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The latest hot
startup in the photo-sharing space is one that is also creating a lot of
controversy about copyright infringement. Pinterest lets
users create "boards" of images they find from around the Web. Users
“pin up” these images, and share them with friends and strangers.
“Is this copyright infringement,” you ask?
Well, imagine exactly
the same website that let's users upload music or movies. Do you think the
music labels or movie studios would permit this? Pinterest would be shut
down before they could get their first dollar of venture capital.
“But they’re photos, not music or
movies!”
Yes, and photos have precisely the same copyright
protection.
“Ok, wise guy, then why hasn’t
Pinterest been shut down?”
Simply put, there’s no one there to stop them, at
least not with the same effect and scale as music labels or movie studios.
And the reason is reflected in your very statement: society simply regards
photos as “different” from movies; they don’t see Pinterest’s use
of imagery as copyright infringement.
And this is a natural feeling to the common
person. Everyone shoots pictures all the time; it takes milliseconds; most
people don’t invest any thought or intent. By contrast, music and movies
require considerable time, effort and expense to produce. So, there’s a
difference.
And
herein lies the unresolved problem: the law is the law, and photos are
copyrighted works, regardless of the time, skill, or anything else
necessary to create them. Accordingly, photos are supposed to enjoy the
same legal protections as music
and movies.
“I see. But, most people want and expect to share their
images with others.”
Yes! Their images. Pinterest
isn’t letting people share their own photos; they’re sharing other people’s photos.”
“Ah, I see now.”
Very good, Grasshopper.
As a society, we permit this kind of infringement, which
explains why there are no large, powerful, influential organizations
representing the interests (and the copyrights) of photographers. People
simply regard photos as different.
A case in point can be found in this
article on chow.com, discussing people’s reactions when they found
their recipes were being “pinned” to Pinterest, along with the photos
of their foods. The complaint was that their intellectual property
(cooking recipes) were being stolen; the recommendation: “Just allow the
photo to be shared, not my recipe!”
You see? Never mind the pro photographers whose
pictures were being infringed; they’re not part of the conversation.
“Ok, so what about those
professional photographers? How are they hurt?”
I’ve been a photo
industry analyst since the mid 1990s, and I’ve seen the industry suffer
more from “piracy” than the film and music industries combined. Every
single publicly traded stock photo agency has either gone out of business
or withdrawn from public trade. Getty Images is the last profitable
company of any significant size, and even then, its pay to photographers
has been drifting lower for over ten years to maintain that status. A
series of studies from Picscout – a photo-tracking service
for stock agencies and photographers – finds that 90% of commercial
websites use at least one photo in a manner considered to be “commercial
use” without the copyright holder's authorization. No company whose
business model is to sell or license photography has had venture capital
investment since 2000.
Yet, the shadow
economy for photography is enormous. In a study I conducted
in 2007 on contract for a potential investor in a photo-related
technology, I found that most photo buying and licensing was done on a
peer-to-peer basis, mostly in local markets and exchanges, at a scale that
suggested the total economic activity tipped at $25B/year. Yet, none of it
can migrate online because of the “perception” that photos don’t
count when it comes to piracy, and because there was no possible
infrastructure to enforce legal protections.
So, yes, the photo industry has been starved
to near extinction, compared to what it could be if it similar legal
representation that the music and movie industries do.
“My gosh, I’m getting sad. But I
still want to share photos online.”
Don’t misunderstand me; I’m cognizant and
sympathetic to the non-professional side of photography and the social
value of sharing images, both culturally and economically – including to
those photo-sharing sites like Pinterest. There’s no question that
people should be able to share images online with others in an unfettered
manner that Pinterest provides, as well as every social network.
But to do so in
compliance with copyright law would require a series of rights access that
cannot be scaled up to serve the public at large without a centralized
(and streamlined) rights clearinghouse. Legally speaking, Pinterest should
obtain rights from “everyone,” but it’s not possible because people
are uploading other people’s
photos. If there were a central clearing house open to everyone –
say, like the music labels have – Pinterest could enter into a unified
license agreement.
Without such a clearing house, the law is the law, and
the courts will eventually be forced to reconcile the law with society’s
desires. Well, provided cases are brought to court to press the issue.
This is not new.
Copyright itself has been a controversial topic for society (and justice)
for years, and continues to this day. On one hand, there are many
who believe that copyright protection should be lifted, if not
severely curtailed, largely in order to avoid this very problem of the
social benefit from photo-sharing. Economists, on the other hand,
understand that the creative economy only exists because people can earn a
living from their efforts—that "human creativity is the ultimate
economic resource." (Florida 2002) If they couldn’t
economically benefit from their creations, society would suffer more, since the lack of incentives
(and hence, resources) would starve an important and socially valuable
industry.
