So, AFP, how’s that “steal the photos & sue the photographer” business plan working out then?
Three years almost to the day since photo agency AFP heisted Haitian photographer Daniel Morel’s award-winning photographs of the 2010 earthquake the first court decision has been handed down in what has evolved into a high-profile and significant copyright case. In a humiliating ruling against the agency, a New York court has upheld Morel’s claim for copyright infringement against AFP. The agency had initially attempted to sue the photographer when he objected to their theft of his images from Twitpic, where he had uploaded them and linked to his Twitter account in an attempt to market his work.
This isn’t the end of the affair though, just the beginning of the end. For one thing, there’s the matter of the bill AFP will face. Morel’s claim against AFP calculated damages based on treating each download of any of his images by an AFP client as a separate infringement. This resulted in a figure so huge that nobody seemed quite sure what it was, but it certainly totaled upwards of 100 million dollars. The judge however threw this calculation out, stating that the law only allowed for one infringement per image, not for each use of that image. But although the court has now set the rules on how the damages should be assessed it declined to make an actual assessment, leaving that for a jury to later decide.
Morel uploaded 13 images, of which 8 were infringed, and the maximum allowed per image is $150,000. There’s also the matter of AFP’s falsification of Morel’s copyright information, which allows for up to a further $25,000 in damages per image. So the maximum the jury can award against AFP is $1,400,000. For their part AFP previously asked in a court memorandum that if found guilty they should pay only $240,000. Whether that memorandum will even apply when the matter comes before the jury is unclear; what is now clear is that AFP’s final bill will be somewhere between a quarter of a million and one and a half million dollars, plus substantial legal costs.
Exactly how much will be decided by the jury, who will decide partly on the evidence of willfulness in the AFP infringements; but since courtrooms are theatre they will also be swayed by the performances of the lawyers and witnesses. So far the AFP legal team’s performance has not been Oscar material: while outside court they have declared “we shall prevail”, inside they have at times been mocked by the judge. There’s plenty of evidence of willfulness in AFP internal memos that have already come to light, but it’s the agency’s director of photography for North and South America Vincent Amalvy who is likely to deliver the killer blow. In addition to his involvement in the Morel fiasco Amalvy was also caught stealing other Haitian images, and has already admitted that when it comes to breaking news AFP toss out the copyright rulebook. Such behaviour is unlikely to play well with the jury, so while the eventual award may not reach the maximum allowable, bet on it getting into six figures.
But the real final total for the Haitian infringements will almost certainly be more, possibly much more. For although AFP and Getty are the headline defendants in the case, their distribution of the images led to many further infringements by end users such as Time, CNN and many others. These have already been settled out of court for undisclosed sums. And the AFP ruling doesn’t include co-defendants Getty Images: that will be addressed by a jury trial, and should Getty lose the result will be further substantial damages awarded to Morel.
A press release from Morel’s lawyers the Hoffman Law Firm following the AFP ruling both addressed the issue of damages and hinted at the fate that may befall Getty:
“Although Judge Nathan rejected Morel’s legal theory entitling him to as much as one hundred twenty million dollars in statutory damages, Morel still hopes to win millions in damages following the trial. The ruling and the case may have implications for users of social media as well as ‘service providers’.”
That leads directly to the issue of AFP’s partner and co-defendant Getty Images. The court didn’t rule on Getty’s culpability, leaving that decision to a further jury trial, since Getty eventually entered a different defence from AFP. That defence is, to say the least, interesting, since it essentially hinges on Getty throwing their partner under a bus:
“Getty Images requires and relies on the representations AFP makes about its content in the License Agreement. It could not possibly investigate whether the hundreds of thousands of images that AFP transmits to Getty Images’ database every year infringe other parties’ copyrights, without altering its business model, incurring massive expense.”
The law Getty are relying on to back that statement up is the Digital Millennium Copyright Act, specifically the clause that absolves internet service providers from guilt when infringing material is uploaded to their servers by a third party: this is commonly referred to as the safe harbour or Youtube clause.
