Flickr’s Wall Art Program Exposes Weaknesses in Licensing Automation

7 December 2014

From Copyright and Technology:

Suppose you’re a musician.  You put your songs up on SoundCloud to get exposure for them.  Then you find out that SoundCloud has started a program for selling your music as high-quality CDs and giving you none of the proceeds.  Or suppose you’re a writer who put your serialized novel up on WattPad; then you find out that WattPad has started selling it in a coffee-table-worthy hardcover edition and not sharing revenue with you.  You’d be pretty upset, right?

Those are rough equivalents of what Flickr, the Yahoo-owned photo-sharing site, has been doing with its Flickr Wall Art program.  Flickr Wall Art started out, back in October, as a way for users to order professional-quality hangable prints of their own photos, in the same way that a site like Zazzle lets users make t-shirts or coffee mugs with their images on them (or Lulu publishes printed books).

More recently, Flickr expanded the Wall Art program to let users order framed prints of any of tens of millions of images that users uploaded to the site.  This has raised the ire of some of the professional photographers who post their images on Flickr for the same reason that musicians post music on SoundCloud and similar sites: to expose their art to the public.

The core issue here is the license terms under which users upload their images to Flickr.  Like SoundCloud, Flickr offers users the option of choosing a Creative Commons license when they upload their work.  Many Flickr users do this in order to encourage other users to share their images and thereby increase their exposure — so that, perhaps, some magazine editor or advertising art director will see their work and pay them for it.

The fact that a hosting website might exploit a Creative Commons-licensed work for its own commercial gain doesn’t sit right with many content creators, who have operated under two assumptions that, as Flickr has shown, are naive.  One is that these big Internet sites just want to get users to contribute content in order to build their audience and that they will make money some other way, such as through premium memberships or advertising.  The other is that Creative Commons licenses are some sort of magic bullet that help artists get exposure for their work while preventing unfair commercial exploitation of it.

Let’s get one thing out of the way: as others have pointed out, what Flickr is doing is perfectly legal.  It takes advantage of the fact that many users upload photos to the site under Creative Commons licenses that allow others to exploit them commercially — which three out of the six Creative Commons license options do.  It seems that many photographers choose one of those licenses when they upload their work and don’t think too much about the consequences.

. . . .

Flickr is — still, after ten years of existence — a major outlet for photos online. As such, Flickr has the means to control, to some extent, what happens to the images posted on its service; and with Flickr Marketplace, it is effectively wresting some control of commercial licensing opportunities away from photographers. Some degree of control over content distribution and use does exist on the Internet, even if copyright law itself doesn’t contribute directly to that control.

. . . .

The problem here is the lack of both flexibility and infrastructure for commercial licensing in the Creative Commons ecosystem. Creative Commons is a clever and highly successful way of bringing some degree of badly-needed rationalization and automation to the abstruse world of content licensing. But it gives creators hardly any options for commercial exploitation of their works.

Link to the rest at Copyright and Technology

Court of Appeals hears Authors Guild’s Google appeal

4 December 2014

From The Bookseller:

Google’s effort to scan and digitize millions of library books violates copyright law and deprives authors of licensing fees, royalties and sales, a lawyer for the Authors Guild told an appeals court in New York yesterday.

The Authors Guild has taken its battle with Google over the digitizing of out-of-print library books to the Second Circuit Court of Appeals in the US after a judge ruled in Google’s favour in 2013.

The Authors Guild’s lawyer Paul Smith argued in front of three appeals judges that Google’s digitizing of millions of books was done for commercial reasons, to increase traffic to Google search engines and deprived authors of a potential market to license books for search. He also argued the Google project stretched what was lawfully allowed under the “fair use” clause of copyright law.

However, Google’s lawyer Seth Waxman argued that the process had “revolutionized” how people find books and that authors’ sales were boosted through the depository, rather than harmed.

“There is no evidence in this record, none, of any market harm to the authors,” Waxman said.

. . . .

Circuit Judge Pierre Leval said most examples of fair use are commercial in nature, for example when newspapers quote other newspapers, and told the Authors Guild’s lawyer: “I would be surprised if you’re going to win the case by pointing out that Google, like the New York Times, is a profit-making enterprise.”

Link to the rest at The Bookseller

Fight Over Yahoo’s Use of Flickr Photos

26 November 2014

From The Wall Street Journal:

About twice a week, someone asks Liz West ’s permission to use one of the nearly 12,000 images the amateur photographer has uploaded to the photo-sharing site Flickr over the past decade.

