SpaceX this week quietly—and retroactively—imposed additional restrictions to images the company uploads to its Flickr account. And while the company wouldn’t explain why the changes were made, copyright experts say the move opens the door to confusion when it comes to determining what is or isn’t acceptable use of the company’s images. As SpaceX began supplanting NASA in humanity’s quest to explore outer space, Motherboard pondered in 2015 what would happen to the public’s unfettered access to space imagery data (images taken by NASA are in the public domain and can be used by anyone for almost any purpose.) Thankfully, SpaceX soon after made the important decision to offer mission images under a Creative Commons Zero (CC0) License, allowing them to be freely shared and even remixed by anyone. This is the least-restrictive Creative Commons license in existence and allows anyone to use the photos for almost anything (you could, for example, make and sell a photo book or calendar of SpaceX images if you wanted to.) But a little noticed change to the SpaceX Flickr account this week stripped away the CC0 license affixed to the company’s images, replacing it with an “Attribution-NonCommercial 2.0 Generic” license. That, in turn, imposed notable and potentially confusing restrictions on how those images can be shared and re-used.
A SpaceX representative told Motherboard that news organizations are still free to share the company’s images under the new licensing change, but the company wouldn’t elaborate when asked why it felt the changes were necessary in the first place. Copyright experts told Motherboard that the change opens the door to additional confusion when it comes to what is, or isn’t, allowable.
“The biggest restriction is the limitation on commercial use,” said John Bergmayer, an intellectual property expert at consumer group Public Knowledge. “That is quite a vague term that often leads to confusion, and while Creative Commons itself tries to clear up what it means, people who issue works under such a license may have a different idea.”
He noted that while a lot of people might tend to think of “commercial use” as something only done by a for profit company, copyright doesn’t work that way. In the often confusing realm of copyright, it’s the actual use—not the person using it—that matters. For example, a nonprofit using an image to fundraise might be considered commercial use, while a for-profit news organization using a photo as part of its news coverage might not be. Creative Commons defines commercial use as “primarily intended for or directed toward commercial advantage or monetary compensation.” The word “primarily” still causes ample confusion.
Bergmayer also noted that while anyone that had previously used SpaceX images under CC0 should still be free to do so, that could also cause practical problems down the line. “If I get an image from you and you have it under CC0, presumably it is under CC0 for me, too. Then what happens if SpaceX objects to a use that is prohibited under their current license, but not CC0?” he asked. “It’s a strange evidentiary problem, basically.”
Mike Masnick, a copyright expert and founder of the Techdirt technology blog, called Space X’s decision “frustrating.”
“A big part of the issue is that NASA's images are, by default, public domain, so it was nice to see SpaceX matching that and releasing its images into the public domain as a sort of parity,” he said of the company’s original 2015 decision.
As for whether or not images are shareable by commercial news organizations, Masnick said the answer is probably, but the potential for abuse is still there, and SpaceX would have avoided any such confusion by keeping its images licensed under CC0. He noted that Creative Commons has tried to clarify that its non-commercial licenses were not meant to prohibit for for-profit news organizations, but to limit anybody seeking to directly exploit the work for commercial use, such as selling stock photography—or offering SpaceX images in a database for commercial sale.
“But, there's no direct court ruling on that point, so this creates uncertainty, in that it's possible if Elon Musk got pissed off at a news organization—as he's been known to do—he might seek to enforce the more restrictive license,” Masnick said. “Whether or not that would work as a matter of law is perhaps debatable—but it could at least function as a chilling intimidation technique.”