Dangerous Little Knowledge

Not surprisingly, friends contact me from time to time with copyright-related questions. I’m careful not to give definitive answers to most of these, but I can usually point them in the right direction toward a solution.  Very recently, a dear friend (let’s call her Sarah) asked my advice regarding an email she received from a photographer who demanded removal of an image from her blog as well as a substantial fee for damages.  Sarah is college educated, a Gen-Xer, an artist herself, wicked smart, talented, and very respectful of people in general, let alone other creators.  I would characterize her as among the last people who would knowingly infringe a fellow artist’s copyrights.

Sarah considers her blog educational and non-commercial, and she credited the photographer. These factors led her to assume her posting the photo was a “fair use,”  and the mistakes she made are consistent with the kind of questions and assumptions I hear all time.  Real copyright experts may have another view, but it seems to me that the non-commercial thing is among the most common mistakes made when it comes to assuming a use is fair. In reality, commercial or non-commercial use of a work is is not necessarily dispositive (as the lawyers say) when determining whether or not a use would be judged fair. Setting aside the question of the photographer’s award demand — I can’t comment on whether or not it was in line with common practices among visual artists —  I was sorry to tell Sarah that her use was almost certainly an infringement. It only took her doing a bit of research to realize that fair use is a very specific component of copyright law that requires a federal court to weigh four factors in order to reach a conclusion.

What I find interesting, though, is that while I have been associated with originators and users of creative media my entire life, until Web 2.0 came along, I don’t remember people making decisions to use works based solely on what they thought they understood about copyright.  Put another way, I am not surprised Sarah misunderstood fair use so much as I am curious as to how the misinformation got into her head in the first place to the extent that she honestly believed she was on solid ground.  Because I bet her confusion is quite common.  Moreover, I suspect that so much misunderstanding about copyright is aggravated by both the design of the Web and even by the din of the copyright debates in the blogosphere. Not only does an interface like Google image search make potential infringement just a little too easy, but it also isn’t helpful to have a constant drumbeat of headlines written by entities with an interest in weakening copyright.

Lingo is catchy. We hear a unique term, assume we know what it means, then misapply it and spread the gospel. I used to see this a lot in video post production whenever a producer got hold of a new expression he thought he understood. Similarly, I suspect there’s so much chatter about copyright issues swarming around the Internet today, that terms like fair use seep into public consciousness; and then intelligent, thoughtful people like Sarah make perfectly reasonable yet entirely false assumptions about what the term means or how the principle is actually applied.  A clear case of a little knowledge being a dangerous thing.

And of course, it’s not just copyright; it’s anything. The wealth of “content” out there doesn’t always make us more informed, but it can make us think we’re informed, sometimes just enough to get us into trouble.  Because it’s one thing to have an opinion about a subject like copyright, but another thing to act on the assumption that you can be your own attorney, which is no more advisable than, say, using WebMD to diagnose the presentation of some new symptom.

Let me pause and write in the imperative for a moment by way of what public service I may offer:

If you have to imagine a fair use argument, then a case for infringement by the rights holder may exist.  Unless you have really researched fair use and you are legally and/or  financially prepared to defend your use, don’t assume you know what you’re doing. Odds are you don’t. There are no bright line rules when judging fair use.  Plus, if you’re just writing a blog and need an image, there are probably better and clearly legal options like Getty Images’ free embed service. Having said that, there’s nothing wrong with asking the rights holder for permission. He just might say yes.

Of course, the argument from the anti-copyright crowd might be that Sarah’s experience makes a good reason to “expand” fair use in the digital age.  For instance, readers may be generally aware of the Internet industry’s proposal to  “export” U.S. fair use principles through fair trade agreements despite the fact that our trading partners have radically different legal systems, and none has our First Amendment. I bring this up to illustrate the point that I believe this industry continues to trade on the populist tactic of oversimplifying legal frameworks in order to advance its own agenda.

And this goes back to what I meant when I said that the design of the web as we know it adds to the confusion of general users as to what’s fair and what’s infringing.  After all, the image is right there on Google image search.  Why not right click, copy, and paste into a blog, etc.? Yes, that’s certainly a paradigm Google et al want to promote, but let me cut to the chase here:  if you’re an individual with mere mortal resources rather than billions of dollars and a phalanx of attorneys, taking the “infringe now, apologize and maybe pay later” approach of Silicon Valley corporations is probably a bad strategy.

