Category Archives: Copyright

The Fire Hose

Dateline SXSW – I’ve written over the last year about how Instagram is creating a commercial service to supply photos for editorial and marketing purposes. The legal foundation was laid in January 2013, the service was turned on as a trickle last fall, and now it’s starting to get traction.

At SXSW, I spoke with some people who are making use of these photo streams. This includes people on the client side who are building campaigns with these services, as well as companies that help clients make sense of the photos and other data.

They have a name for it. The Fire Hose.

The analogy is obvious on one level. There are so many images coming through these services, it’s like the difference between a drinking fountain and a fire hose. These companies are excited to create engagement with their audiences by mining the millions of photos, tweets, Facebook posts and more that make up the world of User Generated Content (UGC). UGC creates a  new kind of media engagement.

And the Fire hose analogy is also useful in another way. In these arrangements, the company does not pay for the “water” (the photos), they pay for the access to the “pipe” (the API.) This allows the service to sell access to the material in a way that denies that the photos have any value. The value being charged for is the underlying access to the Fire hose and the connectvity. (See Getty).

Of course, this has profound implications for the independent creator. If you put your images on sites like Instagram that are part of the Fire hose, they may be republished widely with no money coming to you.  And use of UGC is creating a great deal of excitement for the client companies. It will take an ever larger share of the budget and attention of advertising, marketing and editorial teams.

Even though the use of the Fire hose does not replace the use of professional photography, it will certainly divert money away from it. I believe that it will take a while for companies to understand the best way to get a proper mix of UGC and PCC (Professionally Created Content, to coin a term.)

Still lots unsettled
I can also report that much of what I have previously identified as unsettled remains unsettled. This uncertainty is what is holding back the full blast of the hose. The unsettled issues are, in my view, primarily about the legalities of the TOU agreements.

• Are the rights in these contracts really something that can be sublicensed?
• Are the liability protections in the TOU going to hold up in court?
• Does the user really forfeit the right to terminate the agreement?
• Will there be a public relations nightmare in the early days that makes this a risky tool for marketing?

As we see companies pushing the envelope, we’ll start to find the legal and moral edges of what is considered acceptable use of the Fire hose. I expect that the boundries that we settle on will give Facebook, Twitter and Google an extremely broad right to make money from the Fire hose.

If you are a professional creator, it would be smart to factor this into your business strategy and your long-term planning, carving out a viable value proposition in a world drowning in UGC.

The Instagram Papers

DAM Useful Publishing and ASMP have just released The Instagram Papers, a collection of essays about the current Instagram Terms of Use, and the rights that they give the company.  The company claims a right to do nearly anything with the photos and videos uploaded to the service, including to sell them, forever.

TheRightToTerminate

In response, we have put out an open call for a meaningful right to terminate social media contracts. We believe that the right to sublicense your photos and identity should be something you can revoke, if the company’s practices become objectionable.

Over the next few months, ASMP will be working with other organizations to advocate for this basic contractual right. If you are interested in lending your name or your organization’s name to the effort, you can contact me here.

Here’s a link to the complete papers, which are available for free download and distribution.

 

 

SOPA and PIPA

Here’s a simplified outline of the problems, as I understand it.

The bill seeks to let the government create a naughty list. If you are on the naughty list, or if you link to content hosted by someone on the naughty list, then your whole website can be shut down. The government will block the site by closing the series of tubes that make up the internet.

There are two big problems with this.
1. The first is that the list is not created by standard court proceedings.
2. The second is that the machinery to enforce the naughty list totally screws up internet addressing and security, and is not workable.

Getting on the naughty list
In order to get someone placed on the naughty list, you do not have to sue the accused. You don’t have to  provide proof that you own the content that is being infringed. And the accused does not have conventional rights to challenge the blacklisting: to present an argument that they also might have rights to the content.

This is, as I understand it, injunctive relief. This is normally used for some kind of emergency action by the court. The bill creates a perpetual state of emergency where lots of action would be be taken outside of conventional legal channels.

Any site that allows users to post content is at risk of being shut down, so the naughty list can expand like crazy.

And don’t hold out much hope that photographers and other independent creators can get nbc.com or capitorecords.com or universalpictures.com put on the naughty list simply because they violate *your* copyright. This is a hammer built for the interests of big media.

