A screenshot of a Creative Commons 2.0 License allowing commercial usage with attribution.

Yesterday, your author revealed that GitHub objected to a forthcoming article about controversial passages added by staffer Amy Palamountain in the new TODO Group Open Code of Conduct.

GitHub ‘legal’ told me that usage of photos of their staff from their website would be an unlawful breach of Copyright. I considered their complaints respectfully and determined that could be a problem. UK Copyright law now has very similar exceptions to US Fair Use. It is called ‘Fair Dealing’ – but there is no exception to use photographs for news reporting.

What to do?

• Use the photos anyway? X Too risky, could be validly sued
• Photoshop a black armband onto Amy Palamountain and call it a parody? X Clumsy
• If only, … somehow, I could get them to give me a valid, irrevocable legal license? ✅ YES!

These companies like to promote themselves and it is often possible to find pictures of staff on news sites like AP Images where they can be bought legally. In addition these ‘open source’ guys and gals, are all about their social media. They keep their names the same across all sites … like ooh, say, Flickr.

The thing about Flickr? Flickr encourages users to formally state the licenses covering their photos. Users can choose all rights reserved, or they can choose to … release their photos under the irrevocable Creative Commons License.

Whilst some of the GitHub team on Flickr like to keep their profiles private others do not. As for the ones who keep their privacy up – they have employers and colleagues! Who take pictures of them! Who release said pictures under creative commons licensing terms for commercial use! Did I mention it was irrevocable?

Furthermore there is no reasonable expectation of privacy, in any jurisdiction, in a photo you have formally and intentionally released under an easy-read license for free, for-profit usage.

I have harvested many suitable photos. I have commercial use photos for 3 staff and non-commercial use photos for a 4th. This site is presently non-commercial within the clear definition in the CC-BY 2.0 license, but those last photos may need to be removed if I ever monetise by putting up advertisement banners. Your author will tag them appropriately. In each case I archived the original page to prove the licensing terms granted for the photos.

That entirely eliminates the Copyright based threat. I will send details of the licenses to GitHub’s ‘lawyer’ before publication. This prevents them filing a DMCA notice because knowingly misrepresenting Copyright status in a DMCA notice is grounds for a lawsuit in the US.

I will give GitHub until Monday anyway and drop them the final text and photos (with licenses) to give them an opportunity to comment and to comply with UK defamation law. They can also ask for more time. Absent proper conduct of the litigation under UK pre-action rules, any attempted lawsuit will simply be an opportunity for them to write your author a cheque.

Thank you GitHub for your commitment to open-source licensing!