One thing I’ve learned over the years is this – screwing over your users while yelling “the lawyers made me do it!” rarely ends well. Particularly when the lawyers are just being lazy, and free speech rights are at stake.
Flickr really stepped in it this time. And they’ve sparked a free speech and copyright fascism debate that is unlikely to cool down any time soon.
Sometime last week they took down a photoshopped image of President Obama that makes him look like the Heath Ledger (Joker) character from The Dark Knight. The image was created and uploaded to Flickr by 20 year old college student Firas Alkhateeb while “bored over winter school break.” It was also later altered yet again by someone else and used to create anti-obama posters that went up in Los Angeles.
Thomas Hawk has a good overview of some of the other details, but the short version is the image was removed by Flickr sometime last week due to “due to copyright-infringement concerns.”
People are angry over the takedown. There are lots of pictures mocking President Bush on a Time Magazine cover on Flickr that haven’t been removed. And of the Heath Ledger Joker character.
The DMCA Excuse
Yesterday Yahoo fired back at everyone who complained, saying that they were required to remove the image pursuant to a DMCA takedown notice. Flickr’s director of community Heather Champ says “In this intance, the Yahoo! Copyright Team here in the US received a complete Notice of Infringement as outlined by the DMCA (Digitial Millenium Copyright Act). Under the DMCA, an individual may choose to file a counterclaim”
She added “We very much value freedom of speech and creativity.”
DMCA abuse is a growing problem on the Internet, and luckily the EFF often comes in to defend people who are unfairly being accused of copyright infringement. And I don’t think there is a lawyer in America who would argue that Alkhateeb isn’t perfectly within his rights to create and distribute this image under fair use and parody defenses.
Yahoo/Flickr should have asked its attorneys if the copyright claim had any validity at all before removing the image, particularly since in this case the image is so clearly non-infringing and also is so politically charged. Yes, Yahoo would have had theoretical liability by not complying if the image was later proven to be copyright infringing. But as I said above, any lawyer could tell you that this is clearly a fair use of the original Obama image, Time Magazine’s copyright and copyright around the movie.
In the past Flickr has deleted accounts of users who are critical of President Obama, but as far as I know nothing like this was done to users who were critical of Bush.
It’s clear that the Flickr team wanted to take this image down. Not only was the image removed, but the entire page was taken down with all the comments to the image. There’s nothing in the DMCA that says you have to do that, too.
Flickr lost my trust over this issue. They failed to stand up for a user who chose to display his work on Flickr over competitors.
They should have had the courage to do the right thing. This is exactly the type of speech that our constitution is supposed to protect. This is not a stolen image. It’s a powerful political expression.
Flickr has a long history of doing stuff like this in the past. And this scares me because they do not provide an easy way for anyone to backup their images. Downloading using scripts through their API have been painful because their API servers time out randomly causing breaks. In the end, I am an unhappy Flickr user.
Flump has been working very well for me… http://code.goo...tour/wiki/flump
Sure, just make sure you never reach the end of your leash.
Stay tooned for the next episode of Nazi Hunter with host Michael Arrington, as he expands his calls for editorial censorship from his high command on the brig of the His Royal Majesty’s Good Ship DMCA.
Sorry but I think Flickr did the legal thing and took it down. DMCA is law and the person can counterfile if it was filed improperly – there’s not much Flickr could do.
Your a dunce, the DMCA is used to prevent copyrighted works from being illegally distrubited, they are not doing the “right legal thing” as the image isn’t copy righted by Firas Alkhateeb. It’s a parody which is constitutionally protected. Flickr has the ability to check and see if the file was copyrighted before blantly abusing their users trust and loyalty.
The places of free speech on the web are few and far between. It is now unfortunately getting dominated by politically correct douchebags pushing their agenda to pull anything that may offend someone (usually from their own side). How many pictures of GW Bush were there with a monkey face on him? If you make a monkey comparison to obama now it’s racist. What we need to do is support the few places left where freedom of speech prevails. http://f2bbs.com is a good example.
I never considered myself partisan, but I actually think the removal of the anti-Obama image is the lesser of two evils. That image became the basis of fear mongering across the USA. It’s a pity that it’ll now bed some legitimacy to the extremist Right and further muddy the public health debate.
I have becoming partisan, but partisan I have become
And where were you when the picture of Bush as the joker popped up everywhere?
THAT was ok, wasn’t it?
You either approve of it or you don’t. You don’t get to be selective. Like your reading of the article..
I actually disprove of the image and I dislike Obama a lot. More respect should be paid to our presidents, republican or democrat.
I have to agree with the argument presented in the article. They took the photo down because of their political leanings..and then hide behind a DMCA take down notice. FAIL.
I’d agree with you if you’re talking about an individual or a even a privately owned business; but this is Yahoo!/Flickr and there are shareholders/employees/ecosystem the CEO needs to care about, right? If you were Yahoo! CEO, would you publicly say sorry, Flickr is dem leaning? Seriously, be honest.
“More respect should be paid to our presidents, republican or democrat.”
Where is your respect for the 1st amendment? Freedom of speech is aninalienable right! I for one would not want to live in a country where you could not criticize our president. Would you like to live in the kind of country like Iran or North Korea where it is illegal to speak your mind. Any president should have to earn the people’s respect the people do not owe him anything.
more respect should be paid to the people. When it comes to personal security, there’s no limit to what we should give the president. but when it comes to political discourse, there’s no limit to what people should be able to say. and this certainly comes nowhere near any line.
No one is stopping this person from posting their pic on their own website. Flickr had some concerns over copyright infringement, they may lose trust in some users, but they’re not stomping on people’s rights.
whoever sent the DMCA is presumably willing to stop them from posting the pic on their own website, too.
you’re right, yahoo isn’t doing the stomping nicolas. they’re just facilitating the stomping.
I’m glad you stood up for principles on this one, Michael.
Flickr is guilty of politkorrektnost on this one.
double standards by Flickr. that’s what’s wrong with this. And yes Mike, presidents should be respected. But hey, respect, morality and social uprightness are not exactly the typical American society’s strong points. you guys are ‘free’.
“You either approve of it or you don’t.” That’s a great false dichotomy. I didn’t know these feelings of indifference I have about the image were actually an approval or disapproval.
I agree with Colm’s brilliant logic. There are certain views we simply can’t tolerate if we’re to remain a free and open society.
Fortunately for the rest of America, the constitution that gives you the right to comment here also gives others the right to have intolerable views.
As Bill stated, you don’t get to be selective. What we can and cannot tolerate is subjective and could easily turn on you.
Comments like this further illustrates the pervasive nature of socialism. These arguments for censorship threaten to rob us of the very freedom they allege to protect.
Drew, I think Adolf was being sarcastic.
Good call AB,
I suppose I have seen enough knuckleheads who aren’t kidding about this subject lately that I am quick to defend. the proposition of censorship, largely driven by the current administration frankly scares me.
Adolf, I’m pick’n up what you are laying down…its just taking me a while
“the proposition of censorship, largely driven by the current administration frankly scares me.”
Eh? Examples please?
The constitution does not give you the right to comment here or any other blog. Flickr has no responsibility to free speech or an open forum. Your speech is protected from govt retaliation or censorship. Private entities can censor your comments or photos without even giving a reasonable excuse. Flickr can censor all it wants, but it does so at the risk of losing its customers.
That’s the purpose of posting an article like this: To warn people that there are private entities that are censoring their users.
I don’t think the purpose of this article had anything to do with Constitutional infringement, but rather to illustrate how Flickr is taking political sides and hiding behind false claims of DMCA issues.
I mildly agree with Bill. Our President *should* be respected. But government has gotten too big and too out of control in the last two decades and the current President is expanding government over ten times that of the previous President. It’s become a tool to use against the people, rather than a legislative body of the people. I think people are justified and well within their rights to say as they please.
