Category: Copyright

“Monkey selfie” photographer reportedly broke. And for what?

Photo sources by mrbrainous & artush

This is a story about how people with self-righteous and futile agendas end up harming creators for absolutely no reason—and even end up harming society in the bargain. I’ve made light of the “monkey selfie” case in past articles because it’s hard not to. I mean, there’s a monkey in it.  But for U.K. wildlife photographer David Slater, it’s no laughing matter, especially after the organization PETA decided to sue him on the grounds that the copyright in the photograph belongs to the crested macaque depicted in the image.  The Guardian reports that Slater is now financially broke as a result of defending himself in this ridiculous case, and it’s impossible to fathom an upside to any aspect of this whole story. But let’s back up a little …

In 2011, Slater was working on the Indonesian Archipelago on the island of Sulawesi, studying a troupe of black crested macaques. These animals are endangered, hunted for meat, and it is only because of photographers like Slater than many of us even know a damn thing about black crested macaques.  According to his own statements, Slater spent three days learning to use the animals’ natural curiosities to his advantage and then purposely set up the conditions by which the macaque in the “selfie” (a female he refers to as Ella), ultimately snapped her own image while he braced the camera on a tripod.

There is nobody—other than the monkeys themselves—who can refute Slater’s description of the conditions by which the photo was made; and as this is the only evidence available, his account would seem to tilt in favor of his ownership of the so-called “monkey selfie.”  Based on American case law in photography, from the seminal case (Sarony v. Burrow Giles, 1884) to the present, I don’t believe it is farfetched to expect that a court would hold that Slater made enough creative choices in the production of this photograph to affirm his copyright.  But even if I’m wrong about that, it’s not for me or any party other than a court to really decide. As such, I personally would not use the image, even though I can get away with it.

But Wikimedia took it upon themselves to litigate that decision internally and then made the “monkey selfie” freely available to the world via Wikimedia Commons, refusing Slater’s request to have the photo taken down from the site. By the time the “monkey selfie” controversy hit social media, the dominant narrative seemed to be that Ella had randomly stolen Slater’s camera and inadvertently snapped an image of pure happenstance, which does not square with Slater’s own story.  If this were the case, however, then Slater’s claim of copyright in the image would be very weak.

But unless there is some evidence to contradict Slater’s own account of how the image was made, Wikimedia had no grounds, other than its own bully-sized weight, to assert that the photo lacked any copyright whatsoever. According to The Guardian, Techdirt followed in kind, also refusing to take down the photo, and Mike Masnick published a few articles asserting the absence of a copyright in the image as though it were a settled matter.  But it wasn’t a settled matter. Neither Masnick nor the Wikimedia Foundation had any right to declare that Slater’s claim of copyright in the image was invalid, which amounted to these parties—along with every other entity that used the image thanks to Wikimedia—essentially saying, “So, sue me.”

Many who rail against the enforcement of copyright in the digital age, suffer from the delusion that they are always defending the little guy against corporate or state power.  Sometimes, this is true, but not nearly so often as they like to think.  In fact, many self-appointed defenders of “digital rights” trample little guys all the time, and without in any way acknowledging that they’re doing so. The point I want to stress here is that Wikimedia, Masnick, and others were standing on their own notion of principle; and it would not occur to any of these parties to consider a) the standard of “originality” in copyright is subtle; b) there may be more nuance to the author’s claim than they think; or c) when in doubt, some basic respect for the presumptive author of a work might be accorded.

That last thought about respect seems entirely anathema to the opponents of copyright, which is part of what makes this story so egregious. Wikimedia and Masnick were both making a point that served no purpose other than to advance a maximalist (yeah, I said it) anti-copyright view. And society did not benefit from any of this nonsense.  Instead of Slater licensing the photo and using the revenue to pay his bills and then set off on another expedition, he’s now deprived of revenue, and society actually loses whatever photographs he is now not capturing.  “If everybody gave me a pound for every time they used [the photograph], I’d probably have £40m in my pocket. The proceeds from these photographs should have me comfortable now, and I’m not,” says Slater for The Guardian.

