How to earn $$$ with Wikipedia & CC-BY

This is not a blog post about science, at least not directly. It is a blog post about blogging and how certain questionable characters try to trap bloggers in order to “immorally” make money with Wikipedia pictures.

In my 3-year-old book review about Chernobyl, I embedded for illustration a photograph of the Reactor Block Nr 4, for which the picture’s owner Arne Müseler (or Mueseler) now demanded via his lawyer that I pay him almost €6000. TL:DR: I didn’t.

A picture which was licenced with creative commons, specifically, CC-BY-SA 3.0, by which Müseler himself invites everyone to use this photograph freely without any payment, but with a (metaphorically) small-print demand for an unusually complex acknowledgement. Since I merely embedded the image’s hyperlink, I just credited Wikipedia.

But I got a good lawyer who explained to Müseler that his demands to be paid almost €6k for a Wikipedia-hosted image licenced in CC-BY are “immoral” (“sittenwiidrig” in German legalese) and that I won’t pay him a cent. As I understood, eventually Müseler’s lawyer concurred. My lawyer expenses were just a fraction of what Müseler demanded, but still quite hefty, lawyers aren’t cheap. Nobody won here, only lawyers, both Müseler and I lost money.

But then again, how many other bloggers who used this Wikipedia picture of the Chernobyl reactor naively and without the deeper knowledge of copyright law, got intimidated by the threat of a costly court trial, and simply paid to Müseler the thousands of euros, like his lawyer wanted from me? And how ethical is such business model of posting CC-BY pictures on Wikipedia of all places, only to demand huge money for what is legally free by definition?

Now the details. The picture I used was very similar to this one:

The Müseler picture of Reactor Nr 4 was taken in 2013 and looks very similar, same angle, basically just the clouds are different. It is presently part of the German-language Wikipedia article about the Chernobyl disaster.

Now, until May 2016, a different picture was used in that place, the one I show above. It has a very relaxed CC-BY 2.0 licence, bluntly put: nobody would care which way you used it. Yet on 3 May 2016, a Wikipedia user named SKDMac (who must have acted with Müseler’s approval, right?) decided to replace that perfectly free 2006 picture in the Chernobyl article with Müseler’s 2013 picture. The reason of this exchange is not immediately clear, because the photos are extremely similar, and the old photo is still available on Wikipedia. But the 2013 Müseler photo has what the 2006 photo doesn’t have: a licensing catch. The catch goes like this:

I did not see this catch when I embedded the image and credited Wikipedia. Legally, Müseler could have asked me to instead credit his name (and I would have gladly obliged), but by law he could never demand a financial compensation for the CC-BY image use. Financially, it would be not worth it to get lawyers involved.

Still, Müseler recruited Marcin Zelinski, a Berlin-based media lawyer, who on 16 September 2022 sent me by email a cease-and-desist letter coupled with a demand for financial compensation.

I’m not sure Zelinski is a good lawyer, because he got many very important things badly wrong. First of all, he never mentioned that the image was already in the public domain, in fact even on Wikipedia under a CC-BY licence. Not even indirectly. Then, the lawyer accused me of having stored and distributed the image, but in reality I merely embedded it, i.e. linked to it. Which under EU law is in most cases even legal for properly copyrighted images, never mind creative commons.

But Müseler’s lawyer never seemed to bother about facts and reality. His goal was not fixing the attribution, there isn’t really any money in that. He went straight to demanding financial compensation, €5839.48 specifically.

I can merely speculate why Müseler and his lawyer arrived only now. My book review article is 3 years old, published in October 2019 (which didn’t prevent the lawyer Zelinskii from requesting copyright infringement payment from 23.05.2014 on). Maybe the sudden attention has to do with the russian war on Ukraine, where in early 2022 the rascist invaders occupied the Chernobyl power plant and tried to cause another nuclear disaster there by destroying power supply lines to the fuel rod cooling facilities. Luckily the Ukrainians restored power and saved Europe, and have been doing the same at the still occupied Zaporizhzhya nuclear power plant repeatedly and under enemy artillery fire ever since. Thus, for the first half of 2022, Chernobyl was once again back in the global main news and everyone talked about the imminent danger of it exploding once again. Müseler’s CC-BY picture of the reactor Nr 4 on Wikipedia must have looked to bloggers and journalists as perfectly safe to use as illustration. But it was not safe to use.

When the russian occupiers used Chernobyl to threaten Ukraine and the world, someone must have started searching the internet for Chernobyl reporting to catch the perceived copyright infringers. I won’t comment on the ethics of this.

In fact, I don’t know anything about any other possible recipients of Müseler’s claims, whether there were any others or not. In my own case, I got a good lawyer. My lawyer advised me to remove Müseler’s image (which I did) and then informed his lawyer (translated):

• “Our client has discovered your client’s photo on the website at URL wikipedia.org and embedded in his website via a link. The image was only stored on the website under the URL wikipedia.org. Another storage in the access sphere of our client did not take place. Since our client currently does not have a copy of the photo on his website stored, a copyright-relevant reproduction is ruled out (BGH, judgment of July 9, 2015 – I ZR 46/12, GRUR 2016, 171 para. 33, beck-online). […]
• Furthermore, your client has not suffered any damage. He released his photo for use under a CC License. Even if there was an infringement of the law in the present case, the amount of damage would be zero (OLG Cologne, decision of June 29, 2016, Az. 6 W 72/16).
• Furthermore, we reserve the right to assert further claims from immoral intentional damage acc. § 826 BGB to assert against your client. We consider it immoral that your client publishes his photo under a CC license and at the same time admonishes the users of his photo with demands of excessive payments. For this reason, our client will report your client’s actions to Wikipedia. Furthermore, our client reserves the right to report publicly on your client’s actions.“

I did no sue Müseler, even thought he does owe me a lot of money I did lose because of his “immoral” claims. But I do report about his behaviour here and will inform Wikipedia. I haven’t heard from him or his expert lawyer Zelinski ever since. For all I know, maybe they are busy writing €6k-heavy cease-and-desist letters to other bloggers, pretending there never was any Wikipedia or creative commons licences or laws on embedding.

If you are also a blogger: be careful with every image you use, even those with a CC-BY licence. The right may be on your side, but to get your rights against “immoral” claims needs a good lawyer and is expensive.

But also: now you know how one can make lots of money with Wikipedia. Just replace the pictures published there with yours, add a complex licencing catch, and your “immoral” trap is set.

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