Meanwhile certain experts may convince users that they’re on solid ground.  For instance, fair use scholar Peter Jaszi, in his testimony before Congress in January 2014, stated the following:

“Fair use, one might say, is like a muscle – it will grow in strength if it is exercised, and atrophy if it is not. But, by the same token, fair use is hardly unusual or exotic today. Everyone who makes culture or participates in the innovation economy relies on fair use routinely – whether they recognize it or not.”

I don’t presume to criticize Jaszi’s scholarship; I’m not remotely qualified to do so. But to the ears of fellow laymen, statements like this can be interpreted as permission to push the boundaries of fair use, which may be particularly hazardous if one has not at least researched the basic principles in the first place. High-level theory, debate, testimony, and discussion in the halls of academia do not necessarily provide an accurate picture of the law as it is currently applied.

Add to all that the massive volume of un-scholarly blogs, editorials, and PR messages aimed at weakening one facet of copyright or another, and confusion is likely to be the rule rather than the exception.  Each individual should do the research and decide for herself which among the many proposals on copyright seem thoughtful and innovative and which are serving vested interests. In the meantime, confusion leads to infringement claims, which can lead to damages, which pisses people off who otherwise respect copyrights. And in this sense, all the Sarahs out there become a bit like cannon fodder in a larger battle being waged by billion-dollar corporations.

© 2015 – 2017, David Newhoff. All rights reserved.

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22 Responses to Dangerous Little Knowledge

  1. Anonymous says:

    I always recommend this on fair use
    http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

    There are an awful lot of people that think that if they are not making money from a use then their use is fair. Personally for bloggers, individuals, students, and educators, I’m not bothered about their reuse which is why I use the CC-NC license. If the reuser is attempting to make money from the use then it is a different issue altogether. Most photographers will respond quite quickly to a use request, and flickr has over a 100 million CC-NC images that bloggers can use.

  2. The simplest and best solution is to not deal with or use imagery that is posted publicly but not under the CC-NC license unless you are specifically contracting someone to do so. There is just as much work freely available from artists and photographers that do just that. In short, there is no reason to infringe on anything as there is generally no reason to pay for stock photography in the first place.

    Also, people should consider simply taking the picture themselves as most times they don’t actually need a professional shot. If you want a picture of a tree on your site, go take one and slap a filter on it, should suite most peoples purposes just fine.

    On the other side, as with other media I think it is important for artists to strictly control works that they wish to sell and to realize that once sold and presented in a public space, they no longer own that work as there is no way to stop it from propagating.

    • David Newhoff says:

      The problem, AV, is that once the photo is online in any context, even a professional’s website, it will show up in Google image search and is then available for grabbing and pasting. The work doesn’t have to be sold at all.

      • Even just on their website images can be taken. Watermarks work somewhat but ultimately once a non watermarked version is out their(say it is legitimately sold to a company for a web use), there is no way to stop it from propagating. A lot of different technologies need to be changed for these things to be locked down.

      • David Newhoff says:

        Yes, an image can be taken from anywhere, and Anonymous’s Tineye reference is interesting. But when someone goes looking for an image, they don’t go to specific websites typically, they go to Google image search. As do I. And that’s fine if all one wants to do is look at an image or use it in some way that is not republished.

      • Anonymous says:

        Actually there is a way of stopping it from propagating. tineye for example can detect similar images. So if I say to facebook, or blogger (for example) here are 10,000 images I don’t want to appear on your site that should be sufficient. Yes?

      • David Newhoff says:

        Yeah. That’s a cool product.

      • Why not blacklist on Google too? I ensure that no images from my sites appear on GIS, but there are images that have been blogged on other sites, I can’t see why I cannot specify that the images are not available on GIS no matter where they happen to have been posted. Effectively we should be able to blacklist domains. If I can determine which books the images appear in why not which catalogs too?

      • Anonymous says:

        John Warr–
        “Why not blacklist on Google too? I ensure that no images from my sites appear on GIS, but there are images that have been blogged on other sites, I can’t see why I cannot specify that the images are not available on GIS no matter where they happen to have been posted.”

        For a blacklist to be enforceable, there has to be a copyright behind it. Google image search is fair use (this has been litigated before). As a result copyright doesn’t extend to controlling the use of images in that situation.

        You, as a copyright holder, are therefore as impotent as a stranger off of the street in forcing Google to do anything it doesn’t want to do. They might honor it, if they feel like it, though, so you might want to adopt a honey approach instead of a vinegar one.

      • John Warr says:

        Google’s current image search has not been found to be fair-use. Arriba soft vs Kelly was found to be fair-use when they were using 180px images. Google vs Perfect 10 was found fair when they were framing a web page. Nowhere has the use of unframed 300px images been found to be fair-use. Indeed in the Perfect10 case Google argued (lied) that robots.txt could be used to stop the index. All I’m saying is that a global blacklist should work the same as robots.txt even better as many people do not have the ability to create a robots.txt file.