Enter PETA

It is at least likely—though we probably can never know—that it was Wikimedia’s initial refusal to consider Slater’s copyright that ultimately brought the “monkey selfie” to the attention of PETA. In a certain sense, this might have been like PETA’s too-good-to-pass-up “Dancing Baby” moment.  A monkey took a selfie, and the story went viral?  How could they not seize such a golden opportunity for anthropomorphic evangelism and fundraising? Of course they had to assert that the monkey owns the copyright.  All they had to do was sue the photographer.  Sure, he might go broke defending himself, but screw him because PETA is opposed to humans “exploiting” animals by taking pictures of them in the first place.  (Spoiler: I don’t have any love for PETA).

Now, don’t get me wrong, I think the humane treatment of animals is important.  But if this organization is going to spend federal-lawsuit money arguing that an animal can own a copyright, this only proves that they neither understand copyright law nor really give a damn about the welfare of the animals themselves. In fact, if they just spent the litigation money on the macaques’ behalf, they’d do more good; but that isn’t what PETA seems to care about. What they seem to care about is evangelizing a maximalist view of animal rights and bringing attention to themselves. David Slater is just collateral damage in their agenda, never mind that he’s the only party in this whole fiasco who has actually done anything positive for this endangered species.

Some of the reporting about this story, like this article in The New Yorker by Jay Caspian Kang, places too much emphasis on button-pushing with regard to copyright in photography.  Even the photograph that affirmed the copyrightability of photographic works in the U.S. in 1884 was not captured by the owner pushing the proverbial button. The standard for consideration begins with the question of who made the creative choices—and this can be quite minimal—to produce the resulting image.  So, without much deliberation, the courts ought to be able to glance at precedent and conclude that unless a monkey, or any other fauna, can minimally express the choices or steps she took to produce the image created, there are no grounds for her owning a copyright.  Unsurprisingly, intellectual property is not available to creatures that have not developed a capacity for communicating complex concepts through language.

Still, as the PETA lawsuit now burns time and money at the Ninth Circuit Court of Appeals, what social interest can anyone say has been served by either the digital rights or the animal rights activists deciding that David Slater is not the owner of this photograph?  Slater is now looking for work other than photography to pay his legal fees; the macaques get nothing out of all this grandstanding; and zero progress is made in copyright law in any useful context.  I guess people can feel free to make Ella-the-Macaque memes on Facebook?  Right, they’ll do that anyway.

Yeah, this whole story is a joke. But it isn’t actually funny.

Is Google Buying Policy Through Academia?

Image by nicholashan

This week, the Wall Street Journal reports that Google has been funding academic research papers worldwide and, unsurprisingly, the conclusions in these papers tend to support Google’s policy interests.  This is familiar territory of course. Most obviously, we remember that Big Tobacco funded all manner of “research” that produced alternative facts about the health hazards of smoking. This is not to say that every author or study implicated in this story represents poor scholarship, or a quid-pro-quo scenario; but the sheer volume alone likely has a considerable effect on policy.

Perhaps the most significant question to consider is this: What happens when the industry that bankrolls self-interested academia happens to be in the information business?  Because not only does Google have the financial resources to fund millions of dollars worth of studies, but they also own the most pervasive platform we use to find information.  So, what are the odds a citizen will yield Google search results linking to news articles that cite Google-funded studies that support Google’s policy views? Maybe a little too likely.

In fact, The WSJ cites a report conducted by the Campaign for Accountability, which identified over 300 papers, published between 2005 and 2017, on the issues of anti-trust, intellectual property, and general regulatory policy. “The 329 Google-funded articles that we identified were cited nearly 6,000 times in more than 4,700 unique articles,” according to the report summary. “Overall, our analysis suggests that Google is using its sponsorship of academic research, not to advance knowledge and understanding, but as an extension of its public relations and influence machine.”

To be sure, the report pulls no punches, calling Google’s capacity to influence policy through academia “pernicious.”  “The number of Google-funded studies tended to spike during moments when its business model came under threat from regulators—or when the company had opportunities to push for regulations on its competitors,” write the authors.  The CFA report further states that the majority of the views in these papers are consistent with Google’s policy interests and that two-thirds of the studies did not disclose that Google had been a source, or the source, of funding.