At first sight that looks like a viable defence: the DMCA is quite specific in its requirements and Getty appear to have been careful comply with at least some of them. But there are at least two potentially fatal flaws in Getty’s strategy. For one, the DMCA is specifically intended to protect an internet service provider from the legal consequences of copyright infringement on their servers initiated by a party over whom they have no control: Youtube should not be held responsible for the behaviour of a teenager uploading pop videos is the rationale. But such a comparison is obviously absurd: Getty and AFP are major media companies who have entered into a legal agreement to syndicate images for big money, not teens sharing ripped vids.
Secondly, the DMCA only protects a provider when the entire process of the infringement is automated. Getty are stressing the automated nature of both the AFP feed and Getty’s own distribution system. However this argument is undermined by evidence that Getty staff manually altered metadata attached to the Morel images, and that agency staff licensed some of the images in telephone sales.
And the biggest problem for Getty is that they are relying completely on the DMCA to get them off the hook: they have no other options left. So in the end Getty’s reliance on the DMCA may prove to be a sign of desperation rather than clever legal maneuvering.
Away from the courtroom there’s also a comic sub-plot to be resolved, starring various figures who either absolved AFP of blame or actively defended the agency’s actions. Aside from the usual freetard nutters these included the National Press Photographer Association’s Mickey Osterreicher, photo blogger John Harrington and Visa Pour L’Image’s J-F Leroy.
Osterreicher – who’s only a lawyer after all – managed to read the wrong company Terms of Service, quoting those of Twitter when the ones that mattered were those of Twitpic. Harrington, who posits himself as a business expert, got the company right but the date wrong, relying on ToS that Twitpic had introduced after and in response to the AFP theft: that led him to proclaim “AFP did the right thing”. And Leroy was especially vociferous in his defence of the accused, a stance that most observers concluded was entirely unconnected with the agencies’ close association with, and sponsorship of, his Perpignan photo festival.
Curiously, some of these carefully considered expert opinions have now mysteriously disappeared. In the wake of AFP’s crushing defeat it would be interesting to hear what Osterreicher, Harrington and Leroy have to say for themselves now. Instead expect only the sound of web pages being deleted.
“Make sure the internet never loses. Ever.” Last week saw the launch of the Internet Defense League, a self-appointed “loose coalition that shares a commitment to defending the Internet.” In a spot of ambush marketing timed to coincide with the release of The Dark Knight Rises, and boasting their very own cat signal, the IDL issued a nerdy call to arms:
“The Internet Blackout was just the beginning. Together, our websites and personal networks can mobilize the planet to defend the internet from bad laws & monopolies. Are you in?”
It’s hard not to point and laugh at a group whose world-view is defined by comic books and one of whose supporters was so excited by the news that they couldn’t tell their cats from their bats. As copyright attorney Leslie Burns commented on twitter: “OMG… When they get out of their parents’ basements, I’ll take the IDL seriously.”
But dismissing the IDL as a bunch of juvenile jokers is a mistake. In fact many of them promote such an image as part of their marketing schtick: follow the money and a rather different picture emerges. One of the prime movers behind the IDL is social news site Reddit. Far from being just a bit batty, Reddit is a subsidiary of Advance Publications Inc, the multibillion dollar media empire privately owned by the Newhouse family, a publishing dynasty that makes the Murdoch clan look like new kids on the block. Well, how about another IDL founder, the Cheezburger Network? Surely the inventors of Lolcats fit the bill of kiddy nerds fooling around in their parents’ basement? Not quite: in the last few years Cheezburger, under CEO Ben Huh, has trousered $32 million in venture capital. Music-sharing site Grooveshark is one of the IDL’s less-wealthy founders: a mere $4.5 million in recent funding. The Open Technology Institute is a project from the New America Foundation, which boasts an impressive list of well-off sponsors including contributions of over $1 million a head from the Bill & Melinda Gates Foundation and Eric & Wendy Schmidt of Google fame.
The list goes on and the true picture is clear: most of the IDL founders are full or aspiring members of the Internet Fat Cat League. And just as the IDL’s hipster image is misleading, so are their stated aims. The IDL claim they aim to “mobilize the planet to defend the internet from bad laws”: expect this to be dressed up in much high-minded talk of free speech and scary guff about legislation that will “break the internet”.