I just wish they’d choose a more intelligent, reasoned, and researched approach, but I suppose you have to have those striking signs to get people’s attention before you can educate them.
There it is. Socialism.
WTF does this have to do with socialism other than being the standard talking point for the anti-Obama crowd?
It has everything to do with it, because one of the first things to go in a socialist state is freedom of speech. The person above that mentioned “socialism” did so as a means of bridging the issue to an overall problem with the current administration.
You might think the two have nothing to do with each other, but those of us with even a rudimentary knowledge of history and an IQ above the ability to breathe can see the trends that will lead us into a socialized state. Control of popular media is an essential part of that and, much as it pains me to say it, Flickr is a popular media outlet.
I know, it sounds like a bridge to far for you Scott, but just wait until the current Administration passes any one of their 5 current bills concerning control of free speech on the internet. It might not concern you now if you’re in favor of the current Administration, but history shows that governments that gain too much power over free speech are bound to become oppressive… and I don’t know about you, but I’m seeing a lot of copyright violations flying around nowadays, especially on public domain images that are critical of the current Administration.
For the record, this is coming from a registered Republican – the socialism debate has gotten to be outright hilarious. I don’t particularly agree with Obama and am not a fan of his and the democratic congress’ approach to securing better healthcare for the people of this country (which isn’t to say that this should not be a goal), but Obama has not implemented the programs that would increase the size of the government, because people are standing up and speaking out against it (even if they’re using a misguided approach to doing so).
The kicker is that a man who ran under the flag of the party that is against extending the power, and excessively growing the size of the federal government actually accomplished both of those feats with the full consent of the very same people who are protesting the proposals of Obama. Additionally, these same people sat mute while proposals far more egregious and unconstitutional than government expansion were acted upon by “their” government.
It comes down to one one simple thing: money. Don’t for one second think that most of these people really care about the principles this country was founded on or really understand complicated political philosophy. They don’t care what the government does as long as it doesn’t affect their pocket book negatively.
Back to the issue at hand: Flickr is a not a government entity and are not bound by any free speech laws. They can censor as they choose. They chose to censor in this instance and it was a seriously dumbass thing to do.
Jack. Seriously. You need to learn the difference between “socialism” and “socialist democracy”. Here, LMGTFY: http://answers....14111215AA5UBRP
Australia, Canada, France, Sweden the UK, and most Western democracies are to some degree socialist democracies, far moreso than anything proposed by this administration. Do you honestly think their citizens are lacking in free speech?
We’re not intended to be a democracy, we’re intended to be a representative republic.
Don’t lecture me on the difference in definition.
I’m amazed at the lack of education in your country. Simply baffled.
Between the KKK, the religious right, the “Birthers”, the tea-baggers and the Rush Limbaugh/Bill O’Reilly/ Glenn beck worshipers, I think there may be an average of a grade 2 education level.
You seem to have no understanding of the impact your comments/actions are having on your country, its morale and the respect given to it by the rest of the world.
You voted, your members lost, and because of this, you are willing to rebel, fight, kill other people because you are not happy with the outcome?
You want to live in a democracy? Well then accept who the people voted for and either
a) leave the country if you are not happy with it
b) wait for the next election (and prep for it).
Why spew all this hatemongering and intolerance towards others? The republicans in the US are sliding down a slope and if you were ever so inclined to read a newspaper from another country to see how the rest of the world perceives your once mighty nation, you might stop and wonder what the hell is really important in life?
Go spend some time with your family and kids, go camping, focus on furthering your education. Do something more positive than watching all the hate spewing and heavily opinionated idiots on TV/radio/internet. Are you ever happy after you listen/watch them? How were you 10 years ago before they became your daily recipe for hate? I’m willing to be you were more happy.
Anyways, call me whatever you want because I know I will be labeled something for speaking out against your leaders but stop and think about why you are doing what it is in your life right now and ask yourself if you are really happy. If not, maybe, it’s time to make some changes.
I say this because I’m fully guessing that at this rate, there is likely to be some kind of 2nd civil war with the way things are getting out of hand in your country.
Good luck
Drew,
You are right in your interpretation of free speech. Flickr’s actions here are wrong.
But they have no relevance to the policies of the Obama administration, which has done nothing but support free speech. It proves that to its own detriment by letting raving angry mobs into town halls. Compare that with the last administration, which staged political theater by screening which participants were allowed into public events.
You and others like you who think that (a) Obama is even remotely socialist (he’s a neoliberal capitalist), and (b) socialism and fascism are the same thing (er, remember, Nazis imprisoned and killed socialists) are the real knuckleheads.
That said, I do not believe it is not censorship to suggest that you and the rest of the angry mob should try learning something about public policy, economics, and political science before opening your mouth.
Actually, he’s closer to a fascist.
Fascism: A governmental system led by a dictator having complete power, forcibly suppressing opposition and criticism, regimenting all industry, commerce, etc., and emphasizing an aggressive nationalism and often racism.
Keep in mind that dictatorships typically have an oligarchical government. When you have a President that rules by Executive power, surrounded by 23+ Czars, all who have Executive power privilege, you have an oligarchy. The current Administration has supported Free Speech where it is beneficial to them… Most of us remember that Helen Thomas, who typically leans left, tore Robert Gibbs a new one, along with Chip Reid, for the current Administration’s control of media and the press just months ago (http://www.yout...h?v=s9WjX9oFmjE). And I don’t know how it is where you are, but my Congresswoman, Gabrielle Giffords, refuses to hold town halls at all and has been ducking her constituents at all costs. When she *does* attend events, she invites only her support list and has her aides escort out anyone they feel does not agree with the proceedings. People in town halls who are calling Congressmen and women “nazis” are being scolded by Obama and the media for saying “nazi” (I refuse to invoke Godwin’s Law), meanwhile these same Congressmen and women are calling the town hall protesters “angry, racist thugs.”
Obama is using the federal government to buy out, lock down, and regiment private industry (real estate, banking, automotive, agricultural, insurance, and now medical) and how they conduct private business. He utilizes an aggressive nationalism (although, this is kind of a given for any President) and race has been such an issue with this President on so many different sides of the aisle that I don’t even need to cite specific examples.
I would agree that he’s a neoliberal capitalist… if he pared back restrictions instead of mandating them, if he gave tax cuts instead of increasing corporate taxes (read the healthcare bill… pg. 146 Sec. 312 alone will kill private business and pg. 150 Sec. 313 alone adds 2-6% tax on large business), if he didn’t spend about a trillion dollars that the United States doesn’t have within a month of gaining office to pay out for services and businesses that did not need it.
If he was a real capitalist, he would have let the free market crash, be disassembled, and then rebuilt into a booming bull market without government restrictions. Bush is also to blame for trying to do this. Even Bill Gates, who voted for him and is a very intelligent capitalist, has conceded this point.
So how about you climb off your high horse, stop lecturing people on how they should hold their opinions, and take your own advice about learning.
Obama is a fascist and a dictator. Awesome! I guess then single-payer health care should sail through Congress without a hitch!
Except, he is having trouble getting members of his own party to sign onto his watered-down version of the health care bill, and has completely backed off of the public option — an essential part of his campaign platform (the one he was elected on, in a landslide). This is not exactly a characteristic of a “dictator wielding complete power,” but if it makes you feel smarter to use hyperbolic terms you have a Wikipedic, eight-grade understanding of, go for it.
Dictators don’t engage in debate. They don’t invite opposition members over to watch football. They don’t care about what anyone thinks and they don’t grant concessions to move the ball down the field. You can say a lot about Obama, but calling him a fascist is about the least applicable thing you could.
And, if winning the Presidency and both houses of Congress in a fair election based on the overwhelming failures of the previous administration is “dictatorship” then I don’t know what to tell you.
Unfortunately the right just can’t seem to take it on the chin and admit the simple fact that they decisively lost the last election. That isn’t fascism, it’s democracy.