        What we have seen in the last 15 years is a gradual slippage in what these robber barons are allowed to get away with. In Kelly’s case it was argued that the size of the thumbnail images wasn’t of commercial use. Completely untrue as we see on millions of commercial websites every day the Kelly size images are the preferred image size for web decorations. The current Google sized images are more than big enough to be of a commercial use especially on mobile devices.

    • John Warr says:

      OK as I’ve said before, but I suspect you don’t listen, I take images of cultural objects along with images of entomological subjects. The bug images record the presence of the organism at a particular location and the posting of them aids science in documenting an organisms range. Many of the cultural photographs I take are inside and outside European churches, I have detailed images of almost every stained glass panel in the main French cathedrals, along side many English ones. I also have detailed images of stone carving, and of memorial tombs, and medieval wood carving.

      Some think that because of this I may be in some way religious whereas I believe that Richard Dawkins is far too soft in his condemnation of them. In any case the glass, stone and wood carving, and the tombs document a part of the art and political history of Europe. I travel across Europe and England taking the images, and have the ability to get locked places unlocked. The images have been used on academic websites and articles, in books and exhibitions (last year images some of the entomology images were used by the Natural History Museum in Mexico City to teach children about butterflies, and some of the stained glass images were used by a music festival in France to document the work an 16th century artist).

      Bloggers using the images, some of the tomb images are used by re-enactment groups to document authentic weaponry and clothing from the 14th to 17th century. Churches use them on their websites, people use them for genealogical purposes (sure the Earl of Whatsit was your ancestor), or are just glad to see an image of where their great great grandparents were married, or the baptized. Whatever. I have no problem with any of this.

      The issue I have is that any organization that want to use the images for commercial purposes needs to obtain a license.

      https://www.google.co.uk/search?q=site:professor-moriarty.com&rls=org.mozilla:en-US:official&source=lnms&tbm=isch&sa=X&ei=hv_JUo2NL8WThQf4ooH4DA&ved=0CAcQ_AUoAQ&biw=1344&bih=730

  3. Anonymous says:

    David–
    “What I find interesting, though, is that while I have been associated with originators and users of creative media my entire life, until Web 2.0 came along, I don’t remember people making decisions to use works based solely on what they thought they understood about copyright.”

    Typically, they still don’t do that; decisions to use works are made on whether the user wants to use it or not. Often this is grounded is aesthetic reasons of one sort or another.

    What’s changed is that now it’s easier to use some works in infringing ways (copying and pasting an image file is easier than tracing it), and it’s easier to make the infringing use publicly known (such as putting it on the Internet, instead of in a mimeographed zine with a circulation of three).

    The only people I can think of who make decisions to use works solely based on copyright are the people who offer random wikipedia articles as e-books or print-on-demand books, and charge for them. I can’t imagine anyone buys the things, but it certainly isn’t a noteworthy phenomenon.

    “Moreover, I suspect that so much misunderstanding about copyright is aggravated by both the design of the Web and even by the din of the copyright debates in the blogosphere.”

    Meh. I think that the main thing is that copyright is, and has been for some time, totally in left field. It’s become almost completely detached from our social norms concerning copyright. Your friend was behaving in a way which was not violative of such norms, just of the law.

    This is much like how under Prohibition, lots of people drank and saw no problem with it, but it was illegal. You seem to support the same principles of the temperance movement; people should suffer legal harms for innocuous but illegal actions. I take the opposite stance, like the VCL did — actions of this sort are not sufficiently harmful so as to merit being prohibited. We should save legal remedies (and the dignity of the law, which utterly depends on the voluntary respect of the people expected to comply with it) for serious matters, such as unfair commercial copyright infringement.

    “Not only does an interface like Google image search make potential infringement just a little too easy”

    I have no idea where you came up with that from. Google Image Search doesn’t enable infringement in the least.

    “but it also isn’t helpful to have a constant drumbeat of headlines written by entities with an interest in weakening copyright.”

    I think it’s very helpful, so long as the articles focus on actual harms caused by too much copyright protection. I’ve had great luck in getting ordinary people to support reforming copyright just by telling them about what the law actually is, and how it differs tremendously from what they think the law is. As it happens, people would rather see the law reflect their opinions about what’s appropriate, than have the law tell them that they’re wrong and that they have to change their minds. Sometimes the latter is the right course (e.g. compelling desegregation), but not for mere copyright or Bloomberg’s attempt to ban large sodas, etc.