Ms. West is usually happy to comply. One woman in England created notecards using her floral pictures and sent her 100 cards in appreciation, she said. Vermont Castings, a stove and fireplace maker, used one of Ms. West’s photos on its website and shipped her a small stove as a gift.

But she’s not happy about a recent move by Yahoo Inc., Flickr’s owner, to make canvas prints from the photos she and others post to the site, sell them for up to $49 apiece and keep all of the profits.

“It ticked me off that somebody else is selling them when I was giving them away,” said Ms. West, a retired writer in Boxborough, Mass., who goes by “Muffet” on Flickr.

. . . .

More than 300 million publicly shared Flickr images use Creative Commons licenses, making it the largest content partner. Yahoo last week said it would begin selling prints of 50 million Creative Commons-licensed images as well as an unspecified number of other photos handpicked from Flickr.

For the handpicked photos, the company will give 51% of sales to their creators. For the Creative Commons images, Yahoo will keep all of the revenue.

Yahoo says it is complying with the terms of Creative Commons by selling only images that permit commercial use. The licenses “are designed for the exact use case that we’re enacting through our wall-art product,” Bernardo Hernandez, vice president of Flickr, wrote in an email.

. . . .

Yahoo’s plan to sell the images appears “a little shortsighted,” said Flickr co-founder Stewart Butterfield, who left the company in 2008. “It’s hard to imagine the revenue from selling the prints will cover the cost of lost goodwill.”

The Wall Street Journal contacted 14 photographers with Creative Commons-licensed works on Flickr. Eight said they didn’t object to Yahoo’s move and are happy to get additional exposure for their work. “Any amateur photographer would love to have his or her photos hanging on walls around the world,” Andreas Overland, a Flickr user in Oslo, Norway, said in an email.

Six others objected to the company profiting from their works.

“When I accepted the Creative Commons license, I understood that my images could be used for things like showing up in articles or other works where they could be showed to public,” Nelson Lourenço, a photographer in Lisbon, Portugal, said in an email. Yahoo “selling my work and getting the full money out of it came as a surprise,” he said.

Link to the rest at The Wall Street Journal (Link may expire)

PG says pay attention to the Terms and Conditions whenever you submit your creative efforts online.

Copyright Office posts DMCA exemption petitions

26 November 2014

From Chris Meadows via TeleRead:

A few weeks ago I discussed the need for a DMCA exemption for e-books, in light of the US Copyright Office requesting petitions for such exemptions. The Copyright Office has now posted all 44 petitions it received as PDFs.

. . . .

I was mildly disappointed to see that my petition is the only one which directly addressed the matter of bypassing e-book DRM for personal fair use and backup—or at least, the only one that follows the Copyright Office’s template.

. . . .

The new author advocacy group Authors Alliance (whom we first mentioned a few months ago) has a petition in as well. It starts off promisingly enough, with Authors Alliance saying it “promotes authorship for the public good by supporting authors who write to be read.” (As opposed to those who write and then stick it under their mattress, I suppose.) But then it veers off into serious what-the-heck territory by requesting the right to break DRM on movie discs and Internet streams in order to “[permit] authors to make fair use of excerpts of motion pictures embedded in multimedia e-books they create.”

. . . .

That the DMCA’s anti-circumvention provisions cause a lot of problems for a lot of people. All these uses that people are asking to be able to make used to be perfectly legal. They’d still be legal, if not for that pesky law and a pesky little digital padlock it’s illegal to break. Maybe someday that portion of the law could be repealed outright…or maybe publishers will follow the music industry’s example and drop DRM.

Link to the rest at TeleRead

How an eBay bookseller defeated a publishing giant at the Supreme Court

26 November 2014

From Ars Technica:

Sometimes all it takes to alter the course of history is one pissed-off person. Supap Kirtsaeng wasn’t a crusader or lone nut; he was just an eBay trader who got backed into a legal corner and refused to give up.

To help pay for grad school at USC, he sold textbooks online—legitimate copies that he’d purchased overseas. But academic publishing behemoth John Wiley & Sons sued Supap, claiming that his trade in Wiley’s foreign-market textbooks constituted copyright infringement.

The implications were enormous. If publishers had the right to control resale of books that they printed and sold overseas, then it stood to reason that manufacturers could restrain trade in countless products—especially tech goods, most of which are made in Asia and contain copyrightable elements such as embedded software.