“Keep in mind that dictatorships typically have an oligarchical government. When you have a President that rules by Executive power, surrounded by 23+ Czars, all who have Executive power privilege, you have an oligarchy. ”
Umm, your system of government didn’t change when Obama got into office. I *think* the same system was in place when Bush was President. :p
frank: Right on! Couldn’t have said it better!
I would like to talk to some of these crazy right-wingers when the next Presidential election rolls around and ask them if Obama was really the monster they make him out to be. Were they singing the same tune when Clinton was president? Have they ignored the large wars that occurred under the last president?
You’re right. Didn’t like Bush either. Size of government got out of control and he moved us decidedly further from a representative republic towards oligarchical democracy.
> (b) socialism and fascism are the same thing (er, remember, Nazis imprisoned and killed socialists)
Socialists kill and imprison socialists too.
All of the totalitarians (Fascists, Communists, Socialists) act as if that personal power is more important than ideology, so anyone who thinks that common ideology is protective is, at best, a useful idiot.
How many people here remember that is was Bush who started removing our privacy rights and enabled all the illegal wiretapping? Who else remembers that Bush/Cheney led us to War and spent billions upon billions to secure oil for our nation under false pretense? If you disagree with any of this, time for you to start reading.
We have only ourselves to blame for the mess we are in. Obama is only a janitor to clean up the huge mess Bush and Cheney made. He is doing his best to right a sinking ship and of course he is going to be criticized but don’t think that any of forget who really got us to where we are today… Yes, some of it started with Bill Clinton, but please don’t say that Bush did a great job with the 8 YEARS he was in charge of our country.
Well, then you go by the U.S. Constitution which has defined this in landmark precedent cases.
Times v. Sullivan — which gives you the right to insult public figures, who enjoy less protection from libel defense
Brandenburg v. Ohio — which stipulates that you would have to be inciting an imminent threat of violence to have speech restricted.
The joker picture hardly meets either test.
Incivility isn’t a violation of the Constitution or its interpretations by the U.S. Supreme Court. Thank God, or the courts would be clogged with lawsuits from anonymous thin-skinned geeks.
“There are certain views we simply can’t tolerate if we’re to remain a free and open society”
Man, talking about an oxymoron. Who chooses which views we can’t tolerate, the democrats? The original art was just a political satire expressing someone’s opinion that Obama is the wrong agent of change(chaos).
It is nothing more complicated than that. Stop throwing the race card out when it’s not warranted.
Settle down, Beavis. It was, like, a joke. The opening sentence should have tipped you off.
And BTW, an oxymoron is more properly accepted to be a contradictory *term* (eg, plastic silverware). A phrase that includes contradictory elements is not an oxymoron.
Perhaps an oxymoronical phrase? Grammarians?
Hahahaaa…First time I’ve seen a comment I wanted to reply to on here.
(I reckon it’s just a self-contradiction by the way)
Hey First-timer…parentheticals require punctuation too!
Good try Adolph but with the new generation but you just have to give up with punctuation, grammar and spelling.
They are just too lazy.
I think it might a paradox.
And by being partisan you close a portion of your mind.
“Fear mongering,” huh? Oohh… someone is saying scary words; let’s cancel that free speech thing.
THe bottom line is that the left is pushing to censor criticism of President Obama, but wants to allow the 8 years of criticism for Bush to go unpunished.
Vanity fair published the EXACT SAME picture of President Bush as the joker in 2008, but the liberals were not crying that it was fearmongering then. They want to destroy free speech and only consider something dissent when it is against someone liberals oppose, but when conservatives oppose someone it is somehow racist and fearmingering.
I do sense a tinge of censorship from the left on this stuff. People should be allowed to say whatever they wish, short of screaming ‘FIRE’ in a crowded theater because it threatens public safety.
The most crafty folks should be making an argument that photo threatens public safety if they really want to hide it from public view.
Yet on Flickr they STILL have 3 pages of images when ya search for BUSH+JOKER!!
http://tr.im/wQWb
Double standards!
Partisan? Sounds more like complicit to me. No difference between you and those who would muzzle against your own beliefs. It doesn’t matter what social or political policies you put your faith in after that. You support the one that has historically been the enemy of the people. That is your partisan side now.
You should be ashamed of your fall to the trash heap of political thought.
Arrington, now of you to stand up for Free Speech. Now if you Stop Banning Igor The Troll and the rest of JIDF supporters, we will know you really mean it!
Free Speech by Michael Arrington?
I’m not sure if I agree this is a polotical motivated issue like the post somewhat seems to imply. They made a big mistake, that is clear, but I suspect it’s just Yahoo thinking it would be easier to pull the image as hardly anyone would notice.
This is not Flickr vs Free Speech. It is Flickr’s bias between Bush vs Obama. But one thing, but making the image an issue, the image is all over the Internet.
And the President does look well in this makeover.
Yahoo fails as usual
“This is exactly the type of speech that our constitution is supposed to protect.”
Yeah, if the Government is censoring it, not if a privately owned company like Yahoo/Flickr are doing so.
I could get behind going after copyright laws, but growing a mob against Flickr? Not so much.
it’s the laws that Yahoo is hiding behind, and this is directly a free speech issue. As in, a defense against this is the constitution. This isn’t just some random TOS provision that Flickr is using to take it down.
Mike, you’re a lawyer, it is a property rights issue and got nothing to do with free speech. If I offended you here on your blog and you removed it, I have no right to claim that you’ve violated my right to free speech. No, your right to do what you like with what you own is entirely your choice which is inalienable, and I have no right to protest over your removal of my offensive comment.
exactly. except Flickr says they didn’t remove it because “they wanted to,” they say they were forced to by a DMCA notice. And that notice violates the free speech rights of the creator of the image.
different issues. you’re getting mixed up with the Facebook Nazi stuff, which has nothing to do with constitutional free speech. this doesn’t.
There’s no law that says they have to give you the real reason they took it down. Maybe they lied about getting the DMCA takedown because they don’t want to say they didn’t like the image and are pro-Obama. Perhaps they felt it would be better for them if they just lied?
I agree that Flickr can do what they want with their own equipment, intellectual property, database records, etc… Its their toy, you have to go to their house to play with it.
Mike, will the people opposing the takedown now agree that DMCA is not perfect?
Will those people rally around copyright law reform? Sadly, I doubt that will happen.
copyright has already been reformed. it’s just taking the law a little while to catch up to reality.
You can definitely make an argument that companies shouldn’t really be choosing sides like this, but at the end of the day, the Constitution protects their right to do so just as much as it prevents the government from stopping individuals from engaging in that type of speech.
Chances are photobucket would be happy to host the image, so it’s not as though the guy doesn’t have options.
yeah, no.
I completely agree, this is a company and -not- the government. There are plenty of other avenues if this guy wants to express his views. Maybe Arrington could even donate some more space, like one of his Ad blocks for a few months?
Hey!! Hey…. WHOA there.. let’s not resort to PHOTOBUCKET over this.
THAT would be a real tragedy.
*shudder*
http://imgur.com/
They are going down hill fast, the whole of yahoo…
The right to free speech does not apply to everything. For example you don’t have the right to free speech at work, or whilst using someone else’s products and services.
correct. But these rights do protect us from, among other things, fraudulent DMCA notices that have a chilling effect on speech.
Either they did get a notice to take it down under the DMCA (regardless of whether it was valid) and it’s not fraudulent (it’s just them being lazy), or they didn’t and they are violating the DMCA’s rules. In neither case is this about free speech, as far as I can tell…
As others have said, only the government itself can violate ones 1st amendment rights.
Well, then maybe it sums up to a question as to whether they’re lying sacks of shit or not. That’s not a bad question, either, when it comes to what I as a consumer want to do with that $20 a year I give them to host my photos. They have the right to exercise their bias; I have the right to shop elsewhere. As businesspeople they need to understand that as much or more than they need to understand Constitutional amendments that don’t really apply to them.
