Stock.xchng legal analysis
Assuming that people uploading pictures on Stock.xchng are the actual copyright holders, the first thing to do is to scrutinize the agreement between them and Stock.xchng and seek which, if any, rights are transferred from the author to Stock.xchng.
When prepared to upload a picture on Stock.xchng, you are urged to read the upload rules and the license agreement. The upload rules are not related to the copyright issue but only determine the kind of pictures Stock.xchng is willing to accept on its site. So let's see what is in the licence agreement : again not much in relation to the legal copyright issue, in fact just a link to terms of use that, as a copyright holder and future uploader, you are invited to accept.
So here we are, what have I to accept as a copyright holder according to the terms of use?
- You are automatically assumed to grant license for the use of said images to any and all visitors to this website with the restrictions you specify at each photo. In the upload frame below, the uploader can choose the usage rights to be either no restriction, contact me, contact and credit me or written permission needed.
- All images uploaded must be original material created by you.
- You may not now, or at any time in the future, demand money or income from Stock.XCHNG or its owners or proprietors or those using images found on this site for the use of said images.
Obviously, only 1. is of interest to us, because it provides the way visitors can use the pictures with the specified permission of the author and teach us that the copyright of the author has not been tranferred to Stock.xchng for itself or on behalf of the photographer.
Hence, we have to consider, knowing the structure of Stock.XCHNG site, that the only copyright information we have to know is either at the bottom of the picture or - when the photographer wants to be more specific about the licende under which he relases his material - on his Stock.XCHNG's user page. So that when the picture mention no usage restriction and the user states like "hi folks, enjoy", in this case, free means free. If the picture states no usage restriction and the user page says "please no commercial use", this not free and we don't use it. And when the picture mention no usage restriction and the user page states the picture is released under GDFL or CC, we can use it with the appropriate GFDL ou CC tags. Of course if, instead of no usage restriction, the picture states contact me: you have first to contact.
And so on, and so forth : we were seeking for the legal relationship between Stock.XCHNG and the copyright holder and all we've found is the way the copyright holder decides to release his material to us, visitors.
Downloading Stock.XCHNG material
Rationally, all we should know about downloading and use Stock.XCHNG pictures is above since, as we noticed, copyright holders do not delegate any rights to Stock.XCHNG itself.
Yet, Stock.XCHNG decided most strangely to put some more rules on downloaders (again in terms of use):
- You may use any of the photos in our system free of charge for any commercial or personal design work if you obey the specified restrictions concerning each photo you download. Fair enough and consistent with what we've seen.
- Selling and redistribution of these photos (individually, or as a whole) without written permission is prohibited. Using the photos in website templates, on postcards, mugs etc. doesn't count as selling or redistribution, however you are not allowed to build a gallery using the photos you downloaded from here. Here Stock.XCHNG crosses the red line:
- decision on selling and redistributing belongs to the copyright holder, Stock.XCHNG never requested the uploaders to manage their rights on their behalf. So that this provision appears to be void.
- As to the prohibition of building a gallery, this is not related to a copyright problem. It is very understandable that Stock.XCHNG does not want to find everywhere exact mirror sites of its own site, and in this sense only, the prohibition appears to be legitimate. This is related to fair trade laws, not copyright laws. But this prohibition could not imply that pictures dowloaded on Stock.XCHNG and put on a web site with plenty of other images from varied sources cannot use <gallery> feature. Only a copyright holder could say so and, again, Stock.XCHNG is not.
At the end of the terms of use, the disclaimer admits flatly that Stock.XCHNG has no copyright on the material: The owners of Stock.XCHNG cannot be held responsible for any copyright violations, and cannot guarantee the legality of the photos stored in its system. You have to contact the authors to make sure. You use the site and the photos at your own risk!
Conclusion
It therefore seems possible to recommend that:
- Commons can host pictures from Stock.XCHNG in sensible way, i.e. just checking the usage restriction at the bottom of the pictures and double-checking in visiting the user page. Stock.XCHNG being not a copyright holder is not in situation of prohibiting the use of galleries on Commons as long as Commons is not becoming a Stock.XCHNG illegal mirror site, which is not the case, and by large.
- To stay cautious though, it would be better never to use a [[:Category:Stock.XCHNG]] nor to make a Stock.XCHNG page containing only Stock.XCHNG stuff, because in those cases we will be too close from the kind of gallery Stock.XCHNG legitimately prohibits.
- In case this vote is positive, I finally recommend we delete or modify the current {{Stock.xchng}} as well as the current [[:Category:Stock.xchng photographs]]