Peter Black's Freedom to Differ

Privacy by geography

TechCrunch's Michael Arrington reports on a fascinating project looking at privacy settings on Flickr:

This picture was presented by Elizabeth Churchill, Principal Research Scientist at Yahoo at a meeting I am attending today. It shows the privacy settings of a sample of a million Flickr users from 2005. Red spots note users who have photo sharing turned off (private), green shows users who have photo sharing turned on (public).

The results are fascinating. The US is widely public except for users who seem to be hovering around Utah, and varies by state. Europe, by contrast, is largely private, and more so as you move north. The Middle East is wide open. South East Asia is mixed. India is private.

Read it here.

Here Comes Another Bubble: the fallout continues

An interesting and reflective post on copyright law at TechCrunch reports that the controversy over the Here Comes Another Bubble song and video is not over yet (for background, see earlier posts here, here and here):

The furor surrounding the now infamous Bubble video is not over. To recap: the parody video was watched more than one million times on YouTube, then taken down because photographer Lane Hartwell objected to the unauthorized use of one of her photos in the video, then put up again with the offending photo replaced and a list of credits at the end for all the images used. 

Now, more photographers whose images are included in the video are raising objections including Ramona Rosales, whose picture of TechCrunch’s Michael Arrington (taken originally for my alma mater magazine, Business 2.0, see above) is featured.  Echoing Hartwell, Rosales tells professional photography blog PDNPulse: “I’m totally against the unauthorized use of my image. I was never asked permission nor have I received any compensation for it’s use; . . . I will be contacting the Richter Scales today to remove my image.”

What we have here is a major disconnect between the norms of the offline world and the emerging norms of the Internet. Both the law and industry standards are trailing what is a major transformation in how people use other people’s words, music, and images in the Web’s culture of participation. Putting your photos up on Flickr (which Lane Hartwell did) and then acting surprised when someone uses them is like leaving your car in downtown Newark with the keys inside and acting surprised when it is, um, appropriated. The law may (or may not) be on Hartwell’s side (see below), but that is not the point. The law is outdated.

Read more here.

More on that bursting bubble

Wired explains why Lane Hartwell popped the Here Comes Another Bubble video (for background see here and here):

When one of Lane Hartwell's photographs showed up without her permission in a popular viral video, she wasn't flattered. She was frustrated.

Hartwell's frustration quickly morphed into action. She contacted the Richter Scales, the San Francisco-based choral group that made the video, "Here Comes Another Bubble." Then she made a copyright claim and got the clever clip pulled from YouTube, where it had been viewed hundreds of thousands of times. Finally, she switched her Flickr account to private, pulling most of her 5,000 images out of public view.

"I wasn't upset by the video itself," Hartwell said, but the brief flash of her photograph -- without compensation or credit -- still rankled. "I thought, 'Where does somebody just get the right to take this?'"

...

For Hartwell, who says she has had images used without her permission over and over again, the run-in with the Richter Scales was the last straw.

"It is stealing," Hartwell said of the unauthorized use of her photo in the video. "I'm not a charity.... This is my living."

Read more here.

Update: Matthew Ingram explains why Lane Hartwell is wrong:

Based on the most recent rulings on the issue, the courts look at four things when they consider copyright infringement and fair use: 1) the “purpose and character” of the infringing material; 2) the nature of the copied material 3) how much of the original work was used and 4) whether the infringement might affect the market for the work. I think it’s pretty obvious that Ms. Hartwell’s claim fails all of these tests.

The Richter Scales video was parody satire — an artistic work of commentary. So it’s covered. The photo was previously published in Wired, so the video is covered. Ms. Hartwell’s shot is on screen for less than a second. Covered. And no reasonable person would conclude that the video would damage the market for her work. Her attitude might, however. Based on her post about why she took her photos off Flickr, I wouldn’t hire her.

In any case, I think Ms. Hartwell needs to remember one thing: copyright law wasn’t designed to give artists or content creators a blunt instrument with which to bash anyone and everyone who uses their work in any form, for any reason. The copyright owner’s views do not trump everything, and never have. A split second view of your photo in a parody video doesn’t — or at least shouldn’t — qualify as infringing use. Period.

Read more here.

Flickr and Creative Commons

Dylan Tweney looks at one tension between Flickr and Creative Commons:

Yahoo's photo-sharing site, Flickr, has been an early and enthusiastic supporter of Creative Commons licenses. But there's one aspect of the licenses that Flickr doesn't respect: Users can remove the Creative Commons designation from their photos -- even though that may violate the terms of the license.

...

Flickr currently hosts more than 50 million images under CC licensing.