As an edit to my last comment: the 1st amendment would be relevant if you are claiming the DMCA violates those rights by forcing companies to remove free speech.
However, I think the confusing part of your post/comments is that you seem to be blaming Yahoo for the government’s DMCA laws suppressing our free speech.
I’m blaming yahoo for facilitating the chilling of free speech by cowering behind these ridiculous laws.
Michael, I’m a fan, but just admit that this has nothing to do with free speech
my God man, open your eyes.
How is obeying the law cowering behind it? When a company receives a DMCA notice, the person submitting the notice is swearing under penalty of perjury that their claim is true.
The whole point of DMCA is that you DO NOT PICK AND CHOOSE WHICH NOTICES YOU’RE GOING TO PROCESS.
The onus is on the original uploader to VERY EASILY SUBMIT A COUNTERNOTICE.
The whole point is to remove the third party company from copyright issues.
This whole post is ridiculous and appears to just be an attempt to trump up drama.
Yeah, I understand that now (after my edit to my comment). I just meant that it’s possibly confusing to other people how you’ve worded it in various places on this post.
Just make it clear: you’re morally admonishing Yahoo for playing along with the government’s violation of our free speech by obeying the DMCA to a fault (or lazily). Then I think you’ll see more people agreeing with you.
Even here in Brazil we are following the campaign by Alex Jones (www.infowars.com) with those posters. The government is upset.
This is not the first of it’s kind from flickr and in fact there is much debate among flickr users for its (ironic terming) constant inconsistency of enforcing both it’s own community guidelines and copyright laws. Especially when it comes to the international community. They are going down a slippery slop with their general attitude over this.
Thanks for the post Michael. I know 99% of people out there could care less about the implications of this but, personally, I’m appalled. I hope a lawsuit is in the works.
michael says it clearly, “In the past Flickr has deleted accounts of users who are critical of President Obama, but as far as I know nothing like this was done to users who were critical of Bush.”
Clearly people at Yahoo/Flickr are bias, which is not what you want from your file storage site.
Lucky it’s not a file storage site, then, eh?
my _paid_ account was shut down with no warning over a complaint from a dude who also threatened to beat me up , and thats because i commented on one of his pics that it lacked taste.
flickr management & staff suck.
So what are the alternatives to Flickr that don’t need a spinal implant?
MA – The same flunkie that does this crud at Flickr also approves iPhone apps part time. I’ll lay down a five spot on that and one of us will collect at TC50. Deal?
That’s pretty rich, coming from you, Arrington. First you bash Facebook for leaving anti-Semitic groups online and then you champion free speech for a Flickr user?
You’re the John Kerry of tech bloggers!
Guess what: both companies are completely in their rights to leave the images/groups up or to take them down. Both companies are violating ‘free speech,’ in some sense, if they take them down.
no, that’s an easy emotional rant to make but there’s no logic there. The Facebook/Nazi stuff isn’t about free speech rights. It’s about Facebook’s TOS. I always agreed Facebook had the right to leave it up or take it down, I just argued that they should take it down.
In this case there are clear constitutional issues.
see my comment above:
“exactly. except Flickr says they didn’t remove it because “they wanted to,” they say they were forced to by a DMCA notice. And that notice violates the free speech rights of the creator of the image.
different issues. you’re getting mixed up with the Facebook Nazi stuff, which has nothing to do with constitutional free speech. this doesn’t.”
Neither has anything to do with Constitutional free speech…
Let me be more precise: the DMCA notice is clearly unwarranted and would never stand up in could. (Or it least it shouldn’t. Whether it would or not is a separate issue.)
Flickr is being chickenshit by a) taking it down and b) by using the DMCA as their excuse. But that has very little to do with the Constitution. Flickr is not a public forum. Free speech need not apply.
This is all about egregious use of the DMCA and what is or isn’t Fair Use. And while the first amendment may be tangential that, to paint this as a “Constitutional Free Speech” issue is disingenuous at best.
And regardless, I stand by my Facebook/Flickr comparison. That is TOS and this is DMCA, sure, but you’re still cherrypicking your ‘Free Speech’ positions poorly.
“…stand up in could” = “…stand up in court”
no, i believe I’m picking them very carefully.
Brendan is right. This has nothing to do with free speech. The First Amendment states in relevant part “Congress shall make no law…abridging the freedom of speech…”. That is not what happened here. Flickr is a private (non-governmental) entity. I can do what it wants with respect to what people post on its website. Having said that, what it did here is pathetic. I’m canceling my account.
Flickr’s not doing it because they “want to”. They’re doing it because the DMCA is “forcing” them to.
Great to see a mention (and more exposure) of the EFF.
Mike, don’t you understand that “freedom of speech” only applies to liberals? See, that’s you’re problem, you think that there is some even playing field, but that just wrong. Now, do the right thing and send all your personal records to the White House so they can sign you up for a re-education program and “free” care.
For anyone who isn’t convinced do a simple search on Flickr for “Bush Hitler” or “Bush Stupid.”
but also do a search on Obama… there image in question can still be seen.. along with ton’s more.
yeah, nothing wrong with http://www.flic...und/2253224807/ I guess.
How about if someone sends Flickr a DCMA notice for the Flickr logo they display on the main page. Wonder if they would comply immediately and remove it..
Bad example. The Flickr logo was not uploaded by a third party.
ok. How about Carol Bartz’s family vacation photos. think they’d just pull those down because they have to?
I’m not familiar with that person, but I thought we were discussing this Obama photo?
Sorry, I just realized you mean their CEO. I have no idea how they would process that DMCA request, since I’m not a lawyer and I’m not *their* lawyer. It would certainly be interesting to see how they responded, but we can’t exactly *imagine* how they would respond and assume that our imagination is the truth.
unacceptable.
I’m impressed with your view on this. I’m assuming you’re a liberal… I don’t know why, just seems like most of you guys are. Anyway, thanks for being right.
Why is it encumbant upon Flickr to fight the notice? Do they have history of fighting DMCA notices and this is an exception?
I don’t see the free speech angle. Flickr is private and can make the decision. They don’t have to fight a take down notice, no matter how frivolous. It may be a choice that some don’t like, but it’s their right to choose to fight it or not. Free speech is being infringed by the act. The people who like to defend the photo are free to post it elsewhere, and fight the next order with their own resources.
More importantly, Flickr is absolutely right to takedown the image per the DMCA takedown request. The way the DMCA works is that it doesn’t matter whether the distributor *thinks* the material is authorized, fair-use or not. The distributor is *required* to take it down, and then the original poster/uploader/etc. has the ability to file a counterclaim to restore. It’s not up the DMCA registrant to make the determination.
If the DMCA registrant started trying to interpret the validity of the claims, they open themselves up to making the wrong decision and then losing their protections under the DMCA. The way the DMCA works is that the registrant is a disinterested third party, and to maintain the protections, they don’t ask questions. That’s for the two parties involved in the dispute to sort out.
This article is filled with all kinds of indignation over the takedown, but the act of taking it down isn’t hiding behind lawyers. It’s proper handling of a DMCA request. Just because there’s tons of other material that may or may not be subject to DMCA takedown notices doesn’t mean they can just ignore this one.
right. but they “can” make the determination. And in this case not only did they not, they took down the whole page.
I thought the deal was:
1) I post something on “site”
2) You send “site” DCMA notice against my post
3) “site” sends me a note
4) I have the option of telling “site” No that item is not copyrighted or I am not violating their copyright
5) If I choose not to reply to “site” they take down my post. If I choose to reply my reply gives them legal cover and the rights holder in step 2 has to come to me.
This has definitely been a trend that I’ve noticed. I get emailed a lot of youtube videos about Obama and by the time I get to them, they have already been removed. It happened a lot over the course of the election and I lost a lot of faith in social media.