    “Because it’s one thing to have an opinion about a subject like copyright, but another thing to act on the assumption that you can be your own attorney, which is no more advisable than, say, using WebMD to diagnose the presentation of some new symptom.”

    Well, in this we are in full agreement.

    “Of course, the argument from the anti-copyright crowd might be that Sarah’s experience makes a good reason to “expand” fair use in the digital age.”

    No. Someone who had an anti-copyright position would argue to abolish copyright, which necessarily means that fair use is no longer needed or relevant.

    Someone who wishes to reform copyright may be very pro-copyright indeed, but still believe that less of it would produce better outcomes.

    That said, fair use doesn’t need expanding. Your friend’s experience is just more evidence that we need to expand the number of statutory exceptions to copyright which allow for unauthorized uses regardless of whether they’re fair or not.

    “For instance, readers may be generally aware of the Internet industry’s proposal to “export” U.S. fair use principles through fair trade agreements despite the fact that our trading partners have radically different legal systems, and none has our First Amendment.”

    That our trading partners suffer from numerous cultural and legal failings, such as a lack of extremely strong free speech protections (not that ours couldn’t use some more strengthening) is no excuse for our failing to help them improve their situation. What’s your next bit of supposed wisdom? That because China doesn’t have the tradition of protecting human rights that the US has, we should not bother trying to use trade negotiations as a means to export those eminently sound protections? Screw that. We should absolutely flex our trading muscle to help improve the state of the world, with regard to environmental issues, labor relations, etc. And hopefully others will do the same with us for a real race to the top.

    Incidentally, your argument strikes me as rather two-faced, given that the copyright maximalist crowd has long been working to export stronger copyright protections into the rest of the world. For example, our loathsome anticircumvention restrictions have been getting exported in trade deals to countries which had been fortunate enough not to suffer from them. Are you going to do the intellectually honest thing and speak out against that, so long as you’re speaking out against fair use? I’m doubtful, but I’d be happy to be surprised.

    “And this goes back to what I meant when I said that the design of the web as we know it adds to the confusion of general users as to what’s fair and what’s infringing. After all, the image is right there on Google image search. Why not right click, copy, and paste into a blog, etc.? Yes, that’s certainly a paradigm Google et al want to promote”

    First, that isn’t the design of the web. That’s just the usual desktop interface concept pioneered by Xerox back in the 70’s: You can copy and paste pretty much anything. A picture on a web page is not treated specially.

    Second, Google couldn’t care less. They make their money by selling ad space on the results page of the search. (Or so I presume; I block ads pretty thoroughly) They don’t stand to profit if you copy it. And Image Search isn’t just used, and probably isn’t even primarily used, by people who want to copy images. It’s used by people who want to find information online in situations where text is not adequate to judge the results.

    “if you’re an individual with mere mortal resources rather than billions of dollars and a phalanx of attorneys, taking the “infringe now, apologize and maybe pay later” approach of Silicon Valley corporations is probably a bad strategy.”

    Oh, I disagree. While of course people should strive to obey the law (particularly if it’s worth obeying), a pragmatist will bear in mind the odds that the law will be enforced against them, and factor this into the calculus as to whether or not to infringe. Large businesses really don’t have an advantage here; copyright law is pretty clear-cut, and a phalanx of attorneys might run up the bill, but it won’t save an actual infringer who is caught dead to rights. Rather, the strategy you’re seeing is having attorneys carefully guide their clients to not crossing the line. Getting right up next to it, perhaps, but not crossing it. If Google was infringing substantially, they’d get shut down hard, much as with Napster. You might wish that that would happen, but that you think they’re breaking the law doesn’t mean that they actually are. Instead, things like Google Image Search, or YouTube are perfectly legal so far as Google is concerned. Third parties might use them to infringe, but that’s not Google’s problem.

    Individuals typically lack the precise counsel needed to stay legal but still generally accomplish their intended goals. Instead, they cross the line like a crazy person, but tend to fly under the radar.

    “Each individual should do the research and decide for herself which among the many proposals on copyright seem thoughtful and innovative and which are serving vested interests.”

    Why can’t a proposal serve vested interests and be thoughtful and innovative? The vested interest shouldn’t come first, and really shouldn’t be a factor in weighing the merits of a proposal at all, but their presence alone doesn’t render a proposal intolerable.

    “In the meantime, confusion leads to infringement claims, which can lead to damages, which pisses people off who otherwise respect copyrights.”