The
only legal basis for dealing with this dispute continues to reside in the
Copyright Act in 1976, which states that “copyright
protection extends to original works of authorship fixed in any tangible
medium of expression,” including photography, of course. Tightly coupled
with the Copyright Act is The Berne Convention, which states
that “Copyright must be automatic; it is prohibited to require formal
registration.” Yes, the USA provides added protection that permits
authors to register their works with the Copyright Office, which then
affords them “statutory damages” in legal claims, which guarantees the
copyright holder a minimum of $750 per claim, and up to $150,000 if the
infringing party “willfully infringed” (that is, with intent). But this registration is not required
in order for the copyright to be held by the person holding the camera,
and that ownership comes with rights.
So, Pinterest and other social networks are
technically contributing to copyright violation by permitting other users to upload unauthorized
copyrighted works. This is called “contributory infringement.” This Wikipedia excerpt explains, “indirect infringement
arises when a party materially contributes to, facilitates, induces, or is
otherwise responsible for directly infringing acts carried out by another
party.”
These
underlying legal principles of copyright law are subtle, and few are as
educated on it as they like to believe—especially corporate law firms
that write the legal mumbo jumbo in “terms of service” agreements
(TOS). To wit, Pinterest’s own TOS stipulates that when you upload a
photo to Pinterest, you are granting it a "perpetual, irrevocable,
royalty-free license to use” your photos on its site and "application or
services." While this is applicable if you own the photos you
upload, you cannot grant this permission for photos that aren’t yours.
That is, you are not the legal authority of someone else’s
photos. So, Pinterest’s own TOS is unenforceable on photos that the
user doesn’t own, which is pretty much all of them. So, strictly
speaking, their TOS is toothless, pointless and moot.
But this is also
besides the point: the user
violated the copyright, not Pinterest.
So
again, who’s to complain? To whom? Against Whom?
One could try to sue
Pinterest, which is where their lawyers would quickly seek protection
under the Digital Millennium Copyright Act (DMCA), which
states that websites that host content uploaded by users cannot be held
liable for copyright infringement, so long as the site complies with
“take down notices” from those copyright holders. Here, the original
owner of the copyright notifies the company with a “take down notice,”
and the company is off the hook—no TOS necessary.
Many companies –
Pinterest, included – very effectively use the DMCA as the “get out of
jail free” card, effectively keeping their business out of legal danger.
But once
again, we come back to the subtleties of the Copyright Act. As stated
earlier, Pinterest could be liable for secondary infringement, which would
make them ineligible to seek protection from the DMCA. For matters
relating to copyright, courts would have to decide on the merits of such
claims solely on case law developments.
This brings us to landmark cases, such as
Napster and most notably, Grokster, where courts have
established a three-point test to determine if a website “induces
infringement”: (1) whether the majority of the content uploaded by
users is infringed works; (2) whether the site provides tools that can only be used to
infringe; and (3) whether the use of the works are (a) for
commercial purposes or (b)
harms the commercial interests of the copyright holder.
In the case of
“majority of content,” this part is pretty self-evident.
In the case of the site
providing tools that are “only” used to infringe, Pinterest’s
defense would have to be based on a finding by the Supreme Court in “Sony Corp. of America v. Universal City
Studios, Inc,” where the
court found that, contributory liability cannot be imposed unless the
technology lacks substantial non-infringing uses. Flickr,
for example, only provides an “upload” button that allows users to
upload images from their own hard drive. This provides “substantial
non-infringing uses.” Indeed, the content on Flickr has most of its
images uploaded by the original photographers themselves. Pinterest,
however, cannot demonstrate this: their tool does not permit uploading
photos from one’s own computer; in fact, it encourages users to pin
photos from other sites.
The third test –commercial profit– also has roots in
the legal doctrine of “Vicarious Liability,” where “courts have
extended liability to those who profit from infringing activity when an
enterprise has the right and ability to prevent the infringement.”
If someone were to
go to the effort of showing that Pinterest satisfies all three tests, the
company loses its DMCA protections, and must now face the music. This then
re-engages copyright law, where the company could be liable for statutory damages if any of the
works are registered with the copyright office. (Many pro photographers
whose works are generally passed around the most, actually register their
works.) Statutory damages mandate a minimum of $750 per infringed work,
although a judge can raise the limit of the claim up to $150,000 per
infringement if the defendant was deemed to “intentionally
infringe.”
One would assume that if a site lost its DMCA protection
because it was “inducing infringement,” then a judge would likely also
rule that the infringement was “willful.” Hence, the $150,000 per image claim would be a
hefty speeding ticket.
“Sounds troubling for Pinterest! Are
they in trouble?”