However the only laws that interest the IDL are those relating to intellectual property, and with good reason: the IDL’s movers are not so much interested in free speech as free content. The genesis of the IDL was the so-called Internet Blackout of January 18, when many sites, including some of the IDL founders, went off-line in protest at the USA’s proposed Stop Online Piracy Act. SOPA was portrayed by protesters as an attempt at Internet censorship, but the real threat was to the business model of sites that rely on the so-called safe harbour provisions of the Digital Millennium Copyright Act to protect them against legal action for copyright infringement. Sites like… Cheezburger, Grooveshark and many other IDL founders.
When these corporations – for that’s what they are – rant against legislation in the name of free speech it’s merely a smokescreen: all they’re really doing is acting to protect their business interests. It’s hard to raise a torches and pitchforks mob with a cry of “defend my venture capital”, but “defend the Internet” will do the trick every time. SOPA was shelved, at least in part because the protesters comprehensively won the propaganda war, successfully portraying the bill’s supporters as greedy corporations out to – you guessed – break the Internet. And so, buoyed with success and wary of a future SOPA, the IDL was born.
As it happens, there’s a very good analogy for the many of the IDL’s founders, but it’s not kids in basements. Like the spivs of the banking industry, the freetards at Cheezburger et al have developed business models based on theft. Both the spivs and the freetards display an overwhelming sense of entitlement. And when faced with legislation both groups raise the same battle cry: “You don’t understand how these things work, regulation will break the system.”
Since most legislators understand little about the workings of either the Internet or the financial markets it’s not surprising that such a strategy is successful. No politician wants to be accused of supporting laws that wreck either the financial markets or that new-fangled interweb thingy. So if SOPA or similar does return, expect it to be accompanied by large helpings of very well-funded FUD from the IDL. Perhaps they should replace that cat on their signal with a dollar sign.
You’d think there’s enough evidence by now that stealing other people’s images is only for the truly dumb. Whether it’s one of the world’s largest news agencies facing a $123M copyright suit, a hipster freetard heisting a veteran photographer’s best-known image, or a British Labour government sabotaging their own election campaign, the sad and expensive results of photo theft are there for all to see.
But no, you just can’t help some people: and so last week two master copyright crooks simultaneously did an excellent job of proving Einstein’s First Theory of Stupidity.
In Arkansas USA wedding photographer and “lover of Jesus” Meagan Kunert had a nice little business going: or at least she did until Canadian wedding photographer Amber Hughes discovered her work on Kunert’s website. Hughes hit twitter, and soon other photographers were reporting that they too had been ripped off by Kunert. The story was picked up by David “Strobist” Hobby’s 65,000 followers, and within hours #fauxtographer was trending and an angry mob with torches and pitchforks were laying siege to every Internet property associated with Kunert, who promptly packed her bags and got out of cyberspace.
Her twitter feed was first to go, rapidly followed by her website, probably sunk under the weight of DMCA takedown notices. Kunert attempted a last stand at Facebook; after pulling her page for few hours she took a revivalist approach, relaunching it with the kind of apology associated with southern preachers who’ve been caught evangelising away from home:
“I hate that I have tarnished the name of Jesus in doing this, and I have got some serious soul searching to do over the coming days, weeks, and months. I know that God does not approve of my choices and that he hates hypocrites such as myself. I also know that God can take my brokenness and turn it around for His glory, which is what I intend to do. If you are the praying folk, I would like to ask you to pay [sic] for me and my family.”
But the Internet is not the deep south and the congregation at Facebook turned out not to be the praying kind: hundreds of comments later it was Kunert who had to pay, as her Facebook page disappeared again, this time probably for good.
Across the pond, just as the Internet was preparing the last rites for Kunert’s business, VoucherDigg set about digging their own grave. One of a myriad of UK companies offering vouchers for package holidays, VoucherDigg was advertising a cheap deal in Portugal from Low Cost Holidays. Naturally they wanted an appropriate image: it had to be from Portugal, and preferably close to the resort they were offering. Ideally it would also need to appeal to families with young children.
And so with impeccable logic VoucherDigg stole the last known photograph of Madeleine McCann, the three year old girl who five years ago disappeared only 25 miles from the holiday resort they were advertising, and the subject of one of the biggest UK and Portuguese news stories of recent times. What could possibly go wrong?
