Cory Doctorow: serious about copyright... Photo by Ed Schipul (CC BY-SA 2.0)

Question: what do you call someone who campaigns for anyone to be allowed to publish a photographer’s work without permission, and then complains when someone publishes his wife’s photographs without permission? Answer: Cory Doctorow.

Our old friends Irony and Schadenfreude had a field day last week when writer and wannabe copyright reformer Doctorow mounted the Boing Boing barricades to rant against “the awful Daily Mail, a hateful right-wing tabloid that keeps finding new bottoms to scrape.”

That’s an interesting image, but what was the reason for his ire? Apparently his wife Alice snapped an anorexic mannequin in Gap and uploaded the image to TwitPic; Doctorow then published the photo at Boing Boing accusing Gap of “death camp chic”. The Mail, ever on the lookout for a good scandal, picked up on the story and called asking to use the image.

Despite their reservations about the Mail the Doctorows, after due consideration of, oh, a few seconds or so, decided the hateful right-wing tabloid could have the snap for a charity donation of £250. The Mail [part of Associated Newspapers, with 2010 operating profits of £42M] countered that was beyond their budget. Then the Mail did what the Mail does, and lifted the photo anyway – along with a few juicy quotes into the bargain.

Unsurprisingly the Doctorows were outraged, hence the Cory vent in which he accused the Mail of “ripping off” the picture, ending with a demand for £2,000 for two infringed images and the vaguely threatening words “updates to come, I’m sure”. But could this be the same Cory Doctorow that has spent most of his adult life campaigning for the weakening of copyright laws? The Doctorow that tours as a poster boy for Creative Commons licenses that allow photographers’ work to be used without permission? The one that “rips off” photographs for his own articles?

Well, er, yes; which is why a few of the responses to his article were less than kind, accusing him of hypocrisy. However the Doctorow fan boys, like Cory usually very much in favour of redistributing photographers’ work without permission, felt his pain and the comments were largely filled with suggestions that the Doctorows should call M’ Learned Friends. Although it would be highly entertaining to watch the Doctorows sue the Mail for copyright infringement that’s sadly not going to happen; or at the very least they’ll have to get in line.

For what the Doctorows overlooked is that in uploading the image to TwitPic they had already given away their image distribution rights long before the Mail came calling. As the rest of the Internet already knows, TwitPic signed a highly contentious deal with the World Entertainment News Network in May that gives WENN distribution rights to any images uploaded to TwitPic, and without any payment to the image owner. So if anyone is going to be suing the Mail it will be WENN, not the Doctorows. Interestingly the story disappeared from the Mail site over the weekend without the Doctorows’ knowledge, so it may be that WENN have already contacted the paper.

The final irony is that only hours after his Mail bitch-fest, Doctorow was busy ripping off photographs himself. On August 16th, the day of Doctorow’s rant, the Guardian ran a story from the Edinburgh Festival with a photograph by Murdo Macleod. And the following day there was a story about the Edinburgh Festival on Boing Boing, filed by Cory Doctorow and with that very same Murdo Macleod image. Doubtless Doctorow took time off from discussing the Mail with his lawyers to ask Macleod’s permission to use the image. If not he will have already calculated what he owes Macleod for “ripping off” the photo: his own going rate of £1,000 per image.

It’s clear that Doctorow, despite his carefully constructed image as a cutting-edge thinker on intellectual property matters, has a lot to learn when it comes to copyright. But last week should have provided a lesson simple enough for even Doctorow to grasp: when it comes to intellectual property and ripping off other people’s photographs, what goes around comes around.

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35 Responses to “Boing!!! Cory Doctorow’s Daily Mail Copyright Clanger”

  1. “Creative Commons licenses that allow photographers’ work to be used without permission?”

    They do no such thing. Creative Commons licenses are a means of granting permission.

    ==

    “The one that “rips off” photographs for his own articles?”

    I do no such thing.

