as I am unsure where this leads as well)

I am not expecting a reply back as the comment is probably lost in time yet still interesting there are others who share my view further down:

#21 POSTED BY JFLEX , MAY 18, 2008 6:10 AM
I find Falk's contention interesting. I'm not sure if Cory's response is accurate. Speaking directly to the restrictions:

"You are free to copy, display, distribute this work for non-commercial purposes only."

puts BoingBoing in violation. The ads on this site are paid on a CPM (cost per thousand impressions) basis. These impressions are contracted on a total-buy basis, meaning that an advertiser books a set number of impressions. Therefore, anyone viewing this page uses contracted impressions, fulfilling the advertiser's contract with BoingBoing, and getting BoingBoing (or, to be precise, Federated Media) one step closer to being able to invoice the advertiser.

In that sense, this is absolutely a commercial website and puts this video in violation of the expressed terms.

Now let's take the second clause:

No commercial websites or televisions are allowed to display this film without the author's permission.

We don't know enough information to address this. The author's authorization almost certainly trumps the first clause of the license. Therefore, if the author gave expressed permission to use this film on this site, BoingBoing has done nothing wrong.

Perhaps Cory can tell us if they contacted the author.

Perhaps... (I would bet that he didnīt but I like to be proofed wrong - its also not the general theme of the debate and also that would have prompted a "posted with the permission of the author" type of line in the blog post).

Quite generally this topic needs a discussion - what is a commercial website - were does it start? Does CC only apply if you are an "old economy" media institution but if you are a cool hip website generating money CC does not apply? Are all ad supported website commercial (I do not think so generally - especially when they are run by a nonprofit org who needs to pay their hosting bills). How can this issue be raised out in the open? Are subtle violations like this going to spell the end of CC because CC artists are unlikely to go after those sites for litigation. Its a big issue that needs discussing. BTW its one of the main reasons I keep ads of this site - because I do not want to violate CC and would like to post CC noncommercial content from time to time.

UPDATEAs fellow prototype mogreens points out a similar discussion almost came off on the big germany class A "Spreeblick" as they posted the same video - and guess what I consider Spreeblick as commercial as boingboing (its a company - they are paying people to post they have ads the generate money - its a commercial site - its like SPON (spiegel online) or similar would post the video and then I know these sites are out front in calling them for it and demanding all sorts of things (pull down, litigation with EFF etc etc). THIS NEEDS DISCUSSION GUYS - ITS NOT OK!

UPDATE 2 Thanks Cory for taking the time to post here in these comments. The discussion goes on :) For the rest of you coming here: Do you think embeds are just links or actually the content itself (that is ethically and in law)?


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Which bit of embedding a video do you think is subject to copyright law? Embedding a video is *making a link*. The embedder makes no copy. Does not exhibit. Does not perform. Does not make a derived work. Those are the rights afforded under copyright.

The user's browser interprets (or doesn't) the embed link to decide what to do with it. Any copying that takes place takes place on the user's side, not the linker's place. If there's an infringement (there isn't -- the server's response to the embed code is implied authorization for the user's browser to make the ephemeral copy en passant -- it had better be, or every click on YouTube is a potential source of a $150,000 fine to the user), it's the browser that commits it.

You're arguing here that linking to a video -- or any other asset -- is the same thing as copying it and therefore subject to Creative Commons (or any other) licensing. It's not. As a matter of law, referencing a URL is not making a copy. There is no license that applies to it, because it's not a licenseable activity.

Of *course* CC licenses don't apply to embedding video. They also don't apply to looking at storefronts, thinking about novels, or riding in taxis. CC licenses govern *copyright*. There's no copyright infringement in making links.

Oh, and for the record, no one is paid to post on Boing Boing.

Thanks for taking your time to post on this measly blog - I am honored ;)

I understand that thinking - its an interesting angle you provide there - but I donīt buy it and it sounds a bit sleazy and lawyer like for an ethical topic. (not personal really I want just a discussion its just my personal impression).

For one an "embed" code can be "generated" for every video on the web - its not a link its content because every video that you see on the web has an embed code to it otherwise you would not be able to see it (i know you know). I donīt buy the notion that where the video actually resides is an issue on where the copyrightholder can put their claims to. If I would - for example - put a video on here - even with the embed code open and not just in the (also open) source code - I still would not want a commercial site to post it - now I have to sue myself?

What you provide is a frame - like a TV station - to send content through and are generating money with page impressions - which come from the content which doesnīt come from you. As to speak with the TV metapher - its like a TV station doing a live broadcast of a concert - now they only provide the link (and hey its actually called uplink in TV mumbojumbo) to the actual content - yet they still have to pay tonsshit of money for the rights to do that - with your reasoning this would not be the case. I am sure you have lawyers and have asked them and that is actual the legal implication of this case - BUT - I really think its wrong and it would instantly make me not use CC anymore or think about posting my content to the web twice - because in the end - and I think you can agree with that - I am generating content for other people to make money with. One of the reasons for CC to exist was to give the consumer - the fan - the guy on the recieving end a way out of lawlessness while giving the rightsholder - the guy who makes it - enough protection against others making money with your content. Your statement makes it look like CC is not working?!

As for boingboing being not commercial - that is another matter and should be stated somewhere obvious - because then this whole discussion in correlation to boingboing is nil (so what are you doing with all that money from all those ads? Just paying bandwidth? - ugh... ) but there are other sites that are clearly commercial (here in germany the spreeblick is one) that have posted the video too and its the bigger issue thats of a problem.

PS: Embeds are the only reasonable way of sharing video on the web - with your reasoning there is no way to share video on the web without making it public domain...

PS2: "You are free to copy, display, distribute this work for non-commercial purposes only." What about it? you are displaying the work on your site... no?

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