Intent on setting a precedent, Wiley slammed Supap with a $600,000 jury verdict and all but buried him on appeal. But the grad student hung tough, arguing that as lawful owner of the books he had the right to resell them. Eventually he convinced the US Supreme Court to grant review.

Once Supap’s struggle hit the spotlight, powerful supporters such as eBay, Public Knowledge, Costco, and Goodwill Industries joined the fray. But the forces pitted against Supap were arguably more powerful: the movie and music industries, publishers of books and software, and even the US Solicitor General.

Defying the odds, Supap won, and the case that bears his name has become a landmark.[1]  But as the saying goes, “It ain’t over ’til it’s over.”

Throughout 2014, Congressman Bob Goodlatte, Chairman of the House Judiciary Committee, has been holding hearings about copyright reform. Wiley and other prominent copyright holders have been pleading for legislative restrictions on Kirtsaeng.

. . . .

Publishers charged more in the affluent North American market and less in other regions. They called this practice “market segmentation,” but to many it seemed like price-gouging. Supap discovered this himself: a textbook priced at $50 overseas might cost $100 in the US.

Starting in 2006, Supap enlisted his family to make the rounds at Bangkok bookstores, buying titles like Organic Chemistry and Fundamentals of Physics. They shipped the textbooks to Supap’s apartment in LA, and he posted the books for sale on eBay.

Over the next two years Supap imported about 500 different titles and generated sales of around a million dollars. His profit of approximately $100K over the venture’s lifespan helped fund his school expenses.

But Supap didn’t take into account that Wiley might be watching.

. . . .

In Wiley’s global empire, market segmentation was a revered practice. In the US market, Wiley sold premium-priced textbooks with glossy hard covers and sewn-ribbon bookmarks. In overseas markets, Wiley sold economy versions—the same content but with cheaper materials and a warning banner stating that the books couldn’t be sold in North America.

Link to the rest at Ars Technica and thanks to Paul for the tip.

Taylor Swift and the Myth of the Mean Greedy Artist

11 November 2014

From Electric Lit:

This week Taylor Swift did something seemingly unremarkable. She couldn’t come to a contract agreement with a company, Spotify, so she decided to stop doing business with them. Swift’s music is still available on a half-dozen other online streaming services, to purchase digitally or physically, or to listen to free on YouTube. Yet somehow a decision to exercise a modicum of control over the art she creates caused a backlash with writers scolding Swift for insulting her fans, calling her greedy, and urging fans to refuse to buy her music.

Sure, Swift is ridiculously rich, but she is correct that Spotify is a complete rip-off for artists. This infographic shows how stark the picture is. Spotify pays as little as $00.006 a stream, meaning you’d have to play a song 167 times–or about 8 hours of music–before an artist earned a single dollar.

. . . .

It is bizarre enough to think that an artist “owes” you something when you’ve paid them nothing, but the entire idea of “mean” artists who are taking advantage of their fans is especially bizarre in a time when artists give more of themselves to fans than ever before.

. . . .

I understand why people steal music, books, and TV. Who doesn’t want everything for free? But it is getting hard to take the bizarre rationalizations and outright contempt for artists that so many self-proclaimed “fans” have.

. . . .

The bottom line is that artists’ rights are workers’ rights. You are not being progressive or radical by denying artists the right to control their own work. You are not helping the underprivileged by making it impossible for anyone who isn’t already rich and privileged to take up artistic careers. Your pirated Taylor Swift song isn’t feeding the poor. If you want to fight the power, maybe try hacking JP Morgan instead of pirating a vampire romance for your Kindle.

. . . .

None of this is to say that artists shouldn’t give their work away for free. Free stuff is great! Streaming is great! Self-publishing, ebooks, and the rest are all great. The point is that it should be up to the artist. If one author wants to put up all their work for free online and another wants to charge ten dollars, those should be their decisions. If you don’t think that a book is worth ten dollars, then don’t buy it. The artist is not “mean” or “greedy” or “evil” for wanting money, and you have near infinite other options to spend your time on. The current climate is one where artists need to experiment with different ways of making and selling work, but that means letting them try different things—not demanding that they do exactly what you want them to do.

Link to the rest at Electric Lit and thanks to Denise for the tip.

Supreme Court Won’t Hear Dispute Over Sherlock Holmes

4 November 2014

From the Associated Press:

The Supreme Court won’t take up a copyright dispute over the right to depict Sherlock Holmes in a new anthology of stories.

The justices on Monday declined to hear an appeal from heirs of legendary writer Sir Arthur Conan Doyle, who say anyone portraying characters from the popular detective series must seek permission or pay a licensing fee.