Good article. Keep ‘em honest Mike.
president Obama is best viewed in IE 8.
you don’t really expect Carol Bratz to give a sh** on freedom speech, the role of free information in modern society, corporate responsibility etc.
it scares me that some of you people are allowed to vote.
There are so many people in this country that are willing to abrogate their rights in order to silence dissent that it’s scary. The thing that’s most amazing is the same people that advocated for Bush hating are the same people that think this photo is wrong.
People, just stick with the ideals of the Constitution and defend free speech at all costs. Obama may be an a-hole socialist out to take all of your liberty and freedom or he may be your messiah — the fact of the matter is we have the right to portray him how we see fit.
“defend free speech at all costs” – except the nazi stuff on facebook. just give me that one exception.
Sure, as long as you give everyone else similar exceptions for whatever their pet projects are.
no, Nazis are an exception to the no exception rule. Avoiding another Holocaust is a little more than a “pet project”
Scares me too … when people say: “Freedom of speech? Like you and your colleagues systematically deleting comments that point out your lack of knowledge on topics? Don’t be such a hypocrite.”
You’d only be a hypocrite, if you deleted comments, and claimed that you were doing so because you got a DCMA notice to remove the comment … oh, AND, if those comments were clearly NOT in violation of DCMA, as they would be protected “under fair use and parody defenses”.
People leaving stupid posts … please stop! You’re wasting everyone’s time … and while you’re at it, stop voting too!
you have an underdeveloped sense of sarcasm
Bravo! And people wonder why some politicians garner so much support for their side.
Great post, Michael. It appears, however that most of your readers aren’t reading your actual words.
If they were it is quite obvious that the article is concentrated on the DCMA and their “supposed” actions of the take down, NOT Yahoo the company. If in fact they were involved, then yes that would question constitutional rights, because its obvious that they are not infringing.
Either way it’s just another instance where Yahoo’s political views are shining through with bright colors. BS.
Again, nice post!
Freedom of speech? Like you and your colleagues systematically deleting comments that point out your lack of knowledge on topics? Don’t be such a hypocrite.
Again, it’s not about the company Jason. It’s about the DCMA getting involved and requesting it be removed due to violation of a bull sh*t copyright claim.
Read the damn post. If Yahoo never claimed the DCMA got involved, then there would be no story about copyright.
He never said it wasn’t Yahoo’s right to take it down, because it is. just like it’s his right to take down your ignorant post. However, the DCMA isn’t coming in telling him to do it, which is a copyright issue.
As Michael said…”and you people are allowed to vote”
Again, why does Yahoo, have to fight the claim? Why is it their responsibility? What makes anyone think they should expect Yahoo to fight such claims? Do they promise to fight these notices on everyone’s behalf?
Seems to me you and Michael are correct about the DMCA and it’s mis-use. Your expectations for Yahoo are misplaced.
This might be an opportunity for a little side business for you. Set up your own site that only accepts pictures and videos that have been taken down because of DMCA notices. That way you can fight the fight you’re asking Yahoo to take on for you.
I’m sure it will do gangbusters the way Catholic black listed books do.
It’s not their responsibility at all. The original uploader simply has to file a counter-claim, and I bet (haven’t had a photo yanked, so I’m not sure), Flickr even sent him the requirements for that.
ONE EMAIL AND FREE SPEECH WOULD BE “DEFENDED”.
Guys . . . the parody issue isn’t what’s at play here. Obama can be tweaked ad infinitum because he’s the US President. But . . . the Joker imagery is copyrighted. Maybe THAT’S what Flickr was afraid of.
Jeff Yablon
President & CEO
[REMOVED IRRELEVANT LINK]
With signature ‘President & CEO’ your comment looks at least twice as smart.
i never understood the need for both titles, particularly in a startup.
“President” means you are in charge; “CEO” means you run the show; “President & CEO” means you are a roflrazzi-lover
I agree that, legally, Flickr is well within their rights. However, it is also painfully obvious they are selectively censoring in support of their own political preferences. When this happens on a wide scale (i.e., across services like Flickr, Google, etc.) and in one direction (which seems to be the case), then democracy really does suffer. IMHO, freedom of speech trumps partisanship – big time.
There is always the time-honored solution of a boycott. The don’t have to value even-handedness and we don’t have to visit their site. Simple.
Flickr is a company, not a government entity. Therefore, its users have no “free speech rights.” Read the First Amendment; it begins “CONGRESS shall make no law…”
I think it’s dumb that the image was taken down, and I’m not arguing with the DMCA angle. But freedom of speech and the Constitution have nothing to do with it. Nobody’s rights are being violated here.
Seriously? Did you just read the damn post.
How does freedom of speech have nothing to do with it? Yahoo is blaming the Digital Millennium Copyright Act on the removal of the image. Last time I checked that act was pasted by the government.
By saying that the image is a copyright infringement and violates a government act, thus removing the image, when it in fact does not infringe on copyright law, seems to question the right of free speech. Right?
“CONGRESS shall make no law…”
but congress did make such a law. The DMCA is being abused to do just that.
This is the only valid point you’ve made on this whole page, but it indicates that you should be railing against the government for creating this law, not all of the companies who have to comply with it until you do something to get it changed.
I swear Daxl is the only voice of reason on this entire page.
“choose” to comply, not “have” to comply.
Have you never heard the term “civil disobedience”?
It’s not only a free speech issue, it’s also about who owns the stuff that gets posted to Flickr.
Who is ultimately responsible for it?
The deep irony is that in interviews, it turns out that the creator of this image didn’t make it with a political motivation at all – and is, moreover, further left-leaning than Obama.
I *do* like Obama, and I disagree with the people using this image as a stick to beat him with – but I don’t think Yahoo has done the right thing here.
If nothing else, it tells all their users that they have precisely zero control over the content they upload to the site, and that their stuff is no longer safe.
By complying immediately with the takedown notice, and not standing their ground or fighting for the rights of their users, Flickr have effecitvely betrayed their community; something they worked long and hard to build.
The Flickr community; engaged, creative, respectful – was a rare thing on the intertubes. I wonder if this new ham-fisted, hardline approach will kill it off?
Yahoo is so whatever.
Flickr = cowards
I’m sure the President can withstand a little political caricature/lampoon without big bad Flickr coming to his rescue to protect his image.
if you’re that worried that his image and reputation can not stand up to a little makeover then its already over and trying to hide this image won’t help.
Flickr, Have some balls and reinstate the image on your home page with an apology!
This is the problem with DMCA. It forces the site owner to take down now, ask questions later.
Distinctions:
Flickr is accountable to consumers.
Government is accountable to the constitution.
Arbitrary business practices offend people.
Overreaching copyright “protections” offend the 1st amendment.
A DMCA takedown says you are guilty until proven innocent by way of fair use. But it’s easier to give in than to prove fair use in costly litigation.
Can someone say “chilling effect”?
Mike,
Thanks for reporting on this important issue. For many of us who spend a great deal of time in/on Flickr it’s super important.
There’s a long-winded debate going on about this case in the Flickr Help Forum. I of course can’t participate in that debate there as, ironically, I’ve been banned from the Flickr Help Forum. People can see that here if they want: http://www.flic...m/en-us/103784/
Apologies in advance for my own long winded comment here about the issue, but I feel pretty strongly about this issue on Flickr:
Ok, so here’s the thing. Flickr ought to have an obligation to at least put a modicum of effort into determining if a DMCA takedown notice is legitimate or bogus and they just don’t care.
Case in point, A few years back I posted an image of Michael Crook appearing on Fox News defending his position that the holocaust never happened. Crook had just baited a bunch of people on craigslist, posing as a woman wanting to hook up and then getting all of this personal information from all these guys (including married guys, their phone numbers, who they worked for etc.) and then posted all of this information on a website just to fuck with them. Pure maliciousness.
So I wrote a blog post criticizing Crook over this and along with it posted an image of him from his appearance on Fox TV. A fair use image.