Retribution was public, swift and relentless. The story of VoucherDigg’s use of the McCann photo was rapidly plastered across the world’s media and Low Cost Holidays immediately disowned them. Worse, M’Learned Friends at the world’s scariest law firm announced that they would be handling the matter for the distraught parents. Within a day VoucherDigg shared Kunert’s fate. First their website groaned under the weight of traffic they had probably always dreamed of; then it disappeared as they discovered the reason for their newfound popularity. Finally the site, registered at the University of East Anglia campus in Norwich – presumably at the English As A Foreign Language Department – was replaced by a grovelling apology:
“We were sorry!
Our editing team made the mistake, that Madeleine McCann’s image was linked to the discount holidays to Portugal. We are sorry for the serious wrongdoing that occurred. We unreservedly apologise for the hurt suffered by Mr. and Mrs. McCann.
We regret our not acting faster to sort things out because of our editing team and management overseas not being concerned about the British social news and not realizing the wrongdoing. We realise that this explanation and simply apologising are not enough, because the hurt and damage are irretrievable. In the coming days, we shut down voucherdigg.co.uk to show our sincere apology.
We deeply apologies to Mr. and Mrs. McCann. We deeply apologies to the society. We also apologies to the lowcostholidays for the negative brand affect, who has nothing to do with this issue.”
There are a few lessons in all this for image thieves. For one, Jesus won’t save you: your business is going straight to hell. For another, brush up on your language skills so you can at least produce the literate apology you’re inevitably going to need. But most important of all, join the Meagan Kunert Bible Study Group Inc™ and brush up on your knowledge of the Eighth Commandment: because if you ignore that one the Internet will kick your ass.
The headline is hardly a revelation: it’s been obvious for a long time that AFP’s theft and distribution of Daniel Morel’s award-winning Haiti earthquake photos would cost the agency dear. But the voice is a surprise: it belongs to AFP deputy photo editor Eve Hambach, writing in an internal agency email in March 2010.
The Hambach email is contained in opposing memoranda at law from lawyers representing Morel, AFP, Getty Images and the Washington post seeking summary judgement in the two-year-old copyright infringement dispute.
The basic facts of the dispute have been well documented and the memoranda, running to hundreds of pages, broadly confirm the previously published timeline of events. However investigations by the Morel team have unearthed far greater detail than before, and their documents paint a damning picture of AFP and Getty’s joint activities, described as “essentially a business model gone wild “. Among the most damaging claims:
- AFP director of photography for North and South America Vincent Amalvy emailed Morel two hours before downloading Morel’s images – allegedly from the Lisandro Suero TwitPic account – and entering them into the AFP system. It’s unlikely that Amalvy could have been unaware of the true provenance of the images on the Suero account having previously approached Morel.
- Amalvy also stole a number of other images from websites on the evening of the earthquake, including from the New York Times website.
- Internal Getty Images emails reveal that senior Getty staff, including the Director of Photography, knew of Morel, his association with rival agency Corbis, and his ownership of the earthquake images several hours before Getty began distributing those images.
- AFP ignored their own written rules for using social media content, rules that specifically warned of the “significant risks” of stolen images and copyright abuse.
- Amalvy claims that in fast moving news situations guidelines such as those in AFP’s rulebook don’t apply. This is in stark contrast to other news agencies, including the Associated Press, who also chased the Morel images but declined to use them when they were unable to contact the photographer.
- AFP and Getty had no workflow in place to ensure the removal of AFP images with a Mandatory Kill notice.
- AFP fed the Morel images to Getty multiple times under different names. As a result, when a Mandatory Kill notice was issued for the Morel images only those with a Daniel Morel byline were removed from Getty’s distribution network. Those with the erroneous bylines David Morel and Lisandro Suero remained available.
- Both AFP and Getty misled clients into believing that they represented the Morel images by removing his Copyright Management Information and replacing it with their own.
- Getty also licensed the images for commercial use, despite the fact that AFP’s Morel feed specified “editorial use only”.
The two sides are playing for very high stakes. Morel claims 820 instances of willful copyright infringement and associated offences, each carrying a possible award of up to $150,000: should the defendants lose they could face a bill of $123 million plus hefty legal fees.
The memoranda make clear the parties’ strategies in the case. The Morel documents – all 237 pages – are forensic, containing a detailed timeline of events, emails from AFP, Getty and Corbis, interviews with AFP and Getty staff, and depositions from Getty clients and subscribers.