    ==

    “The Doctorows”

    My wife’s surname is Taylor, not Doctorow.

  2. What’s the word that rhymes with cat and starts with a T, ummmmm….

  3. Paul Ellis Paul Ellis says:

    RPB said:

    “The one that “rips off” photographs for his own articles?”

    Cory Doctorow said:

    “I do no such thing.”

    At the foot of this page

    http://boingboing.net/2011/08/17/edinburgh-fringe-show-asks-audience-to-shred-banknotes.html

    is the following text:

    ‘(Image: downsized thumbnail from a photo by Murdo Macleod)’

    Are we to take it from this that Mr. Doctorow believes that the simple technical process of downsizing an image creates a new work that somehow is “from” the original? And that a “thumbnail” is not a copyright work and can be used with impunity?

    Clearly, the image used on that page is larger than a thumbnail in the accepted sense. Furthermore, “thumbnails” are usually used as a means of visually identifying an image’s content. Mr. Doctorow uses this “thumbnail” not in this way, but in the conventional editorial way to illustrate his article. This is in clear breach of the Berne Convention and the CDPA 1988, as confirmed by the Banier Judgement:

    http://www.thelawyer.com/permission-before-you-publish/78733.article

    As I see it, RPB’s statement stands, and in this instance Mr. Doctorow is clearly ripping off this photograph.

  4. Of course I don’t believe it creates a new work. I believe that excerpting a small portion of a work for commentary and reportage, with attribution, is a fair use under 17USC107.

    This view of fair use is supported by established (https://secure.wikimedia.org/wikipedia/en/wiki/Perfect_10,_Inc._v._Google_Inc.) and recent (http://arstechnica.com/tech-policy/news/2011/08/righthaven-rocked-owes-34000-after-fair-use-loss.ars) jurisprudence.

  5. Leslie Burns Leslie Burns says:

    Mr. Doctorow:

    You are completely wrong about the meaning of Perfect 10 and Righthaven and your understanding of Fair Use.

    The first stands for the ability of a search engine to publish thumbnails under the Fair Use doctrine (see also Kelly v Arriba Soft) (NOT any user and certainly not someone illustrating his article with the use of an image) and the second stands for the proposition that only holders of rights beyond an assigned right to sue may in fact have standing to sue.

    17 USC 107 does provide for a Fair Use exception for commentary, but the subject matter of the work must be the subject of the commentary. In other words, if you show a photo, you must be commenting ON that photo–not just using that photo to illustrate your point. Plus, the other three factors must not outweigh such use.

    You have learned via your wife’s photo that you can’t pick and choose about copyright. It’s an imperfect system, as all things legal are, but it’s better than the alternative. You do have to play by the rules, however.

  6. Justin Leighton Justin Leighton says:

    another great artical JN many thanks …

  7. Kai Kai says:

    The author of this article failed to properly (or at all) attribute the image (and also did not fulfill the required inclusion of the license when reused/distributed), used in this article and so violated the CC license the creator holds on the work. It’s also not included under fair use, since the photo itself isn’t the subject.

    So, I guess everybody has ripped off someone else now. It’s nice to have things in common.

  8. Justin Leighton Justin Leighton says:

    Kai

    I’m confused about CC … I’ve only been working with images for 26 years … so is this image CC and what type of CC or is it © or © and CC or CC with a bit of © or mainly © with a bit of CC

    what percentage of this image is what and when and how

    have you read what this CC images is CCed under … could you pls info me

    Yours confused

  9. ManxStef ManxStef says:

    @Justin Leighton –

    This Ars Technica article might be of use to you:
    http://arstechnica.com/tech-policy/news/2011/08/creative-commons-images-and-you.ars

  10. Jeremy admin says:

    Kai,

    The CC license says:
    “Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).”

    The photograph was downloaded from flickr, and as you can see the author has not bothered to specify how, or even if, it should be attributed. Massive fail.

    The CC license also says:
    “For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link to this web page.”