Crook who did not hold copyright over the image issued a bogus takedown notice to flickr and they nuked my image, along with dozens of comments on it as well. The EFF later sued Crook and he had to publicly apologize as part of his settlement for all of his bogus DMCA takedown notices.
But the point is that Crook quite *obviously* did not hold copyright to this image. Even within minutes of getting the notice from Flickr Community Manager Heather Champ that Crook had complained and that Flickr was taking my image down I fired back an email saying that it was bogus and pointing her to a story on boing boing about the bogus takedown notices Crook was issuing. You know what Boing Boing did when they got the *same* takedown notice as Flickr? Nothing! Because it was fucking bogus.
But Heather/Flickr didn’t care. Like good little worker bees they simply deleted my image along with a barrage of criticism against Crook by dozens of people because he told them to.
What makes it worse, was that after all this happened I badgered Stewart Butterfield who was running Flickr at the time for months to comment on my case and whether or not it was a mistake. Finally I got him to respond, And Stewart, while not admitting that my takedown was a mistake (which it was) admitted that it was in fact a *mistake* for Flickr not to have a way to restore deleted content.
From Stewart: “With respect to your posting of the TV screengrab, I don’t think it was a mistake to delete it, but I do think it was (and is) a mistake to not have a mechanism to restore that kind of deletion. (In that case, however, I wouldn’t have asked to have had it restored, since I don’t think posting video stills from TV shows that you didn’t create is what Flickr’s about.)”
Of course at the time Cal Henderson had tons of WOW screen grabs in his flickr stream, but I suppose that *is* what Flickr is about.
So here more than two years after Stewart said it was a “mistake” for Flickr not to be able to restore content, what has Flickr done to deal with bogus DMCA requests and restoring accounts? NOTHING. And what are they doing now to fix what Stewart called a “mistake”; in Flickr not being able to restore deleted content? NOTHING.
They need to be held accountable for these things.
By the way, if you want to see how some other firms deal with bogus takedown notices. Look at how WordPress responded when Canon issued them one trying to get them to take down the parody “Fake Chuck Westfall” blog. Someone really should get a copy of WordPress’ letter back to Canon to show the amateur hacks in the Flickr Censorship Division how bogus takedown notices ought to be dealt with. Here’s how WordPress responded to a bogus takedown notice from Canon over a parody blog:
“Hi Douglas,
We have received your complaint about fakechuckwestfall.wordpress.com.
The owner of the blog has removed the Canon logo.
We consider the privacy complaint about the names of Chuck Westfall’s wife and child void since Mr. Westfall mentions them in his own bio.
We also reject your other complaints regarding the blog being confused with an official Canon site given that the blog name and URL contain “Fake”, the about page starts with “Hi, I’m not actually Chuck Westfall.”, and the tone and content of the whole blog are clearly satirical.
Regards,
Toni”;
That’s how you deal with BS takedown notices. Not by throwing your users under the bus.
Of course this current case is made worse because it’s politically sensitive. But even more care should be taken with either real or bogus DMCA takedown requests over materially that is politically sensitive.
And if you don’t think that Flickr staff is politically biased, I’d encourage you to use Google to search how many times “Obama” is mentioned on the official Flickr Blog vs. Bush. Obama’s been mentioned 699 times on the blog (and many of them in glowing terms) vs. 5 references for Bush per Google. Even though Flickr’s lived longer under the Bush Presidency than Obama.
Now I have no problem with Flickr Staff expressing their political views. When Heather Champ tweets that she had a most excellent dream that Obama had made her technology Czar last night that’s her own personal channel to say whatever she wants about politics. But when staff political bias turns into censorship I think that’s wrong.
Again, sorry for the long rant on this.
Excellent reply. Worth the length. Thanks.
wow. amazing. wordpress gets it totally right. http://fakechuc...ice-from-canon/
I’m not a lawyer, and I read more on Wikipedia than from the statute, but I think you’re confusing the issue by pointing to this WordPress case. WP wasn’t responding to a DMCA take-down notice – you’ll notice that paragraph 3 of the letter specifically references the Lanham Act (15 U.S.C.: trademarks, not copyrights) and none of their four points claim for any copyright infringement whatsoever.
The problem that most people miss about how Flickr has responded is the importance of the Safe Harbor that the DMCA creates for Flickr. If they’re found to be in compliance with the law, they’re off the hook for liability for copyright infringement. If they’re found to not be in compliance and there is an infringement, they could have a liability.
From my reading since college about copyright and the DMCA, it seems most common for companies to unquestioningly comply with notices that substantially meet the requirements of a DMCA take-down notice. It’s very important to separate the argument between whether Flickr’s decision to do this, as many other companies do in the current legal ecosystem, is appropriate from the merits or faults of the DMCA. Many other people have also noted in comments that if Firas simply would have filed a counter notice, the content likely would have been restored within two weeks. Other commenters have pointed out that Flickr/Yahoo! is a for-profit company: expecting Flickr to assume liability when they don’t have to, especially when there’s a clear recourse for content owners, is unreasonable in my estimation.
The DMCA’s Online Copyright Infringement Liability Act has many detractors, and the intent of congress was clearly to take-down first and ask questions later, but I think on the balance it does more good than bad. Without these protections, a much more harsh environment might exist as Service Providers would have to make their own rules to limit their copyright liability where the law otherwise does not. This is one of the few parts of the DMCA where reasonable public policy was made. I was excited to see that Wikipedia notes a case (I didn’t read it yet) where the Misrepresentations section was successful. Like it or not, this is the check-and-balance that makes the situation livable. To make the system work, the public has a responsibility to hold people accountable by filing counter notices and suing for misrepresentation if necessary.
By the way, in reference to the 699 Obama refernces to Obama on the Flickr blog vs. the 5 references to Bush, my friend Andertho pointed out that if you look at the 5 hits on the flickr blog for “Bush,” 1 refers to a “bush of ghosts” and the other 4 are references to Bush Sr.
There are literally no hits for G.W. Bush, our most recent ex-president.
Maybe someone ought to point this out to Yahoo CEO Carol Bartz who personally donated money to both W and McCain and who is currently co-chairing the finance committee for a Republican gubernatorial candidate in California, Meg Whitman. I wonder if Bartz is aware of the political bias with which Flickr is run.
By the way, I voted for Obama and am a registered Democrat. I’m also a Democrat who believes in free speech though, even when that speech is critical of my President.
after the election, he’s OUR president. I wish people would respect that fact, even if they are completely critical or totally supporting of the sitting president.
Oh the irony, Flickr staff has now shut down the thread on Flickr where users were complaining about censorship. I suppose one way to fight accusations of censorship is simply… more censorship.
http://www.flic...e3/#reply675569
Thomas
I’m guessing we won’t be expecting a Part 2 to your photowalk with Scoble and Heather Champ?
Kevin, nothing personal against Heather. I’d be happy to discuss these issues with her personally, have a drink with her, do another photowalk with her, etc. I think she’s a talented photographer actually.
We are probably just diametrically opposed philosophically on my views about uncensorship vs. her views of community shaping and the role that censorship ought to play in that.
My problem has more to do with Flickr policy regarding their censoring content, especially in light of the fact that Flickr has no ability and won’t create an ability to restore deleted content. To the extent that Heather heads up the Flickr Censorship Division some of this might seem more directed at her personally. Nothing could be further from the truth.
Yeah, it was more tongue in cheek than anything.
I’d be surprised if you got the, “discuss the issues, have a drink, photowalk…” if she employs the same tactics to deal with criticism that the rest of Flickr does.
It’s about people who only take legal orders to justify just about anything. we have heard this excuse before, didn’t we?
Yahoo/Flickr cannot and does not have an option to fight a DMCA takedown notice. They must comply. If the author files a counter-claim, they must restore. Period. End of discussion. The real issue for the politically charged is “was there actually a DMCA Takedown Notice issued? Or was it a political move hidden behind a claimed DMCA Takedown Notice.” Does a company have to provide proof that a Notice was issued?
of course they have an option to disregard a DMCA notice. as someone said above, what if I sent them one demanding they remove the flickr logo because I own it? Would they comply and then file a counter notice? of course not. they’d disregard it. as they should have with this obama image.