A Yahoo spokesperson says the company does not keep track of the changes to CC attributions on particular photos, and advises people who want to use CC-licensed images to keep records of their own, for instance by taking a screenshot of the originating Flickr page.

For its part, Creative Commons also advises licensees to keep records and recommends using services that take snapshots of web content for archival purposes -- such as the Internet Archive's Wayback Machine or WebCite -- to record Flickr pages' CC licenses.

Read more here (from Wired).

2 billion photos on Flickr

This is the two billionth photo posted to Flickr:

It was taken in front of Market City in Chinatown Haymarket in Sydney by yukesmooks with a Canon EOS Digital Rebel XTi.

(Hat tip: TechCrunch, who notes by way of comparison that Facebook has 4.1 billion photos on their site.)

Flickr to add video

TechCrunch reports that Flickr will be adding video:

In May Flickr cofounder Stewart Butterfield casually mentioned to me that they would be allowing users to upload video "soon" (see last sentence in this post). Yesterday Yahoo Video GM Mike Folgner reconfirmed this: "Yahoo’s Flickr photo-sharing site will also be adding video," he said.

It was another throw away statement that was part of a larger article on Yahoo revamping its video site to be more competitive with YouTube. But frankly it was the only interesting thing he said. Playing catch up sucks, and that’s the position that Yahoo Video is in right now. They’ll have to work twice as hard as YouTube and are unlikely to get the return they are looking for.

But Flickr needs video. Too often I return from a trip, upload pictures to Flickr and then just store the videos on my hard drive. I want those videos right next to the photos, with the same tags and in the same sets (albums). They should have added this two years ago…and I’ll be glad to see it later this year.

Read more here.

10 most beautiful social networks

Sick of how ugly MySpace is?  Well, Mashable helpfully made a list of the ten most beautiful social networks, including Virb, Trig, Pownce and Humble Voice.  Not that familiar with some of these?  Again, Mashable explains it all here.  Interestingly Facebook doesn't make the list - there is no doubt that it has lost a lot of its sleek, clean feel with the recent Applications explosion.

Photographing the Sydney Opera House

Question: does the law allow you take a photograph of the Sydney Opera House and then sell that photograph to someone else?

Answer: maybe, maybe not ... depends on who you ask and who you listen to ...

Let me explain ...

During the week I was sent a link to WebMink, a blog run by Simon Phipps, where he writes about this dilemma:

Opera House, Dawn; Copyright policy, Night-time

If you're a regular reader, you may be aware that I sell some of my photographs for commercial use over on iStockPhoto. It's earns pennies, but I like the thought of actually heading in the direction of my aspirations.

Anyway, I think this photo of Sydney Opera House is quite good, so I submitted it to iStockPhoto. I've recently received a rejection from them on the grounds that it would be a breach of Australian copyright law to sell this image. When you consider that I can stand in public places throughout Sydney and take photographs that include the Opera House, this restriction seems pretty ridiculous.

Read it here.  In the comments section following this post there is a letter from the Corporate Counsel of the Sydney Opera House (SOH), explaining that the Sydney Opera House Trust "vigorously protects the commercial exploitation of its intellectual property and does not approve use of the SOH brand in commercial contexts where there is no association between the relevant business and SOH":

Dear Simon

Thank you for your inquiry dated 28 May 2007 regarding regarding publishing of Sydney Opera House (SOH) images on the image library, iStockphoto. We understand that iStockphoto operates an image library where members publish their photos which are then licensed to third parties on a royalty-free basis. We welcome visitors to the Sydney Opera House precinct to photograph, film or video images for personal use only.

By publishing photos of SOH on a stock library, such as iStockphoto, this would be commercial use of the SOH brand (Commercial Use) and the use of our brand is something that we take very seriously. Where photographs of SOH are sold or licensed by you to third parties from iStockphoto for advertising, marketing purposes and other commercial purposes, that would also be making Commercial Use of the SOH brand.

Importance of SOH brand to Sydney Opera House
The SOH brand is a very powerful brand and is well recognised all around the world. This means that the brand is one of the most important assets of the Sydney Opera House Trust. The Sydney Opera House Trust manages the use of Sydney Opera House’s image and brand on behalf of the New South Wales Government. The Trust vigorously protects the commercial exploitation of its intellectual property and does not approve use of the SOH brand in commercial contexts where there is no association between the relevant business and SOH.

The Trust does this for two reasons - first - to protect the integrity of the brand and second, to protect its commercial value. As a non-profit arts organisation, the Trust is heavily reliant on sponsorships to support its operations and it offers brand association to sponsors of a certain value. In all cases however a sponsor is only permitted to link its product with the SOH brand in a manner that is approved by SOH and which aligns with SOH brand values.