    That just gets back where we started: It’s possible to respect the general idea of copyrights, and to follow some ‘folk laws’ about copyright, while still breaking actual copyright law. The reason people get pissed off is because they earnestly didn’t think they did anything wrong. I say they’re right, and barring a good reason otherwise, we should change the law to comply with the vague notions which govern what they’ll do regardless.

    *****

    John Warr–
    “Many of the cultural photographs I take are inside and outside European churches, I have detailed images of almost every stained glass panel in the main French cathedrals, along side many English ones. I also have detailed images of stone carving, and of memorial tombs, and medieval wood carving.”

    And you’re getting permission from the copyright holders of those works to take your photographs, right?

    What’s that? Those works are not copyrighted due to arbitrary policies as to what does and doesn’t get protected? In that case, why not other arbitrary policies to limit the scope of your protection? I don’t have a problem with your having a copyright against commercial use of your photos, but why should your permission be required at all for non-commercial use?

    (Also, to the extent that your photographs are merely slavish reproductions, which may occur with detailed images of specific panels, you may not have rights at all, or they may only be enforceable in extreme cases. If you’re terribly possessive of them, you may want to have a qualified person look at them and give you an opinion.)

    • David Newhoff says:

      “If Google was infringing substantially, they’d get shut down hard, much as with Napster. You might wish that that would happen, but that you think they’re breaking the law doesn’t mean that they actually are. Instead, things like Google Image Search, or YouTube are perfectly legal so far as Google is concerned. Third parties might use them to infringe, but that’s not Google’s problem.”

      Google was in a position to defend YouTube in a mass infringement case for seven years, until the dynamics changed and the litigants had reason to settle. That represents something of an “infringe now, deal with it later” strategy. My point is that it’s best not to push boundaries unless you’re prepared to defend yourself in a potential case. Fair use is a great example. I encounter people all the time who think it’s a) a bright line; and b) something that begins with non-commercial use. Meanwhile, they’re not considering the fact that a judgement of fair use doesn’t actually exist absent an infringement claim in first place. Of course there are uses that are understood to be fair without a case (e.g. classroom education), but more and more uses like my friend’s blog example are occurring; and with those uses, confusion has spread.

    • Brightman vs Corel eh! In that case Corel took Brightman’s analog images and digitized them. Effectively they applied some level of skill in rendering the digitisation, colour and contrast etc, that Brightman did in creating them in the first place. Had they simply filched existing digital files I suspect that the outcome would have been different.

      Interestingly it seems that it was Brightman’s intent to produce a faithful representation of the images on transparency slides that was their undoing. If they had simply produced images that were slanted, out-of-focus, and perspective distorted they’d have been good.

      As such any SG images I create have had contrast and colour shifts applied, along with edge enhancement filtering and overlays applied to render an appealing image, and perspective will have been altered so that it suits a front on view rather than one where the viewer is looking upwards. Whether it is an exact copy of the original is not my concern. Stone work and carving does not appear to be part of the Brightman vs Corel decision.

    • M says:

      Meh. I think that the main thing is that copyright is, and has been for some time, totally in left field. It’s become almost completely detached from our social norms concerning copyright. Your friend was behaving in a way which was not violative of such norms, just of the law.

      Exactly the point I wanted to make. David starts this post by framing the individual in question as an extremely reasonable, intelligent person making a assumption about copyright that he himself admitted is widespread.

      At some point one must admit that the problem is not the people, but the law itself.

      • John Warr says:

        David starts this post by framing the individual in question as an extremely reasonable, intelligent person making a assumption about copyright that he himself admitted is widespread.

        Extremely intelligent people made assumptions that the world was flat.
        Extremely intelligent people made assumptions regarding the origin of life. And in point of fact the flat earthers are less wrong than the non-commercial and credit is ‘fair-use’ believers.

        I can list a whole bunch of things that intelligent people assume is true based on a cacophony of voices, that just ain’t so.

      • M says:

        If copyright was a law of nature, you’d have a point. You’d also have no problem “enforcing” it, because it would be physically impossible to violate copyright. 🙂

      • John Warr says:

        WTF is a ‘law of nature’? Do you mean some like E=MC2? If so no laws of society are like that.

    • Here is a project that came into our in-tray the other month. It involves major European Museums, Optic companies, computer graphics, and manufacturing. The project is to take works of art and create copies that can be given to the blind so that they can experience the surfaces. My colleagues work alone will have cost several $1000, the graphics cards on the computers cost in excess of $30,000, the STL files produced are 10s of Gb in size, the computers have around 128Gb of RAM. New recording devices and techniques have been built, new fabrication techniques developed. All to create the ultimate in ‘slavish copies’ where the digital files have no legal protection should they be filched from a server.

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