Of the total number of papers listed, roughly one third (114) address the subject of copyright; and several of the authors—Ammori, Band, Springman, Urban, Lemley, Heald—have been consistently cited by anti-copyright bloggers, organizations, and the mainstream press, in articles promoting the general message that copyright is outdated, broken, draconian, or just plain wrong for the digital age. Still, it would not be fair to many of the authors of these papers to conclude from this report that every name on it is a so-called Google shill.  In fact, that’s exactly the kind of ad hominem generalization employed by the anti-copyright crowd all the time, and it’s not a reasonable response.

This point brings to mind one example of how effective this academic funding can be, and I refer back to March of 2016 and the request for public comments to the USCO regarding possible revision to Section 512 of the DMCA.  In the final weeks leading up to the April 1 deadline, stories broke in both the blogosphere and in the mainstream press with headlines announcing that “30% of all DMCA takedown requests are questionable.”

The source of those headlines was a study (listed among CFA’s 329) from Berkley and Columbia, co-authored by the above-named Jennifer Urban.  In fairness to Urban (who is very nice) and her colleagues, that study did not actually say what the careless reporting claimed it said. As discussed in detail in this post, the study did not support anything close to justifying the provocative 30% headlines that had gone viral. In fact, readers can see that when Urban herself wrote a few very cordial comments in response to that post, she did not really take issue with the overall thesis that the press and bloggers had misrepresented her study’s conclusions.

As a result of that study, though, reporters wrote stories based on the following logic:  the big rights holders send tens of millions of automated takedown notices; this new study says 30% of notices are questionable; the major rights holders must be sending millions of questionable notices; therefore, the major rights holders must be stifling a lot of speech.  Except the report itself doesn’t support that narrative at all, and one cannot accuse its authors of making such a claim—because they absolutely did not.  In fact, notices sent by major rights holders were not even part of that study’s data set.

But this one example of one study did produce some very effective—and innacurate—headlines that were probably rather helpful to Google’s interests leading up to the USCO’s hearings on Section 512. Odds are, most tech and copyright reporters didn’t read the whole report (and certainly didn’t try to unpack it’s findings); so by the time their misleading conclusions became tweets and other blurbs, a biased narrative about the DMCA was being repeated that even the report itself, in some areas, contradicts.

I chose this example specifically to illustrate that authors of a report, even while industry-funded, may still apply reasonable academic rigor and simultaneously produce results that can be very useful to the funding industry—especially when conclusions are taken out of context.  The extent to which the authors of a particular report can be blamed for finding the results their funding industry is looking for can only be considered on a case-by-case basis. Usually, the scholarship, or lack thereof, speaks for itself; but this demands that the people who do the reporting about the reports actually read them and try to understand them.  And in the digital market, ain’t nobody got time for that.

So, ultimately, the smoking gun in this particular story may be one of volume.  The company or industry that can afford to fund a lot of academic studies will invariably yield the most results favorable to its interests. Some will be, as the CFA says, “…little more than thinly veiled opinion articles dressed-up as academic papers, outlining the beliefs of an author on Google’s payroll with little or no supporting evidence.”  But even if all 114 papers mentioned were thoughtfully critical of specific areas of copyright law, and then supported 2,000 half-baked articles that in-turn generated 20 million tweets, it stands to reason that, in this grand game of Telephone we’re playing, the general public winds up getting the gist of exactly what Google wants them to believe.

Castle: Mass NOI Loophole Still Being Exploited

Attorney and blogger Chris Castle continues his reporting on major players like Amazon “innovating” the hell out of a loophole in Section 115 of the Copyright Act.  The filing of Notices of Intent (NOI) was designed for low-volume use but is not be exploited by Big Tech to avoid, or at least defer, paying royalties to songwriters. “Assuming the filing was made correctly, the user can then allege that the user is entitled to all of the benefits of the compulsory license without the obligation to pay royalties until the song owner catches them,” writes Castle.

See full article at Music Tech Policy here.