>>>Market rate of £600 per picture? For internet use? Good luck mate, your dreaming.

For photographers:
Sure, a lot of people are using some of your pics to illustrate their websites or blogs. 99% of them don’t even know that law is violated by doing this.
In my personal case kids are showing around images in automotive forums (look, that’s my dream car …) or women do illustrate their profound diaries with some of my images – Great, love it, appreciate it.

Does it really harm me ? Do they really ’steal’ something ? At best they make an illicit copy. Where’s my dis-profit ?

I even give away free wall prints when somebody does like an image very much but can’t afford it. Why ? Usually people are very selective what to put in the living rooms, they ‘must’ look at it every day. That way it’s a great honor for me to be with ‘em.

It’s different when somebody steals my car, there will be a lot of empty space where my car was before. A big drawback – now I’ll have to walk :-(
And let’s hang the car nappers on the highest tree (no lawyers needed).
……………………

Of course things are quite different when a company uses images. They run a commercial biz and should know about the laws (at least a bit)

So for Heineken:

They violated copyright laws and now the photographers are threatened by their lawyers because they claimed about it ? Very weird … very very weird *smile

The average price at microstocks for web usage is approx $ 1 / image. For sure you get a big discount too when buying more stuff …

I guess Heineken does have this budget and I assume they didn’t do it by intention. And I even believe ‘em that’s the fault of their web designer.
A ‘poor little guy’ who maybe was misleaded by flickr’s API for CC licenses like Dan Heller has stated it above. Or whatever happened.

Just speculation, of course … but does it really matter WHO is responsible ?
It’s the name of HEINEKEN that’s out there, not the name of any webmaster.

Heineken should state : Hey folks, sorry … it happened … whoever was responsible, we haven taken down the images immediately… we are very sorry, blablabla ..

And then Heineken shall ship a sixpack (btw,it’s good stuff) to all the affected photogs … and it will be very ok.

To take over responsibility (especially when it wasn’t your fault) will make for ‘great guys’.
And ‘great guys’ will brew ‘great beer’ – best marketing. And all the photogs would drink more Heineken stuff in the future because now they have a ‘relationship’ to the company (again … marketing)

Or, instead of spending tremendous money on lawyers, Heineken could give the cash to the photographers (that will buy ‘em truckloads of beer, not just a sixpack *smile) … would be even better.

Or … Heineken shall fire the lawyers – would be best.

Anyway, nice weekend … let’s party … there are A LOT of other good beers out there

Best, reini

Heineken are playing hardball with this – their lawyers are saying the following:

- Heineken are not responsible it is the responsibility of the web developer
- Photographers are being told that if they pursue the matter through the courts individual legal action will be taken against them for deliberately damaging the reputation of Heineken by discussing the matter on internet forums and in the media
- Heineken are disputing jurisdiction of any claims lodged in courts outside of Ireland
- Heineken are saying that if any claims are filed in court they will move to bring action in the Irish High Court to have any claims struck out and will be pursuing individual photographers for their legal costs.

The advice I have is that any counter claims by Heineken would be laughed out of court and that Heineken are definitely responsible not the web developer.

Jake said:
> 1. I have no idea what you mean by false positive. If the API
> requests ARR photos, the API returns ARR photos. If the API
> requests CC photos, the API returns CC photos.

Clearly, if Flickr has fixed their API, then they won’t be liable for contributory infringement. That has always been the one and only issue at hand. All other claims that Flickr could be responsible for how others (such as Heineken) have used images are baseless. People may not like that companies access images from Flickr and use them inappropriately, but this isn’t Flickr’s fault. If anyone’s felt that I have said otherwise, they haven’t been reading closely.

The problem with Mr. Heller is that he seems to be reasonably intelligent, he’s well spoken, and he argues well. To his credit, he is so persuasive that he convinced a publishing house to let him write a book about model releases even though he’s not a lawyer!

It is for people of this type that the phrase “a little knowledge is a dangerous thing” was invented.

While I’ve learned there’s no real point arguing with him, and my post was perhaps a little sharper than it needed to be, I really do think he should try law school. But until then, I really do think he needs to stop giving legal advice.

M

And because nobody ever seems to quote the whole stanza, and it is quite apropos:

” A little learning is a dang’rous thing;
Drink deep, or taste not the Pierian spring:
There shallow draughts intoxicate the brain,
And drinking largely sobers us again.”

You write, “The photographer can claim that his photos
are being infringed upon as a direct result of Flickr’s API providing false-positive results in a manner that causes financial harm. The natural counter-argument is, “so if you knew that was happening, why don’t you take your pictures down?” Answer: Because Flickr has now because a very good platform by which to promote yourself, your photos, and to gain business and traffic.”