    I broke the link. It’s fixed now.

  11. Justin Leighton Justin Leighton says:

    ManxStef

    many thanks … it looks like that is an interpritation of CC ?… but this is what attibtion says:

    attribution – You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).

    it doesn’t say You must credit the photographer But in a manner specified by the author

    still feeling a bit confused by what it is the Jeremy has done wrong here …

    best wishes JL

  12. Kai Kai says:

    @Justin Leighton

    I can certainly see the maturity of your years shining through.

    The license is “Creative Commons Attribution-Share Alike 2.0 Generic” to be specific.

    Regardless of whether you agree with the license, or the creators choices, or not. This article does to the creator, a real person like any other, with the same rights, exactly the same thing condemned within it.

    I did not post the information, because I agree with Doctorow doing the same on his blog. I posted it, merely to point out how easy (and common) the event/occurrence is. That even articles condemning the one “side”, do the same things themselves.

    It’s easy to try and create a black & white caricature of the situations and people involved. Most do. But, the complexities of the Internet and usage we’ve all become accustomed to, require a bit more of a balanced/practical/mature approach. Not glass houses and stones.

  13. Rob Rob says:

    Oh Cory Doctorow, being the usual complete copyright hypocrite he is to the very bone…

  14. [...] Question: what do you call someone who campaigns for anyone to be allowed to publish a photographer’s work without permission, and then complains when someone publishes his wife’s photographs without permission? Answer: Cory Doctorow. via The Russian Photos Blog. [...]

  15. Kai Kai says:

    @admin

    I’m afraid that’s a misunderstanding then. The license requires attribution. No attribution is contrary to that, the license has still not been fulfilled. Even the token mention of his name, which is clearly there, as it is on all his photographs (Ed Schipul) I’m sure would have been appreciated. I’m afraid that is not a failure on the creators part. (It’s often a tip of the hat to include a link to the piece/their work as a thank you for the free use as well)

    Also, if you were unsure of what was required, or needed, you really should have contacted the creator then. That is the whole point of the article isn’t it? To not take without permission. If you were unsure if you had permission or had correctly fulfilled the terms required, it’s best to check these things, or to simply not use them.

    Regarding the link, I checked the source and there was no link, broken or not, previously. I will trust that, that was simply a strange anomaly. Thank you for fixing it. Though for your awareness, the common way to show it, is to include a link and the text reference (license name) and/or symbols for the specific license. It’s a way to ensure that others are made aware of the options their copyright can take. Effectively, it allows others to have their work/actions supported or enriched, just as yours were in this article.

    I don’t use the license myself, except in very, very rare cases. But, I know a fair number of creators who do. Enough that I ended up researching it, even. I think it’s valuable to still respect them as creators and respect their wishes, even if one doesn’t agree with their general philosophy.

  16. Justin Leighton Justin Leighton says:

    Kai

    you seem like a really nice guy sorry for being flippant …

  17. Kai Kai says:

    @Justin Leighton

    No worries =) Sorry for the passive aggressive one liner in return. I’m kind of used to being in the middle of these things, sadly. When the fair number of CC’ers I know, go out with the fair number of traditional copyright’ers I know, I just try to make sure no one gets stabbed with a broken beer bottle. ;)

    Things always get intense when people’s livelihoods are on the line, it’s pretty natural.

    I’m pretty sure no one here (even Doctorow) wants to see creators struggle even more to put food on the table. Hell, I definitely don’t want less food on mine. And I’m pretty sure no one is intentionally ripping off anyone else. Or trying to stifle creativity. Or the march of society/technology, etc, etc. This subject just seems to naturally get into a chaos of emotions and sides.

    I’m still always hopeful though, that we can all take a step back from our fears and find a solution that suits most, if not everyone. But, I only think we can do that, if we stop fighting each other.

