This morning, I received this message in my Flickr inbox:

Hi holotone,

I am writing to let you know that one of your photos with a creative commons license has been short-listed for inclusion in our Schmap Boise Guide, to be published at the end of this month.

www.schmap.com/shortlist/p=***OBSFUCATED***

Clicking this link will take you to a page where you can:
i) See which of your photos has been short-listed.
ii) Submit or withdraw your photo from our final selection phase.
iii) Learn how we credit photos in our Schmap Guides.
iv) Download one of our recently released Schmap Guides.

Our submission deadline is Sunday, September 10. If you happen to be reading this message after this date, please still click on the link above (our Schmap destination guides are updated frequently - photos submitted after this deadline will be considered for later releases).

Best regards,

Ali Moss,
Managing Editor, Schmap Guides

Upon click-through, you are presented with a webpage that includes a condensed version of the text above, the picture in question, and this little tidbit:

The creative commons license that you’ve assigned your photo(s) provides for non-commercial use. While all our Schmap destination guides are FREE to download, some photographers consider the usage to be commercial (we intend to include advertisements and/or affiliate links in our guides), and so…

Now myself, I consider monetizing through advertisments a commercial endeavour, but apparently Schmaps considers me in the minority.

The TOS itself doesn’t seem too bad, and even includes provisions that guarantee in writing that you are not signing away your Fair Use rights:

TERMS OF SUBMISSION

THESE TERMS OF SUBMISSION (THE “TERMS”) REPRESENT A LEGAL AGREEMENT BETWEEN YOU, EITHER AN INDIVIDUAL PERSON OR A SINGLE LEGAL ENTITY (“YOU”), AND SCHMAP, INC. (“SCHMAP”). BY CLICKING THE “SUBMIT” BUTTON, YOU CONFIRM YOUR ACCEPTANCE OF THE TERMS.

1. PHOTOS
The term “Photos” refers to one or more photographs and/or images licensed by You to Schmap pursuant to the Terms.

2. LICENSE GRANT
Subject to the terms and conditions herein, You hereby grant Schmap a worldwide, royalty-free, non-exclusive, perpetual license to include the Photos in the current and/or subsequent releases of Schmap’s destination/local guides.

3. FAIR USE RIGHTS
Nothing in these Terms is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.

4. LIMITATIONS
The license granted in Section 2 above is made subject to and limited by the following express limitations:
(a) Schmap may only distribute, publicly display, publicly perform, and/or publicly perform the Photos pursuant to the Terms.
(b) Schmap shall be required to keep intact all copyright notices for the Photos and provide, reasonable to the medium or means of utilization, the name of the original author (or pseudonym, if applicable) if supplied, for attribution in Licensor’s copyright notice, terms of service or by other reasonable means, and a credit (implemented in any reasonable manner) identifying the use of the Photos in any derivative Photos created by Schmap.
(c) Schmap shall, to the extent reasonably practicable, provide Internet link(s) to your Photos.
(d) Schmap shall not sublicense the Photos.
(e) Schmap shall indicate to the public that the Photos are licensable to others under the Creative Commons license that you have assigned to the Photos prior to Schmap’s initial short-listing of your Photos, and provide a link to this license, where reasonably practical.
(f) Schmap shall continue to make its destination/local guides available at no cost to end users.

5. RIGHTS
You confirm that You own or otherwise control all of the rights to the Photos and that use of the Photos by Schmap will not infringe or violate the rights of any third parties.

6. NO OBLIGATION
Schmap shall have no obligation whatsoever to reproduce, distribute, broadcast, or otherwise make use of the Photos licensed by You to Schmap hereunder.

7. NO AFFILIATION
While the Flickr website and/or Flickr API have been used to short-list your Photos, Schmap claims no affiliation or partnership with Flickr.

8. MISCELLANEOUS
If any provision of the Terms is ruled unenforceable, such provision shall be enforced to the extent permissible, and the remainder of the Terms shall remain in effect. The Terms constitute the entire agreement between the parties with respect to the Photos licensed hereunder. There are no understandings, agreements or representations with respect to the Photos not specified hereunder. If there is any dispute about or involving the Terms or the license granted hereunder, You agree that such dispute shall be governed by the laws of the State of California without regard to its conflict-of-law provisions. You agree to personal jurisdiction by and venue in the state and federal courts of the State of California, City of San Francisco. The license granted in the Terms may not be modified without the mutual written agreement of You and Schmap.

Beyond this, the whole deal makes me uneasy; I license my photos using the Creative Commons Attribution-NonCommercial deed, with the explicit intention of allowing free, non-commercial use of my work, in any manner the appropriator sees fit, so long as I am credited - I absolutely encourage remixing and not-for profit reuse of any of my CC licensed photographs. If Schmaps were using this photo to create an ad-free, community driven travel guide, I’d be more than happy to consent… However, if an organization plans on making money with my photos, I expect to be compensated. Simple, and fair enough.

It looks to me like Schmap has taken time to develop software that flies in the face of the spirit of the Commons by targetting CC licensed work for commercial use, with absolutely no intention of compensating the photographer. Granted, they are relying on the ego of the photographer to get in the way of their common sense, but still… Shady, to say the least.

As a side note, Schmaps is actually software that you install (people still make that stuff?), and is only currently available for Windows. Do you want your photographs associated with a potential nastyware trojan horse?

See also:

Flickr Central: Schmaps
Joe Gratz: Schmap
Adam Fields: Taking Advantage Of The Commons