In contrast, the AFP and Getty documents are somewhat sparse and surprisingly light on specifics. Rather than address specific Morel claims, the defendants largely restrict themselves to brief generic statements: “AFP does not intentionally sell infringing content”, “Getty Images does not promote or market infringing activity or content on its website”, and so on.
At the heart of the AFP defence is a reliance on the Twitter and TwitPic terms of service in force at the time of the infringement. Essentially this argument claims that the terms allowed AFP – or anyone else – to grab anything they fancied and redistribute it outside the Twitter and TwitPic environments. But this argument was rejected by Judge William Pauley in December 2010 when AFP went to court in an attempt to halt the Morel case: its resurrection now suggests that the AFP defence are running out of ideas.
Getty’s defence, meanwhile, attempts to place as much distance as possible between the defending partners. Essentially this amounts to “nothing bad was done, but if it was, it’s all AFP’s fault”. To support this Getty stress the automated nature of both the AFP feed and Getty’s own distribution system. However this argument is undermined by evidence that Getty staff manually altered metadata attached to the Morel images, and that agency staff licensed some of the images in telephone sales.
While the memoranda provide a clear insight into the thinking – or lack of it – at the two agencies as the scandal developed, one fascinating question remains unanswered: just who decided it would be a clever plan to sue Morel for defending his own property? It was this single fateful decision more than any other that escalated what could have been a dispute ending in a quiet out of court settlement into a highly publicised multi-million dollar war zone.
It’s unlikely anyone will ever step forward to claim the credit for that particular piece of ingenious public relations, for it’s clear that AFP and Getty are already bracing themselves for a crushing defeat. Buried deep in their memorandum is a plea to the court that should it find in Morel’s favour, damages should be limited to a maximum of $240,000. That’s a far cry from previous ringing declarations that “in the end, we shall prevail”.
The Case In Quotes:
January 12, 2010 at 9:42 PM, Amalvy emails Morel:
“Hello – I am the AFP Photo Editor- I am searching to contact you – Do you have images of the earthquake – You can send them to me at this address – vincent.amalvy@afp.com – Thank you.”
From the Morel memorandum:
“At 7:48 PM, Amalvy sent an email to wapix@afp.com with the image attachment ‘haiti 2.’ At 9:03 PM, Amalvy sent an email to wapix@afp.com with an image attachment ‘haiti 3.’ At 9:03 PM, Amalvy sent an email to wapix@afp.com with the image attachment ‘haiti 4.’ As set forth in Morel 56.1, there is no genuine dispute that the above images were taken from the Radio Tele Ginen website. At 9:07 PM, Amalvy sent an email to wapix@afp.com with an image attachment ‘haiti 5.’ The image by Tequila Minsky was sent via e-mail at 7:00 PM to The New York Times in exclusive. The image was never posted to Twitpic or social media site. At 9:38 PM, Amalvy sent an email to wapix@afp.com with an image attachment ‘haiti 7.’ This image is Minsky’s and was stolen by AFP from The New York Times website.”
January 12, 2010 at 11:04:19 PM, Andreas Gebhard, Getty Images Manager, Global Picture Desk, emails Francisco Bernasconi Senior Director of Photography News and Sports at Getty Images:
“Not sure if it’s worth contacting twitter.com/photomorel. Name is Daniel Morel. Don’t know anything else. Pix on twitter look very decent.”
Three minutes later Bernasconi responds: “Former AP staff shooter..I don’t want to contact directly now. He normally works for Corbis now.”
January 13, 2010 at 4:36 AM, Benjamin Fathers, Chief of Desk for AFP Paris, emails Amalvy:
“Vincent – I’m not certain Lisandro Suero’s photos are his but they belong to Daniel Morel – Look http://twitpic.com/xve5d”.
January 14, 2010 at 9:03 AM, Samantha Dubois, Deputy to the Chief of Desk AFP Paris, emails Amalvy and others:
“Hellooo, Hope you slept well !!! Here is today’s bad news”.
January 14, 2010 at 2:16 PM, Eva Hambach, AFP’s deputy photo editor for North America emails:
“US copyright law requires that the image be pulled and removed.”