I’m surprised to learn that Flickr’s DMCA takedown/restore process isn’t as evolved as YouTube’s. When YouTube receives a DMCA takedown notice, they remove the referenced video with a notice stating that’s the reason it was removed and, most importantly, by whom issued the takedown notice. They also provide a link on how to file a counter notice, which is fairly trivial. Upon receiving the counter notice, If the originating party doesn’t file a lawsuit in 10-14 days, YouTube reinstates the video at the original URL with all comments/ratings/favorites intact.
The real question is, does Flickr have a process for restoring a photo/original URL/comments/favorites after they’ve received a proper counter notice?
YouTube isn’t perfect either: I had a takedown notice that didn’t state what content I was was (supposedly) infringing on. Even though such a takedown notice is invalid (regardless of its merit), they removed the movie. Filing a counter notice didn’t help: The party who had filed the takedown notice simply reaffirmed their claim. Looks like it’s a fully automated system on both ends (i.e. YouTube and whoever it was who was scanning for copyright violations). Would love to see a comparison of how different companies handle takedown notices; this should be a factor to consider when deciding where to host your files.
The thing is, this is a DMCA issue. It’s also a free speech issue, but that’s not flickr’s fault, it’s the laws. The DMCA does not say that if the use is later determined fair, you get to keep your safe harbor liabilty. It says that you have to follow the notice and takedown procedure, as well as a list of other requirements. The DMCA-proper response is for the person accused of infringement to file a counter-notification. There are some resources online to help with that, like chillingeffects.org.
The system hurts free speech, but flickr has to play by the rules of the system or be in trouble. Whether or not they like the system, I don’t know, but this action doesn’t demonstrate that one way or another.
flickr should have done the right thing.
And some of us here are arguing they did the right thing. Filing a counter-notice is trivial.
You would have a case if Flickr refused to put the image back up. Are you trying to imply that they would refuse? (That’s another real question–like my comment below)
I don’t see how you can justify to yourself that you’re taking a meaningful position on the subject when you hide behind legal minutiae. Laws often need to be broken by courageous people. Our entire war of independence was “unlawful.”
Ok, then the uploader needs to “break the law” by claiming rights and filing a counter notice, then defending his claim in court. It’s HIS responsibility to defend HIS rights.
I’m not hiding behind minutiae.
You are arguing here that whoever filed the DMCA takedown doesn’t represent a legitimate copyright holder to the image.
However, the takedown notice requires the party to *state* that *under penalty of perjury* they are authorized to act on behalf of the owner in filing this complaint. It isn’t merely implied–it must be stated in the takedown notice.
At first you were just saying they should have checked with lawyers and self-determine the validity of the claim. It has since been pointed out to you that the DMCA doesn’t allow for that, so now you’re arguing they should have broken the law… Over this???? This isn’t some insanely important piece of American History, and its comparison to the war of independence is laughable, IMO.
If the takedown wasn’t legitimate, this will get sorted out with a counter-notice and the image will reappear in a couple of weeks. Is that so bad?
The only thing that could prevent the image from reappearing is the filing of a lawsuit by a copyright claimant or a court order of some kind. How far are you willing to push this idea that Flickr should break the law in this case? Let’s say there is a court order–in your opinion does Flickr needs to be “courageous” and violate a court order? If so, how is it that this image in particular rise to that level of importance?
Filing a counter-notice may be trivial, but it may not do you much good: I filed a counter-notice when one of my movies on YouTube was taken down (and the takedown notice didn’t bother to state what I was infringing on). A few days later I got this:
“In response to your dispute of a video identification match, FOX reviewed your video xyz and confirmed their claim to some or all of its audio and visual content.”
That was it. No recourse, short of hiring a lawyer (which wasn’t worth the trouble for me).
Don’t know how Flickr handles takedown notices, but there may have been a similar situation?
Read the text–it sounds like the video was taken down by YouTube’s video ID match system, not by a DMCA takedown notice.
The counter-notice system I describe in other comments is there for DMCA claims, not infringement YouTube thinks it found on its own.
You can argue that it’s just *easier*, *safer*, *prudent* to immediately take down anything that’s asked via DMCA but don’t say that Flickr *must* take down… it’s not true. They only must take down if they want to maintain their safe harbor provisions — isn’t that right?
Of course they don’t have to do either — we all understand they are a private business and can make their choices, just like their users can choose to go elsewhere. But Flickr’s freedom to choose what to censor is not what’s being argued — what’s being argued is their moral character to do what they want to do and whether or not as a community their behavior deserves a response– like calling them out and trying to find alternative services.
From a pragmatic business standpoint it might be best for them to take everything down that’s complained about… but the point is that it’s a cowardice and prejudiced act to take when common sense tells almost everyone that they had no worries about whether this item was truly infringing.
And if Flickrs lawyers are actually telling them that the risk is too high then they need to go hire the lawyers Wordpress is using. They too are cowards and don’t value the trust of Flickr’s users.
I think Michael Arrington nails this one.
David,
I don’t know any details about the Wordpress case other than what Thomas posted above, but from those details it appears that the takedown request received by Wordpress was not a DMCA takedown notice, since the DMCA deals with copyrights, not privacy or market confusion. Notice that the Canon logo (the only possible copyright claim implied) *was removed.*
Exactly.
Michael–don’t you understand the DMCA? Flickr, YouTube, etc wouldn’t be able to exist without it. It would be stupid to ignore it. They are only given safe harbor if they comply with the takedown notices. The real issue is whether the person issuing the notice actually owns the copyright (as they must affirm when giving the notice).
If the Flickr user that uploaded the image actually has the right to use the image, he/she can file a counter-notice and the image will go back up. If they don’t have the right to use the image, then they shouldn’t have used it in the first place. Duh!
How is this hard? (That’s a real question–I don’t get it.)
Michael,
What about this– the counter-notice? Is that true? All the user has to do is file a counter-notice?
Somehow I doubt that flickr.com MUST REPOST — seems like as a private organization they can say, “meh — we don’t want the controversy (esp. because we don’t like the content) and so we just won’t repost the content. Go elsewhere if you want to post it”
Can’t they just do that? Does a “ounter-notice” require an ISP to rehost material, based on a non-paid service arrangement like Flickr’s?
David,
The picture would go back up between 10 and 14 days after Flicr received the counter-notice unless the person who filed the takedown notice files a lawsuit.
So, yes, the DMCA *requires* Flickr to do this.
To clarify, yes, the DMCA *requires* Flickr to restore the picture to its service sometime within the Day 10 through Day 14 timeframe (except if there is a lawsuit that gets filed, as mentioned above).
Did TechCrunch try to reach Yahoo! for official comment on this? Doesn’t Yahoo! typically look at all the DMCA cases they get and decide if they’re valid or not?
Haha, the comments are more interesting then the post. It’s fun seeing how Arrington shuts down the uninformed commenters, one by one.
Haha, the comments are more interesting then the post. It’s fun seeing how Arrington shuts down the uninformed commenters, one by one.
I agree the image should have been allowed to stand but those who cry foul because Bush was subjected to similar abuse DON’T GET IT. There is a HORRID history of racism in this country and this image reminds many people of the worst type of racism when blacks used to be in the movies with painted faces, REGARDLESS OF THE INTENT OF WHOEVER CREATED IT. Whites have never been subjected to the racism that blacks have and as a result many will just NEVER get the difference.
That said, I believe it probably should have been left up because there is no more important element of free speech than to protect vile political speech.
racist? how is this racist? Because Obama is black and the image is clearly negative towards him?
is this racist? http://www.vani...h-as-joker.html
When in doubt on disagreeing with Obama, cry RAAAAAAACCCIISST!! Unfortunately for those folks, it’s starting to be the cry of the boy who cried wolf — people are getting this ruse, and ignoring it.
