As can be seen from the discussion here, this is a complicated issue (or set of issues), and it is great that the administrators of EpicSki have created an atmosphere where such a constructive discussion can take place. I also don't claim to be an expert - I have simply tried to learn what is necessary for me to be able to come up with a copyright policy for my photos that I feel comfortable with. This has been a very difficult thing to do. When I first came across the Creative Commons licenses, I thought, "this is exactly what I have been looking for," so I incorporated a specific CC license into my site's copyright policy. I was, however, troubled by a few of the provisions, and the language of the license is very "lawyer" and not always easy to understand.
I verified with CC (e-mail exchange) the rights they were granting me for the use of their licensing material (even they took a while to ponder some of my questions). The only restriction on the use of their material is "attribution" (their pages are covered by the "by" license). This means that anyone is free to, commercially and non-commercially, use, distribute, and modify their material, as long as the original source (CC) is identified. So, a while back I worked on modifying the license to reflect what I wanted - but I neglected to get the modified files onto my server. As I mentioned before, Tom was doing what he correctly believed he was allowed to do based on what he read, and I have apologized to him for any problems I might have caused for him.
An upside to this whole episode is that it has helped me see more clearly the remaining problems I have with the CC license (and my previous modificatons). I think the CC licensing scheme is a great idea and service, but there are two main problems from my point of view.
One is that the CC licenses don't deal with the hotlinking bandwidth issue that comes along with "distribution". If I decide to allow people to distribute my photos on the internet, I should be able to specify that they
pay for the distribution costs, not me. If they hotlink to a photo on my site, then I am largely paying for their distribution of my photo (photos are typically much larger, byte-wise, than accompanying text). Here are links for three pages which discuss hotlinking (aka "direct linking") from the perspective of web site owners:http://www.webmasterknowhow.com/hotlinking.htmlhttp://autumnweb.com/Roxys/directlinking.htmlhttp://www.xentrik.net/htaccess/hotlinking.php
The second is that I see a need for a distinction between private and public uses of my photos. I want people to be free to use my photos for private, personal, non-commercial purposes (saving to their hard drive to look at later, wallpaper for their computer monitor, printing out the photo to tape above their computer, etc). They are going to do this even if I say they can't, there is nothing I can do about it anyway, and it is not likely to affect my ability to make money from my photos or web site, should I want to do that in the future. But if a person wants to use my photo in a public way, even if it is non-commercial, I want to be the judge of whether it is an acceptable use - and I have that right, since I created the work.
|EpicSki absolutely is a non-commercial site, regardless of how you might categorize it, and a poster used the image for his personal use. Which happened to be to share it with other members of this non-profit, non-commercial skiing community.
I'm not sure I agree with the statement is that Tom "used the image for his personal use". The way I see it, Tom used the image "publicly" - he inserted it into a web page accessible to hundreds of millions of people, most of whom he doesn't know (please keep in mind that I know that Tom was following the rules he saw - this is not a re-criticism of Tom!). This is an example of why I think that the original CC licenses have some shortcomings.
Regarding the "commercial" question: EpicSki has affiliate arrangements with several online retailers, so that, "when you purchase from one of these affiliates (after accessing their site from EpicSki), EpicSki earns a referral fee which helps to cover its hosting and development fees." Unless EpicSki is a registered non-profit organization (I have not seen that stated), then it would appear to be a business (and may even be operating under a business license - perhaps an administrator can set us straight on this question). The site provides services to its users and produces income for its owners. The great internet boom-then-bust illustrated that a venture does not have to make a profit to be commercial.
From what I have learned, "deep linking" is a rather different issue than "hotlinking". Here is a definition I found here
(note that this is a deep link!):
|Definition: linking to a web page other than a site's home page.
Virtually every link you see and may click in a Google search results page is a deep link, in that it takes you to a specific page "deep" within a web site, and not to the web site's home page. Some sites (especially those for large businesses) seem to want visitors to only enter by the "front door" (home page). From what I have read, recent rulings have said that there is nothing illegal about deep linking. Deep linking simply leads the surfer directly to the page containing the desired information, and does not result in parts of the page being viewed out of the intended context. Hot linking to photos, on the other hand, results in those photos being displayed completely out of their intended context.
It would be great if some established photographers with internet experience would add their comments on these issues!