From AFP Guidelines For Video And Photo:
“We may on occasion use video and photo used on sites such as Twitter . . .
There are three key questions before publishing:
1. Does the material have a news value that justifies its use given the risks?
2. Have we verified the content, origin and ownership?
3. Have we provided the proper context to our clients?
Verify five basic elements:
3. Source: Is the source’s identity and authorship confirmed?
5.Copyright: Is the image protected and if so what are the specific legal terms?”
Vincent Amalvy testimony:
“When have you have to decide to dive, I took my responsibility . . . As a result . . . was success for AFP during the three next days following the catastrophe. Guideline doesn’t care about this kind of situation. When there is no picture, no any anything, except a few of them, that’s different circumstances.”
March 9, 2010 at 2:20:51 PM, Chris Eisenberg, Getty Images Director of Content Management emails:
“What is our workflow for removing images from our site when AFP send us a
Mandatory Kill notice? Are AFP responsible for doing so themselves? We currently have 32 AFP images with ‘Mandatory Kill’ in the caption on the website, and when I spot checked, the original image for at least one of those is still on our website.”
Just over an hour later Andreas Gebhard responds: “At the moment, we have no definitive workflow on this.”
March 16, 2010 at 8:23 AM, Hambach emails Amalvy:
“You realize that it is impossible to clean up the worldwide web of all Daniel Morel AFP entries. There are images on websites, on blogs…they are used in video clips on YouTube. They are everywhere. Anyway, AFP got caught with a hand in the cookie jar and will have to pay. Now that we have a better understanding of the use of these images, shouldn’t it be up to the lawyers to negotiate. It is not my futile tries or attempts to clean that will change much to what will have to be paid.”
At 9:20 AM, Amalvy responds: “I agree except on the fact that we have what we – because we are in contact with robbery and we can’t – we have to show that this guy put the picture in high definition on the web and that’s the reason…”
March 26, 2010 at 4:56 PM, Catherine Calhoun, Senior Director Media Sales at Getty Images, emails Marc Kurschner Getty Images’ VP of Sales for North America:
“I just sent you a bit more details, along with the list of clients that downloaded these images. It’s a long list.”
At 5:55 PM Kurschner responds: “Oh boy, that’s not good.”
Exchange between Morel counsel Barbara Hoffman and CNN witness:
Hoffman: “Did you believe that Mr. Morel had sold those images to Getty Images?”
CNN witness: “At the time from the e-mails that is what we believed yes.”
Hoffman: “What led you to believe that?”
CNN witness: “Because they were available on the Getty Images website that subscribers have access to.”
Exchange between Judge William Pauley and AFP counsel Joshua Kaufman:
Kaufman: “Your Honor, this is not a unique interpretation of AFP for the purposes of this motion. People are re-twitting and re-Twitpic’ing pictures by the hundreds of thousands a day.”
Pauley: “Is that somebody else on Twitter like Suero?”
Kaufman: “Suero, yeah.”
Pauley: “Right? Suero, a thief, right?”
Kaufman: “Suero took -”
Pauley: “That’s your argument?”
Kaufman: “No, other people are allowed to -”
Pauley: “So the multitude is doing it; therefore, it is okay.”
Kaufman: “No, no.”
From the Getty defence:
“Getty Images requires and relies on the representations AFP makes about its content in the License Agreement. It could not possibly investigate whether the hundreds of thousands of images that AFP transmits to Getty Images’ database every year infringe other parties’ copyrights, without altering its business model, incurring massive expense.”
Fence [noun]: “a receiver of stolen goods” – Merriam Webster.
“An individual who knowingly buys stolen property for later resale, sometimes in a legitimate market.” – Wikipedia.
Like every latest greatest thing on the interweb Pinterest has seen a sudden rush of subscribers simply because…well…because it’s the latest greatest thing on the interweb. Described as a “virtual pinboard”, Pinterest claims to “let you organize and share all the beautiful things you find on the web”. This is usually done by a “Pin It” button, a browser bookmarklet that copies content from a web page to the user’s Pinterest board. From there it can be copied by other Pinterest users to their boards, and from there…well, you get the idea.