    There’s got to be a way to integrate the technology/future and still keep control (and food) with the creators to the varying degrees they want. We just have to listen to each other and our audience. I’ll eat my camera and Photoshop DVD with hot sauce if there isn’t.

  18. ManxStef ManxStef says:

    You’re still not attributing that photo correctly, as far as I understand it. If you don’t mind the suggestion, here’s how I’d set the caption text:

    Cory Doctorow: serious about copyright. Photo: Ed Schipul / Creative Commons

    (Hope that HTML doesn’t get mangled by WordPress.)

  19. ManxStef ManxStef says:

    Ugh, I should’ve double-checked the Flickr link you posted at A-P-E before pasting it above, it’s the huge image ;) Use this one instead:

    Cory Doctorow: serious about copyright. Photo: Ed Schipul / Creative Commons

  20. Kai Kai says:

    @Justin Leighton

    Just been looking through your work (I assume it’s your work, Top Gear and the like?). Truly great shots.

    You wouldn’t happen to have a book for sale somewhere or could point me in the direction of one that features a lot of your work? Would love to see about picking one up.

  21. I think that’s a rather cramped account of fair use jurisprudence. As both Patry and Samuelson have written, the four factors aren’t exhaustive — they’re judicial guidance. Perfect 10 established that reproduction in connection with commercial purposes aren’t automatically infringing; Righthaven establishes that verbatim reproduction is likewise not presumptively unlawful. Some of the most important fair use rulings in US history fail to satisfy the four factors (Betamax comes to mind, though I know some of the dicta makes a heroic effort to shoehorn the ruling into the four factors, Samuelson’s account of it makes it clear that it does and cannot).

    But as you point out, copyright turns on facts. A use in one context is not the same as a use in another. When NewsCorp solicits permission for a verbatim, full-size reproduction, fails to get that permission, and reproduces anyway without permission or correct attribution, and further implies an endorsement of that use, that is one thing. NI clearly doesn’t believe that it is engaged in fair dealing (otherwise it wouldn’t have sought a license).

    You and I may disagree about whether my use is fair under 17USC, but the facts are not similar or comparable. I did not (and would not) seek a license to reproduce a correctly attributed thumbnail in the course of reportage, because I believe this use to be fair. I am not banking on the creator whose work I’m using being too lazy or intimidated to sue — I am banking on being on the right side of the law.

    The differences between these two situations are substantive and important. It would take an act of deliberate intellectual dishonesty (comparable, I suppose to the dishonesty of characterising CC licenses as tools for making use without permission) to assert that they are the same.

    As to whether a use fails the Berne three steps, that’s not really of any relevance. Berne is not a law, it is a treaty, and it is implemented in national law, such as 17USC. Even stipulating that the use violates Berne (solely for the sake of argument, though I think you’re wrong, see Rimmer) it is not illegal to violate Berne if you do so in a way that complies with 17USC or your other local legislation. Citing Berne in a discussion of law is just silly — you might as well damn someone for failing to comply with the Magna Carta.

  22. Leslie Burns Leslie Burns says:

    You are not stating the holdings of those two cases with any accuracy whatsoever, only regurgitating the spin of anti-copyrightists.

    Btw, it does not matter a whit whether *you* think your use is “fair use”–only what the law says and the law says the four factors, all of them, are to be applied in determining whether a use is permissible under the “fair use” exception. That’s not guidance, that’s case law and is to be followed until a higher court overturns it (not very likely).

    Again, is it a perfect system? Nope. Sometimes one (or more) factor just does not apply and the court does what it can to make it work.

  23. Justin Leighton Justin Leighton says:

    Kai
    thanks …

  24. Justin Leighton Justin Leighton says:

    Magna Carta A system of rules brought in by Norman nobles to stop a King bringing in a system of taxation to fight daft wars and take land by force of arms

    It also brought in Habeas Corpus which we do adhere to this day … So is it daft to comply with Maga Carta ?

    is like the Bern Treaty

    I don’t understand the link Sir apart from it brought in one great Law that we still use and live by

  25. Simon Crofts Simon Crofts says:

    “Berne is not a law, it is a treaty, and it is implemented in national law, such as 17USC. … it is not illegal to violate Berne if you do so in a way that complies with 17USC or your other local legislation.”