We hope that you can appreciate that our image and exclusivity are our most valuable assets commercially, so it is important that we protect them for ourselves and our valued sponsors.

Commercial Use of SOH images
Where you do not have any association with SOH at all, the Commercial Use of SOH images by you may suggest that there is a connection or association between you and SOH, where in fact there may be none. We would also object to your licensing or selling SOH images to third parties as their Commercial Use of the images would suggest those third parties have an association with SOH, or have been authorised by SOH to use depictions of the Sydney Opera House in promoting them and/or their products or services - which may not be true. The Australian Trade Practices Act 1974 (Cth) prohibits conduct which is misleading or deceptive in this regard.

Intellectual property rights of Sydney Opera House
SOH owns copyright in a large number of images of SOH (or has negotiated permission to use those images from their owners). Some examples can be found on our image bank at http://www.sydneyoperahouse.com/sections/media_room/image_bank/?sm=5&ss=22. These images of SOH may be used by the media but not for advertising or other commercial uses.

SOH also maintains trade mark protection for a large number of trade marks including representations of SOH. Therefore, commercial use of certain images of SOH may infringe SOH's registered trade marks.

Reasons for removal of your image
We understand that some stock libraries remove infringing images posted by their members, often generating an email (often automated) which lists copyright infringement as the issue. Where your stock library removes SOH images and notifies its members of the reasons for their removal, we would prefer that those reasons refer to our intellectual property rights generally (as outlined above) - rather than just copyright infringement (which does not convey the range of intellectual property rights and other protection SOH relies on). However we understand that this is an issue for your stock library to amend. In this regard, we will contact your stock library to inform them of the above.

Thank you for your inquiry and we hope the above information answers your question. 

Regards

CAROLINE ANG
CORPORATE COUNSEL
SYDNEY OPERA HOUSE

Again, you can read it here.  The SOH seems to be relying on their vague "intellectual property rights generally" rather than just copyright infringement.  Presumably this is because Australian copyright law is clear; it is not an infringement of Australian copyright law to take a photograph of a building.  See s 66 of the Copyright Act 1968 (Cth):

The copyright in a building or a model of a building is not infringed by the making of a painting, drawing, engraving or photograph of the building or model or by the inclusion of the building or model in a cinematograph film or in a television broadcast.

Further, there is nothing in the Copyright Act that would make profiting from that photograph unlawful. 

So, as it not a breach of Australian copyright law, it is necessary consider the other arguments advanced by the SOH in that letter. 

First, the SOH argues that the law prohibits the commercial use of an image of the Sydney Opera House.  In particular, the SOH suggests that such commercial use would contravene the Trade Practices Act 1974 (Cth).  Section 52 of the Trade Practices Act provides:

(1)  A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2)  Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1).

No definition of "misleading" or "deceptive" is given in the Act, so the meaning of those terms has been developed through case law.  Generally, conduct is misleading or deceptive if it "leads into error" or is likely to do so.   (For a good summary of the case law, see Equity Access Pty Ltd v Westpac Banking Corp (1989) 16 IPR 431 at 440-441 per Hill J.)  The argument advanced by the SOG appears to be that the commercial use of an image of the SOH would suggest that Simon Phipps and/or iStockphoto has an association with SOH, or has been "authorised by SOH to use depictions of the Sydney Opera House in promoting them and/or their products or services".  In my opinion, this is a very tenuous assertion and the SOH would struggle to establish that a third party taking a photograph and then selling that photograph would give rise to such an association as I don't believe that it would be a commonly held assumption that you would need the permission of the SOH to take a photograph of the SOH.  Furthermore, I think a similar conclusion would be reached under s 53(c)&(d) of the Trade Practices Act or the tort of passing off.

Second, the SOH argues that the "commercial use of certain images of SOH may infringe SOH's registered trade marks".  Again, using a photograph of the SOH is highly unlikely to cause confusion that that photograph was sponsored by the SOH. (See ss 43 and 120 of the Trade Marks Act 1995 (Cth).)

Basically, both the Trade Practices Act argument and the trademark argument depend upon the assumption that the commercial use of an image of the SOH connotes a connection, sponsorship or endorsement to or from the SOH.  I don't believe that assumption could be established in court.  Indeed, according to a recent article in The Australian newspaper, looking at whether Telstra could use images of Uluru and the SOH as part of its Second Life island, this argument has apparently never been tested in court:

Telstra hit over virtual Uluru

Simon Canning
May 24, 2007

TELSTRA is being investigated by Uluru's administrators and the Sydney Opera House Trust after cashing in on the images of Australia's two most famous landmarks as part of its massive investment in the online world Second Life.

Telstra's move is focusing legal minds on the commercial use of images in the booming area of virtual worlds, with thousands of Australians visiting Telstra's virtual "island" - known as The Pond - each day.