Alarm bells should already be ringing, but that hasn’t prevented a stampede for the Pinterest bandwagon. BMI Airlines launched a Pinterest lottery; GUESS, a Pinterest contest. Amateur Photographer, the world’s oldest photographic magazine, began pinning iconic photographs from the likes of Magnum, Corbis and Getty Images. The UK’s National Portrait Gallery has likewise been pinning images from their collection. And millions of individuals have been trawling the web, pinning whatever takes their fancy.
And then the questions started. Like: who owns all this stuff anyway? And what does Pinterest plan to do with it all?
As the answers emerged – somebody else owns it, and Pinterest now claim rights to do whatever they want with it – some of the corporate pinners began to back off. First the Boston Business Journal pulled all their material after only one day on-site. Then Amateur Photographer’s pins quietly disappeared: unlike the BBJ the AP has declined to say why. The NPG material is still there, but after comments from photographers the NPG is now “looking at the implications for the Gallery”.
As concerns grew it became clear that for many people Pinterest’s real crime wasn’t just that they had created a system designed to encourage easy copyright infringement, but that they attempt to shift the blame for the ensuing infringements onto their users:
“YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND SITE CONTENT REMAINS WITH YOU.”
“you agree to defend, indemnify, and hold Cold Brew Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Application, Services or Site Content, (ii) your Member Content, or (iii) your violation of these Terms.”
That may seem extreme, but it’s not unusual: many Internet sites have something similar, and since most users don’t read the terms of use nobody makes a fuss. But Pinterest got unlucky: one of their users was a lawyer, she did read the terms, and alarmed by what she found removed the material she had pinned and explained why. Naturally other lawyers picked up on the story, then other Pinterest users, and suddenly Pinterest found themselves in the eye of the web’s latest copyright storm.
There is of course a way to use Pinterest perfectly legally: just pin work you’ve created yourself or own the rights to. It’s true that in doing so you give Pinterest the rights to do anything they want with your work, including selling it. But if you’re a tireless self-promoter who doesn’t care how your work is used you may feel the publicity you get from Pinterest makes the trade-off worthwhile.
Except for one problem: that’s not what other Pinterest users – your audience – actually want you to do. So when tireless self-promoter and internet fauxtographer Thomas Hawk went on a “manic pinning episode of his own work” he was accused by one fan and Pinterest user of “masturbating in public” in using Pinterest for self-promotion.
And Pinterest agree, albeit in rather more restrained language:
“Avoid Self Promotion
Pinterest is designed to curate and share things you love. If there is a photo or project you’re proud of, pin away! However, try not to use Pinterest purely as a tool for self-promotion.”
So by their own admission Pinterest isn’t primarily for publishing original creative work, but republishing the work of third parties who almost inevitably will not have given permission.
Pinterest’s main defence in all this is the Digital Millennium Copyright Act, which provides Internet service providers with a measure of protection against prosecution as a result of copyright infringement by their users. But DMCA requirements are quite specific. They’re a package deal in which the provider is supposed to meet all the requirements, not pick and choose which parts they prefer, adding additional language to suit. However, according to intellectual property lawyer Connie Mableson, that’s exactly what Pinterest have done, leaving their DMCA defence looking distinctly creaky.
Even if Pinterest fix the wording of their DMCA offer there’s a further threat lurking: the DMCA is intended to protect providers some of whose users upload infringing content from time to time, not to protect companies whose entire raison d’être is copyright infringement. But that’s exactly the position Pinterest is in: without copyright infringement they have no business. Anyone at Pinterest who thinks that doesn’t matter needs to read this:
“We have spent millions of dollars on legal advice over the last few years and our legal advisers have always told us that we are secure and that we are protected by the DMCA which is a law in the US that is protecting online service providers of liability for the actions of their users.”
Those are the words of Megaupload founder Kim Dotcom, currently facing charges of racketeering, copyright infringement and money laundering. And what led to those charges? Why, Megaupload’s members were uploading and redistributing copyrighted material without permission – just like Pinterest’s members.
Econsultancy has asked: is Pinterest a copyright time bomb? The simple answer is yes. Pinterest is a cynical exercise that enables and encourages others to steal and is profiting from those thefts, while simultaneously attempting to plead innocence and place the blame on those who Pinterest encouraged to steal in the first place. But when the lawyers come calling, as they surely will, Pinterest may find that by shafting both creators and consumers of culture they have precious few friends left to defend them.