    Cory, the suggestion that international law is not actually law would certainly come as news to international lawyers. International law is made up mainly of treaties such as Berne, and national legislation has to be either interpreted in a way that complies with international law – or if the national law doesn’t comply with international law, the national legislation is invalid and has to be set aside. This happens quite regularly. But making the mistake of thinking that ‘international law is irrelevant and doesn’t apply to me’ is just that – a mistake.

  26. Simon Crofts Simon Crofts says:

    Oh, and by the way, while we’re at it – parts of Magna Carta do still have direct effect in English law.

  27. Bill Johnson Bill Johnson says:

    Thank you Leslie Burns, we love you!!!!!!!

  28. Jeremy admin says:

    Cory Doctorow wrote: “copyright turns on facts.”

    A few of those sure would help. In defence of your ripping off a photo from the Guardian you’ve quoted US law and court rulings. Leaving aside Leslie Burns’ demolition of your amateur legal opinions, I’m eager to know why you’re quoting US law at all. The Guardian is a UK newspaper. The photographer whose work you heisted is a UK citizen. I understand you yourself hold dual Canadian/UK nationality. You lifted the image from the Guardian while in the UK. You then uploaded it to the Boing Boing website, which is registered in Canada. Last time I looked both the UK & Canada were sovereign nations with their own laws and legal systems. So why do you believe US law has any bearing whatsoever in this matter?

    Additionally, referring to your issue with the Daily Mail, you write of NewsCorp & News International soliciting use of your wife’s photo, then using it without permission. But there is no connection whatsoever between the Daily Mail, and NewsCorp & NI: the Daily Mail is part of Associated Newspapers and owned by the Daily Mail & General Trust. Apart from the fact that I mentioned this in the article, I would have thought you’d already be aware of it as someone who writes regularly for another UK national paper, the Guardian.

    In summary, you seem unaware of which country’s laws apply in the UK & Canada, and you don’t know which publishing corporation you have a copyright dispute with. Aside from these your facts appear correct.

  29. martyn martyn says:

    i once tried to photograph a mannequin in Gap and got thrown out, i take it (mrs ?) Taylor got authorisation to take the snap in the first place ?

  30. Ed Schipul Ed Schipul says:

    Thank you for properly attributing my CC by SA licensed photo of Cory Doctorow. I don’t follow all of the legal arguments from the commenters. I simply want to say that the license I specifically assigned to the photograph on flickr was not an error and that Jeremy Nicholl, who I do not know, has used it fully within the rights of the license. In addition it is linked which is not required, but appreciated. I’ll let the lawyers continue the rest of the debate… #peace

  31. [...] Highly Commended: Siegfried Kauder, for Double Strike. Highly Commended: Cory Doctorow, for Boing!!! Cory Doctorow’s Daily Mail Copyright Clanger. Winner: Bob Dylan & Richard Prince, for Everybody Else’s Images Revisited. Photo by Ed [...]

  32. [...] Schramm won’t be the first activist to discover, quite unexpectedly, that copyright protection has its uses. [...]

  33. Sam Watkins Sam Watkins says:

    1. A giant profit-making newspaper asks permission to use Ms. Taylor’s photo, refuses the asking price, then goes ahead and uses it anyway. Do they steal their articles also?

    2. Mr. Doctorow uses reduced photos from the web on his blog, with attribution. I suppose he would remove them on request. Big deal.

    See any differences here? It’s just the same, is it?

    In my opinion, Cory is worth at least ten of whoever wrote this article.
    Who elected you to be the hypocrite police?

  34. [...] Cory Doctorow’s Daily Mail Copyright Clanger; at The Russian Photos Blog [...]

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