I don’t believe the image itself is raciest. I think it was a bored kid doing something he though was funny. Now is the image being used as a vehicle to support raciest views. Definitely! To me its all about context. Its unfortunate that this kids doing something as a joke got pulled into something he probably won’t fully understand for years to come.
dude. we can’t have meaningful conversation if the race card gets played every time.
omg. that card is so played out
I love how you think a 20 year old college senior won’t fully understand this for years to come. I’m willing to bet, based on your spelling/grammer alone, that he is probably more intelligent than you…
David-
So because George Bush isn’t black, this was fine http://www.vani...-as-joker.html?
If we have to temper criticism at an elected official based on race, we’re standing on shaky ground. Yes, there is a terrible history of racism in the US and there are certainly remnants of that. But, doesn’t saying that we need to treat the president differently because he’s black simply perpetuate those biases?
I just love how virtually EVERY satire/cartoon/criticism of Bush was “fair game” because it was free speech and being an elected official opens him to that criticism. (So, we’ll just draw him as the devil – no problem!) But, put Obama in the makeup of a movie character (not putting makeup on him because he’s black but to match the makeup of the character in the movie) and that’s out of bounds and we need to stop.
I also agree that the option belongs to Flickr to leave it up or take it down (they should have left it up). The real issue is their hiding behind the DMCA. If they wanted it down, say so. They have that right. But be honest about it. As one of the companies often cited in many “web 2.0″ discussions, they should really understand the importance of transparency.
I think the reason that this image upsets more people than the Bush image did is unrelated to its actual content. It’s not about race, either– if the joker was black, I believe the response would be the same.
The issue is that this image, and others like it, are being used by people calling Obama a Nazi and a socialist, etc etc. People who are loud and obnoxious and come as close to abuse of free speech as I can imagine. Obviously these people are not the ones commenting here– I’d like to think they are too backwards to know what blogs are.
As far as I can remember, the Bush joker image was not used in such a way. That’s the reason Bush images were “fair game”: because no one took those images and stood outside a town hall meeting where Bush was giving a speech proclaiming he was a Nazi.
Was flickr wrong to take down the image? probably. I am not arguing about free speech, or DMCA or any of these other topics– everyone here has the right to do what they want to do, including the protesters. But what I am saying is that, unfortunately, these images (much more than any Bush parodies) are used to propagate blind hate, and that is the reason people are angry.
(And yes, I do mean blind hate. Disagreeing with the opinions of the president and proclaiming your opinions out loud is one thing–even calling him an idiot!– but calling him a Nazi because of it is quite another, and shows not only a complete misunderstanding of Obama’s positions, but a frightening disrespect for how bad Nazism actually is.)
“As far as I can remember, the Bush joker image was not used in such a way. That’s the reason Bush images were “fair game”: because no one took those images and stood outside a town hall meeting where Bush was giving a speech proclaiming he was a Nazi.”
Wow! You have a very short memory. The event you claim never happened occurred several times during Bush’s eight year tenure.
The relevant law is 17 USC 512 (c).
While Yahoo can certainly evaluate whether or not the form is legitimate- the proper information is provided, the person claiming to be the copyright holder is actually the copyright holder, and so on- there isn’t a way for them to evaluate whether or not the use is fair.
if there is no infringement, there’s no liability to yahoo no matter how you look at the law.
in other words, there is no penalty for not complying unless the material actually infringes.
yahoo is an elephant that acts like mouse. for god’s sake, this is not the tiny shop on the next street. they are huge company, and still (it seems not for long, though) one of the most influential corporates in the Internet, America and world wide and they can take a side. they must take a side.
Mike, would there not be infringement on a couple of layers with this ?
1. Time’s registered trademark
2. The original photographer’s copyright on the original Obama photograph and any rights that Time paid for use of it (unless he was a staff photog).
Firas Alkhateeb has no claim to copyright because he ‘pirated’ the original photo and magazine cover.
How is the non-licensed usage of the original any different from yesterday’s case of Colorado photographer Louis Psihoyos who has filed a copyright infringement suit against Apple regarding his iconic “500 monitors” (aka “1000 TVs”in the Apple form) image taken in 2005 which a third party to apple added another 500 monitors to)?
Regardless of whether it’s Obama or Bush, where is it written that the right of free speech overrides similarly protected (by law) intellectual property rights of the creators of the original images.
Much as I love TechCrunch, it seems to be a haven of Vulcan mindmeld that zaps a death ray at anyone who stands up for IPR (which incidentally costs individuals as well as the dreaded corporations a lot of money).
Let me turn it around and ask how quickly you would have fired off legal threats against someone who would have taken a photo of an earlier CrunchPad prototype, photoshopped it with a slight alteration and posted it all over the Internet as their own creation, or worse, built it and got it to market first.
Or perhaps worse, if someone had photoshopped a photo your head onto a photo of a guy in a sauna with a micropenis and plastered that everywhere online and people were believing it?
Is this any different from the Canadian model who’s successfully sued to trace the name of the blogger who’s been slandering and defaming her all over the place.
Why should the Internet be exempt from libel and defamation laws as applied to radio, television and newspapers, and similarly with copyright and trademark laws that were created for a reason.
Let’s see how cavalierly the IPR ‘anarchists’ would whine if something they had created, and depend upon for their livelihood (and access to the Internet) was, essentially, illegally hijacked in the same manner.
This twisted tone of presumed entitlement is almost as annoying as listening to the Kardashian sisters speak.
you’re all mixed up. Listen to some Weird Al Yankovic and look at some Andy Warhol paintings while you ponder fair use.
You might want to double-check with Weird Al and the Warhol Foundation on that one. Neither fair use anything. They both GET PERMISSION. Fact.
Actually, T.R. Weird Al doesn’t need to get “permission,” he need only pay licensing fees for the music based on standard rates.
It’s not quite fair use, but it’s not quite “permission” either. You could get the mechanical license for the music and rail against the person licensing the track to you for all they care.
Secondly, with Warhol, it depends on the work. Some works he was sued over and settled royalties out of court, some he was not. He certainly didn’t “get permission” to appropriate images, though. At least not until after the fact.
Most famously, his Campbell’s Soup can, which was clearly appropriated from Campbell’s Soup, is seen as fair use as the courts believe the public isn’t so stupid as to believe the painting is for a competing product or an endorsement by Campbell’s.
Anyway, in all cases, Warhol’s works are still considered derivative works with their own copyrights. If anything, he’d have to pay royalties on the originals he appropriated into his work.
But! None of this has any bearing on the Obama/Time image, which is political in nature and is clearly protected under fair use.
Mike correctly, and unfortunately, repeatedly, is spot on when he points out that flickr should not be hiding behind the mechanics of DMCA notices.
Flickr’s team should weigh the validity of the infringement notice in a way that protects their users first (as the notice was clearly bogus), like a sane and fair company should, even though they are under no technical obligation to do so.
It most certainly would have avoided this shitstorm had they any humanity as a company.
A better example might be Negativeland’s U2 record incident.
Blah blah blah. You’re talking out your ass. Both Warhol and Weird Al GET PERMISSION.
Do they need to? It doesn’t matter. They DO IT.
I wonder if Yahoo would have taken this down if Shep Fairey was not getting his pants sued off for essentially the same use of an image. It seems like if the legal finding was so straightforward, that case would have been dismissed, but it wasn’t.
The question is, how hard will Yahoo fight for the legal rights of one of its millions of free users? I’m not surprised to learn the answer is “not hard.”
Flicker = liberal hippies
They have completely lost any remaining trust there was with this company.
Digital Millennium Copyright Act – company scapegoat since 1998 – then again if it wasn’t around they would just blame something else
Either way, I will buy the rights to this image for $100, give me a ring Firas Alkhateeb.