Probably not. And it’s not because they aren’t in
violation of copyright law—they are. It’s back to the basic question
of “who’s going to sue them?” Unlike music and movie companies that
have hoards of lawyers representing their interests and who aggressively
shut down websites and file legal claims perpetually, photographers have
no one. As individuals, photographers are too unsophisticated to navigate
the difficult and expensive litigation process, so it is highly improbable
that many will sue. And even if they did, they won’t be able to do so in
a critical mass necessary to materially affect the company the way may
music labels can. And even if they could, they’d be up against the same
free-speech advocates that defended Grokster. This would not
be an easy or inexpensive task, and would probably garner a large
push-back from society who already regards photos as “different.”
I don’t mean to
“pick on” Pinterest, actually. They are but one of many such sites. Polyvore not only satisfies the three-point test of “inducing
users to infringe,” but their volume knob goes to 11: They offer even
more sophisticated tools to infringe, including software that
specifically designed to copy photos from other sites, while also
providing no tools to upload
users’ own photos, which flies directly into the face of the
definition of Contributory Infringement, and satisfies the Supreme
Court’s own language on whether the technology has a substantial
“non-infringing use.” Worst of all, they are actually selling
products, not advertising, which satisfies “Vicarious Liability.”
And their legal
problems go beyond just copyright. Users also upload photos of celebrities
to adorn the products sold on the site, which could be in violation of
publicity laws if there isn’t a model release. (Cameron Diaz’s picture
is one of the most popular.)
Polyvore does
provide its own photos, which are legitimately licensed -- namely, from
the companies selling the products depicted in the pictures. The test is
whether the majority of the content uploaded by users are unauthorized.
Other factors that appear to implicate their “knowledge of willful
infringement” is a statement warning people not to
infringe, and the promise they will take down photos if contacted by
copyright owners. While one could argue that they are trying to give
notice, this is akin to warning labels on cigarette boxes. No one’s
fooling anyone here.
There’s no doubt that Polyvore knows its users are
infringing, and it’s certainly possible that they are aware that they
are also “inducing” infringement, but they are counting on the same
two factors that Pinterest is: society accepts copyright infringement of
photography, and more importantly, there are no special interest groups
that will sue them for “contributory infringement” on behalf of a
class of photographers.
“So, as long as
society has accepted photography as a non-threatening step-child in the
copyright debate, these sites are safe.”
The force is strong in
you, young Jedi.
Still, the risk profile could suddenly spike if there
were an unintended rise of those who would intend to assert those
copyright protections, which could happen if incentives were to suddenly
materialize. For example, a SOPA-like legislation.
“Huh? SOPA? Come again?”
Although the Stop
Online Piracy Act is dead for now, the music and movie industries are not
about to let it go. Something will eventually re-emerge with new and
different terms. We’re already seeing a great deal of anti-piracy
legislation coming out of Europe, and Congress and others are under a
great deal of pressure to do something (probably after the election
season).
What needs
to be considered is the unintended consequences that might result if they
don’t reconcile the incompatibilities between the social aspect of
photography and the fact that it’s a copyrighted work. For, whatever law
that has the intention of protecting movies and music just might create a financial incentive for
new actors to enter the stage and try to represent the interests of the
entire class of photographers, professional and otherwise. And the social
networks that use photos are far bigger and vulnerable than the usual
targets that music and movie studios attack, escalating the size of
litigations that could arise.
A poorly drafted SOPA-like law could affect the
internet in highly unexpected ways, akin to the sudden and immediate
changes we saw in our political system after the Supreme Court’s
decision on Citizen’s United.
“So, do you have a better
solution?”
Funny you should ask.
I don’t believe one can ever legislate
around this problem. There are two economies at play all the time: a
legitimate one and an underground pirate economy. The best you can do is
create so much incentive for people to participate in the legitimate
economy, that the efforts to pirate become less interesting and less
profitable, yielding a progressively smaller proportion of that
industry’s total economy. Steve Jobs pleaded with the music industry to
remove music locking in song files using the argument that people don’t
want to infringe, so long as
they can get access to what they want at a fair price. When the music
industry finally agreed to remove those locks, online music sales spiked.
But the music (and film) industries haven’t kept up with cultural and
technological trends in how they handle the business side of their
industries. They are still trying to solve 21st century
problems with 20th century attitudes.
It’s not that I
disapprove of litigation – it’s the music and movie industries
greatest advantage. The legitimate marketplace exists because
music and movie companies have the infrastructure to enforce
copyrights; this is the stick that gets people to seek the carrot,
benefiting the entire marketplace financially and fairly.
When it comes to
photography, there is no infrastructure for enforcing copyrights, so
there’s no viable marketplace. I mentioned that there needs to be a
central clearing house for photo rights management: My solution to that is
here.
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