Breaking DNS
While #1 is a big problem, the bigger problem is the mechanism that the bill proposes to enforce the naughty list. In order to block a website, you need to make sure that no request to see that website (take me to www.Amazon.com) actually goes to Amazon.com.

In order to accomplish the blocking, you need to break a fundamental part of the DNS system (the thing that makes sure that you are at the real Amazon.com). This is not really possible, since there are so darn many tubes.

The official DNS list is sent to all ISPs worldwide, so that requests for websites can be routed properly. SOPA and PIPA want the US government to be able to edit the list used in the US, removing sites that are deemed – outside of a traditional court – to be in violation.This breaks the integrity of the DNS system in a fundamental way.

At best, we could be like China, and block access to naughty sites for web surfers that are located within US borders. But circumventing that is pretty trivial. Millions of foreign portals will spring up that will let you access the real DNS list that the rest of the world uses. Once you go through that portal, you are in a world where all websites could be easily spoofed, since you are outside of the (formerly) standard DNS system.

Once you break the universality of the DNS list, you totally screw up security for nearly everyone. And policing that is a never-ending game of whack-a-mole.

But aren’t you in favor of copyright?

I say all of the above in the context of an independent creator – photographer, author, videographer.  Yes, I am infringed every day by companies and individuals and websites in all kinds of ways, including offering free copies of my book to paying members. And I believe that this is a big problem for people like me. I don’t know what the real solution is, but I can definitely see what the solution is not.

Hopefully this thing is dead. Congress is learning that you don’t want to get the internets mad at you.

SB3 Review

I have just returned from the ASMP’s Strictly Business 3 conference, and several people have asked me to report on the worthiness of the event. I can say with real enthusiasm that it would be quite helpful for professional photographers of any level.  Whether you are just starting out or have an established business, there is a lot to benefit from.

In some ways the event was mis-branded.  It’s not just a continuation of the earlier SB1 and SB2 events, because that’s not what our industry needs. We are facing huge changes, and the conference is really geared to helping photographers understand and survive the seismic changes we are currenly undergoing.  Details after the jump.

Continue reading SB3 Review

Cory Doctorow – How copyright threatens democracy

It would probably be more accurate to say “how copyright enforcement by multi-national entertainment companies can threaten democracy.” No, I’m not going all “copyleft” on you. This movie picks up on a thread from several weeks ago when I recommended watching RIP, A Remix Manifesto.

Current US copyright laws have arguably gone over the edge, as both RIP and this movie point out. In the process the individual creator is getting squeezed.  Part of the general public sees rights holders as unreasonable and greedy operators, trying to lock up the most recent version of our cultural heritage behind a pay wall forever (even as the current culture borrows liberally from intellectual property of the recent past.)

Many media conglomerates, meanwhile, see the residual value attached to the work of creators, and are doing their best to acquire all rights without regard to fair compensation to the creator. If the work has a hundred-year economic life, then they have even more reason to wrest total ownership of the work from other parties.

It is arguable that the extension of copyright has therefore hurt the economic interests of many creators.

At the recent NDIIPP partners meeting, we heard the phrase “fix the copyright problem”.  I don’t have high hopes that a fix would be working in the interest of the independent creator.

In any case, for your viewing pleasure. The intro to Cory starts at 9 minutes in. There’s a question about how this relates to photography at 52 minutes. (I’m going to turn comments back on, and hope the spam does not return):

RIP: A Remix Manifesto

Last year at SilverDocs, I saw a great piece of agitprop –  RIP, A Remix Manifesto by Brett Gaylor. In this film, Gaylor makes the case for remix culture: essentially he asserts that all culture is in the process of continual remix. And he also asserts that revisions to the copyright laws of the US do real harm to culture, creativity, and society in general.

I have some sympathy for his argument, particularly with respect to the music industry. I think he makes the case that copyright extensions have locked up borrowed music in the hands of the people who happened to be borrowing it at the right time. (The song, Bittersweet Symphony by The Verve The Rolling Stones is a great case in point).

In any case, if you make any of your living off the sale or licensing of copyrighted material, then you owe it to yourself to watch this movie.  It will allow you to see how copyright holders are viewed in some circles. (It will make you angry at some points – that’s part of what makes it great agitprop).

Here’s the movie.   Appropriately available free on the internet.