1. I have no idea what you mean by false positive. If the API requests ARR photos, the API returns ARR photos. If the API requests CC photos, the API returns CC photos. If a photographer has opted out of API searches, then the photographer’s works do not appear in photographer’s searches.

2. If you know exactly how Flickr works and believes it enables copyright infringement, then you should stop using it. If I were a judge (I’m not), I’d laugh someone out of court if they sued for contributory infringement and the litigant claimed that although he knew that the infringement could occur, he used the service anyway because it was such a great platform for promoting his work. At that point, the litigant would be a contributory infringer to at least the same extent as Flickr.

Judging from the amount of email I’m getting at my site as a result of this discussion, there do seem to be a lot of people reading all the way down here. :-)

As for “understanding it,” suffice to say, it takes years of research in this and related areas to piece it together easily. I can understand why most people go to (and listen to) their industry-leader types rather than try to digest it themselves. The years I put into the research for my model release book has yielded far more information in what appeared to be unrelated areas (like this) than I bargained for.

I appreciate that you brought the subject to light… again…. :-|
In any event, I do think the discussion has come to an end–I’ll drop out from there. People can forward me follow-ups to my email address if they want to continue talking…

dan

This is from the APA, but it is similar to the other doucments listed, as well as virtually all arguments made in objection to the OWA. It all boils down to this quote from their document:

“Our primary objection to this legislation is that its effects cannot be limited to old or abandoned copyrights” because it “will necessitate that rights holders register their works” in order to get into the databases. “Why? Because as users come to rely on these
databases to conduct a ‘reasonably diligent search’ for rights holders, any works not found in these databases could potentially be infringed as orphans.”

This is the primary and most fundamental error in this analysis: that a court would side with the user of a work simply because the work was not found in the database. That’s not how the law works. Courts are very much aware that billions of images are on the internet and many of them will not be “registered.” They are not going to simply give a green light to publishers simply because the image was not found in a database. That would not only alter the entire precedence of copyright law, but all sorts of laws well beyond copyright. Courts look at real-world conditions and understand the context of what’s going on. The publisher of the image will have to make a much stronger case to show they had good reason to believe it to be orphaned by a long-deceased copyright holder, and that no heirs exist. the purpose of the database is NOT to establish whether a work is orphaned, but rather, as an aid to determine who the owner of a work *is*. Just because it’s not in the database does not establish it as an orphan.

Since all of this only applies to a very, very narrow scope of users and uses that would be eligible for this in the first place, there is plenty of opportunity to allow the court system to play out initial scenarios with extremely minimal impact on the industry.

Heineken Music hasn’t admitted to anything despite claims and proof from photographers. More over these are only those who had the chance to check through their website to find their images. There are many more who would have had their images used and known nothing of it. With this in mind I cannot imagine Heineken would apologise and compensate ALL who were involved not just those who were fortunate enough to find out, take screenshots and pursue a claim.

Secondly Flickr is not exclusively a free website, many users pay an annual fee for storage of over 200 photos. So it is a subscription service, as seen by any member that has “pro” by their username.

With a view to complaining that their images were used photographers have every right to. It is their property, and should not be open to exploitation by companies, regardless of size. The internet may be awash with people having their images misused but this does not excuse the behaviour, or mean it is in any way right. Nor should those involved be made to feel uncomfortable for airing their concerns.

The Internet is a stable of modern life, and as such will have to evolve to serve its community. As more media become available online, policing techniques with soon have to find a balance, curbing the activities of those who wish to exploit it.

Even the smallest website designer has to work within the rules of the industry, and with that in mind how in the world do they get away without fact checking?

If this was in a magazine, or even part of an advertising campaign that was only out for a week and they printed all rights reserved photos without permission would that make it more acceptable for those who doubt the validity of the photographers’ claims?

This is after all a business, and the website designers would have been paid for their design and implementing the Heineken Music website. It is in their interest to ensure that all of their information, sources and media – in this case photos are suitable for their final design before the website is live.

The website designers are at fault for not insuring that they have properly used the API. A simple check of even a minority of the flickr usernames involved with the images that they had pulled using the API would have shown them that the images in question were all rights reserved.

There will be those who quibble the finer details and get into bitching matches, but it still stands for 20 days Heineken Music posted all rights reserved photos on their website without permission or prior agreement. They pulled the website when they were found out and put another in its place, and have angered a community of photographers professional and amateur alike.

And for this they only have themselves to blame.

Next time they want to use the API, they might want to check first. Use the search box, its in the centre of flickr’s home page. Type a username and read their profile see where they stand on image use, most people have a viewpoint and are upfront about it. Hell, even click on the image you want to use and look at the photo details on the bottom, it’ll tell you all you need to know.