And now tribal elders are also wrestling with the implications of the sacred sites being used for commercial purposes online as significant questions begin to emerge about famous landmarks such as the Opera House, Sydney Harbour Bridge and Uluru being used in websites and games.

The Sydney Opera House has also revealed it is investigating commercial exploitation on the Telstra site.

...

The Sydney Opera House Trust also keeps a tight rein on the commercial exploitation of images of the building, which is one of the most recognised in the world.

"We are looking into the use of the Opera House image on that website at the moment and that's all we have to say," an Opera House spokesman said.

"It's very new to us."

Tony Anisimoff, a partner at commercial and intellectual property law firm Anisimoff Davenport Solicitors, which specialises in marketing and advertising issues, said the whole issue of recreating iconic buildings and sacred sites in commercial websites and games was a grey and untested area.

Mr Anisimoff said that in general copyright only protected blueprints and not the buildings themselves.

"The law does not recognise any such thing," he said.

"I know the Sydney Opera House Trust does occasionally object to the use of the Opera House and puts forward an argument that it's such an iconic commercial building that its use in a certain context implies an association, a sponsorship or an endorsement. But that sort of argument has never been run in court."

Read the full article here.  As I've outlined above, I think that that sort of argument is likely to fail.  However, it is interesting to note the different legal position between Uluru and the SOH.  The taking of photographs of Uluru for commercial purposes is regulated by the Environment Protection and Biodiversity Conservation Regulation 2000 (Cth). 
To take photographs in a Commonwealth reserve for commercial purposes, a photographer needs to:

• Contact the Commonwealth reserve and obtain a permit to take photographs for commercial purposes by paying the specified fee and entering into a Location Agreement; and
• Abide by the conditions imposed upon commercial photographers in the reserve by the Director.

If a photographer breaches a Location Agreement (or does not enter into one), a ranger or warden may require
him or her to hand over all copies of any photographs taken and any camera or other device used to take them.  (For more information, see the Australian Copyright Council Information Sheet G11.)

If the SOH wanted similar protection, it could lobby the Federal or New South Wales Government to introduce legislation or regulation that would prohibit the taking of photographs of the SOH for commercial use, except as authorised by the SOH.  Interestingly, there is already a NSW regulation that prohibits the use of any "camera (whether photographic, cinematic or video), for a commercial purpose" in a public area of the Sydney Harbour Foreshore, except as authorised by the Sydney Harbour Foreshore Authority.  (See Reg 4(d) of the Sydney Harbour Foreshore Authority Regulation 2006 (NSW).)  However, as the SOH is not part of the "Sydney Harbour Foreshore" as defined in the Sydney Harbour Foreshore Authority Act 1998 (NSW), this regulation does not apply to the SOH. 

In conclusion, it seems to me that the letter from the Corporate Counsel from the SOH is largely legal bluster and bravado.  Selling the photo to iStockphoto would not infringe Australian copyright law, and it is highly unlikely (although admittedly it has not been tested) to infringe either the Trade Practices Act or the Trade Marks Act.  It is worth noting, however, that the SOH could in the future seek from government legislation or regulation that would restrict the commercial use of images of the SOH.

Yahoo to buy Bebo?

Mashable reports on a rumour that Yahoo is considering buying Bebo:

A huge rumor is floating around the UK this weekend, topped off with articles in the British Sunday papers: Yahoo is said to be in talks with Bebo about a $1 billion acquisition.

The site, launched in 2005, has been the source of many acquisition rumors - most notably with Viacom - but this one has the strongest signal, having been picked up by the mainstream press. Incidentally, Viacom has also shown interest in buying Last.fm, another success in the UK (see Viacom-Last.fm).

If it goes ahead, the acquisition would be almost twice the size of News Corp’s $580m MySpace buy, but cheap compared to Facebook, for which Yahoo was prepared to pay $1.6 billion at one point (Facebook is now worth much more). Bebo has around 25 million users, and founder Michael Birch has previously said that he’d like to keep the site independent - a Bebo IPO may even be possible.

Why would Yahoo buy Bebo? Possibly because without MySpace, Facebook or YouTube, they don’t have a major stake in the social networking realm. Flickr is fairly big, and they have lots of smaller social sites, but nothing generic that lets them integrate all their other services.

Read more here.

Inside video and image search

Media Post's Search Insider looks at how Facebook, Riya and PodZinger are "are stepping up their efforts to allow people to tag and find images and videos online".  Read about it here.

CC Swag Photo Contest

Last Wednesday Creative Commons launched the first CC Swag Photo Contest on Flickr to promote their Annual Fundraising Campaign.  Learn more here.