A U.S. district court ruled that copyrights had expired on all Sherlock novels and stories published before 1923, but not on the final 10 stories published after that. The lower court said author Leslie Klinger could use characters from pre-1923 works and a federal appeals court agreed.

Link to the rest at the Associated Press

Dutch copyright succumbs to aging as exhaustion extends to e-books

2 November 2014


The District Court of Amsterdam recently concluded that, from now on, ebooks are equivalent to paper books, thus becoming susceptible to resale under the exhaustion principle by application of the UsedSoft decision (C-128/11) of the Court of Justice of the European Union.

. . . .

The whole intellectual property community had to wait a long time for one of these Justin Bieber-like decisions (you love them, you hate them or you simply don′t care) following from the Court of Justice of the European Union (CJEU) in UsedSoft(C-128/11) and, it has to be said, it fully discharged its duty when it stated that the exhaustion doctrine was applicable to downloaded software which lacked tangible support. The court did this mainly by applying the exemptions to recital 29 of the Copyright Directive (Directive 2001/29) contained in recital 7 and Article 4(2) of the Software Directive (codified by Directive 2009/24).

Irrespective of personal opinions on the outcome of the UsedSoft case, the lack of a defined scope for the application of its doctrine, has left both scholars and national courts a wide margin for interpretation. For some, it was clear that this decision only affected software, while for others, it could apply to all kinds of computer files (eg music, games, video). One further group considered that its application would depend on the specific licence and its terms, depending in great measure on the use of terms like ‘sale’ or ‘purchase’.

. . . .

Tom Kabinet also argued that the only e-books that were resaleable via its website were in epub format and files without Digital Rights Management (DRM-free). Tom Kabinet also provided a list of online stores that sold e-books with those characteristics, and all those stores were legitimate shops in accordance with the general conditions established by the Dutch Home Shopping Organization (Nederlandse Thuiswinkel Organisatie). Further, the defendant considered that, as in the UsedSoft decision, the content was acquired through a licence of indefinite duration for a one-time fee; the purchase thus became an ordinary sale and, as such, might fall within the scope of the CJEU ruling.

Regarding its sale process, the defendant maintained that its software scanned each uploaded e-book in order to verify that it had not previously been sold by the same user, asking that user to remove the file if he had done so. If the e-book went through this process and was deemed compliant, Tom Kabinet would provide a watermark for the file. This would not necessarily stop illegal sales through other platforms, but would do so on the defendant’s.

Lastly, Tom Kabinet submitted that it had not, strictly speaking, committed any act of reproduction: uploading the file by the seller contravened neither the Copyright Act nor the Copyright Directive.

Link to the rest at JIPLP and thanks to SB for the tip.

Google will have to pay publishers for aggregating news in Spain

2 November 2014

From The New York Times:

Spain’s parliament has approved new intellectual property laws that allow news publishers to charge aggregators each time they display news content in search results.

The law goes into effect Jan. 1 but does not specify how much aggregators like Google News could be charged. Spain’s AEDE group of news publishers had lobbied for what is known as the “Google Tax” but has not provided specifics.

Google Inc.’s Spanish division said Thursday it was disappointed with the outcome and will work with Spanish news publishers to help them increase income.

Link to the rest at The New York Times and thanks to Jan for the tip.

New “orphan works” rule in UK makes millions of creative works available for public display

1 November 2014

From GigaOm:

One of the most nagging problems in copyright law is what to do about so-called orphan works: artistic creations that have no known owner, but that nonetheless can’t be shared or displayed because doing so could lead to a punishing lawsuit. This situations forces museums and libraries to keep parts of their collection off the internet, and bars public access to millions of cultural works.

Fortunately, the British government has finally found a solution that it says will result in more than 91 million works becoming available for the first time.

The solution takes the form of a licensing scheme that lets anyone pay a token amount (reportedly ten pence) into a trust, and in return get permission to use an orphan work. In the unlikely event the author of an orphan work comes forward, they can assert control of the work and receive money from the trust.

. . . .

The new UK scheme is useful for the museums, and for anyone else who wants to distribute orphan works without fear of a lawsuit, but it still does not address the underlying problem: copyright terms are far too long, and fail to provide a rationale balance between rewarding creators and ensuring public access to culture (instead, copyright is too often treated as an ATM by greedy estates — like that of Arthur Conan Doyle — and their lawyers).

Link to the rest at GigaOm

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