And if all else fails and you’re still not sure, ask – Flickr users are usually a friendly bunch, you just don’t want to see them when they’re angry…

There is no irony here–the discussion at hand is about copyrights and infringements and such. All your questions have been addressed. That you are taking this as an “argument” is unfortunate. Either reply to specific statements, or ask more questions. Stooping to character assassination is not helpful in your comments.

Hey, I’m all for the above. Surprisingly, explaining OW legislation to you is not high on my list of priorities.

If anyone is interested, please visit:

http://www.apanational.com/i4a/pages/Index.cfm?pageID=3866
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185

You might want to start out by complying with Flickr’s own rules regarding using Flickr for commercial purposes. Complying with those community guidelines would help establish that you at least understand Flickr’s rules.

The levels of irony here are outstanding. I suggest you walk softly and don’t bring your account to the attention of Flickr staff, because there is a very real chance that they would terminate your account for using it to so directly promote your commercial business.

Now you’re just being silly and argumentative. I posted a a link to a lengthy blog where I show actual text of the bill, and I go through a discussion of the whole thing. And yet you say “perhaps you haven’t read it…” Have you not paid attention?

Again, if you can cite specific text that is a problem and explain why it harms photographers, this discussion can move forward. Otherwise, I’ll just bow out.

Dan- FYI – Howard Berman introduced the bill on the House side and Patrick Leahy in the Senate. Believe me, they weren’t telling me that this bill is bad. Quite the opposite. Neither was anyone else I met with in Washington.

“So, don’t think I have any relationships or vested interests in people or companies that want to see this passed. ”

Well golly, now I actually have to wonder if you do.

“And yet, I don’t see anything wrong with the OWA.”

Perhaps that’s because either you haven’t read the bills, or, you’ve read them and are not cognizant of what they actually mean.

@38 – Marc, thank you. You’re my new hero.

If your only argument against my positions is that I haven’t gone to law school, that’s a pretty poor way to argue a case. If you have specific exceptions to my assessments of the matters in discussion here, address them directly. Character assassination does not win an argument.

I am a photographer! I want to keep my rights! I don’t want to lose anything either. I’m not on the other side. So, don’t think I have any relationships or vested interests in people or companies that want to see this passed. And yet, I don’t see anything wrong with the OWA. I’ve read all the analysis of it, and it’s almost entirely baseless fear-mongering. I want someone — anyone — to cite specific language in the bill and show me the steps on how that language suddenly reverses rights or commpromises anything. I’ve already pointed to the language that shows it doesn’t, and the only response I get from people is, “well, *I*’ve heard otherwise,” and that’s it. Sorry, but that’s not a cogent argument.

dan

> Like you said, Flickr provides ways for users of the API to screen their
> images as appropriate, and make no warranty that any image can be used
> for any reason. Here’s a bit from their API terms:

The whole point of “gross negligence” is that it supersedes contract
terms with or by other parties. Their TOS for their API is inapplicable
if Flickr has been notified that their program causes harm, or that
allows others to cause harm, AND Flickr has chosen not to fix the
problem while in full knowledge and awareness that such harm is being
caused. This is the same sort of thing that keeps getting cigarette
and gun companies in trouble, despite blatant, copious warnings on
product packaging. There are other precedents set in all other manner
of society, ranging from consumer products to the software world.

Once a company performs in a manner that allows others to cause harm,
and the company has had opportunity to correct the problem, they cannot
defend themselves by pointing to their TOS agreements. Those become null
and void.

> So clarify for me who exactly would be suing Flickr for contributory
> infringement, and what exactly would the claim be?

Two possibilities:

If Heineken were to be sued by someone for a lot of money (statutory
damages go up to 30,000 for works registered with the copyright office)
and the copyright holder did not want to settle, thereby forcing Heineken
to not only risk losing $30,000, but also their lawyer fees AND the legal
fees of the copyright holder, the best financial decision would be to go
after Flickr. They would argue to the court that Flickr has known
about this bug, that there have been other cases already, and that
people continue to be harmed, and that Flickr had ample knowledge and
opportunity to correct the bug, the court could hold Heineken harmless
and rule that Flickr is liable in the ruling against Heineken. Thus,
Flickr would have to pay the copyright holder for the violation.

(This won’t happen because photographers are willing to settle with
Heineken, who’s willing to pay a measly $60 per photo — a tiny price
to pay, and much easier than the scenario I just described.)

The second possibility is that a photographer continually finds that his
photos are being infringed upon by other publishers, who acquire them in
the same “blind sighted” manner that Heineken did: they searched for CC
attributed photos, and got non-CC photos as results, which include the
said photographer’s photos. The photographer can claim that his photos
are being infringed upon as a direct result of Flickr’s API providing
false-positive results in a manner that causes financial harm. The
natural counter-argument is, “so if you knew that was happening, why
don’t you take your pictures down?” Answer: Because Flickr has now
because a very good platform by which to promote yourself, your photos,
and to gain business and traffic. Personally speaking, I have quite a
lot of photos on Flickr, and many people contact me to license images
legitimately because of that. Similarly, I get a lot of traffic to my
site because of Flickr (my photo captions link to my site where more
similar photos can be found). In short, Flickr has become a viable forum
for which business can be conducted; I no more want to vacate the Flickr
“mall of stores” just because Flickr has a faulty sign that says “Free
Samples” over some of my inventory. I just want them to fix the problem,
which is in their full power to do. If that “bug” in their system is
known to cause others to infringe, and those others are forced to pay
penalties because of this bug, then Flickr can be found to be accountable.
I personally have not found any copyright violators who’ve acquired *my*
photos using Flickr’s faulty API, but clearly, it *is* happening to some
people. Those people could file a “contributory infringement” claim as
described here. Moreover, it only requires ONE infringement — say,
this Heineken case — for a case to come to court. (A likely outcome
would be that Flickr settles with the photographer and then fixes the
bug.)

You’re wrong – grossly wrong, if you’ll pardon the expression. Consider yourself corrected.

You know, law school only takes three years (or five if you go at night.) If this burning and unquenchable desire you have to dispense legal advice is just that irresistable, I suggest you look into applying. As has been pointed out here and elsewhere, your penchant for doing this is going to get you and/or anybody unknowledgeable enough to listen to you into a lot of trouble one of these days. At the very least, a J.D. will teach you not to build elaborate arguments around fundamentally incorrect understandings of the law and its terms of art.

M

http://grimygoods.com/2008/08/12/shame-on-heineken/

From my meetings in Washington, DC and LA with members of the House and Senate and particularly from Howard Berman’s Chief Counsel. I think I’m going to go with what she said Dan. I believe she knows a bit more than you.

“Some people have said that it’s “easy to get around them,” or that images may not necessarily be in some databases for search, but this is hogwash.”

These databases haven’t been established yet. We have no idea as to how they will work or how many databases will even materialize. Hogwash? I didn’t realize you were psychic.

“Copyright holders have the upper hand because all they have to do is demonstrate one instance of their image showing up. Just once. the rule of law is on the side of the copyright holder, NOT the infringer.”

You have an interesting way of interpreting these bills.

“And lastly, no one else in the corporate world, non-profit world, or any other world is affected in any way by OWA. ”

Except photographers.

Like you said, Flickr provides ways for users of the API to screen their images as appropriate, and make no warranty that any image can be used for any reason. Here’s a bit from their API terms:

“Comply with any requirements or restrictions imposed on usage of the photos by their respective owners. Remember, Flickr doesn’t own the images – Flickr users do. Although the Flickr APIs can be used to provide you with access to Flickr user photos, neither Flickr’s provision of the Flickr APIs to you nor your use of the Flickr APIs override the photo owners’ requirements and restrictions, which may include “all rights reserved” notices (attached to each photo by default when uploaded to Flickr), Creative Commons licenses or other terms and conditions that may be agreed upon between you and the owners. In ALL cases, you are solely responsible for making use of Flickr photos in compliance with the photo owners’ requirements or restrictions. If you use Flickr photos for a commercial purpose, the photos must be marked with a Creative Commons license that allows for such use, unless otherwise agreed upon between you and the owner.”

And much more like that.

So clarify for me who exactly would be suing Flickr for contributory infringement, and what exactly would the claim be? Please try to avoid the confused analogies, they tend to just muddy the waters.

Let’s say you walk into a store and see a table with crackers on it, and above is a sign that says, “Free Samples.” You take one. But as you leave, the people who make the crackers stop and you say you didn’t pay for them and force you to pay them the $1.99 that they cost when you buy them on the shelf. Isn’t the first thing you’re going to do is go back into the store and say, “hey! you gotta give me my $1.99 back because you lied! They _weren’t_ free, and I wouldn’t have taken them if you told the truth.”

THAT’S akin to “contributory infringement” in this discussion.

Ok, now pretend that the cracker company called the police and had you put in jail and paid a $200 fine for robbery. Chances are, you’re going to sue the store for their having duped you into getting into trouble.

That’s what happens when a Heinekin gets sued for $10K because they infringed on photos that they were given assurances were “free to use.” They got those photos from Flickr using their API, and the API has a very old and well-known bug in it that returns non-CC images, even if you say you ONLY want CC images.

As a result, the end-users who publish these images are now liable for copyright infringement without their knowledge. Hence, Flickr could be held liable for contributory infringement.