In case you’ve been under a rock for the last couple of months, the latest social media buzz app is Pinterest. Largely because of a lucrative and very wise affiliation with Facebook, Pinterest went from no name to household name in just a few days. Now many sites sport the red push-pin icon that allows users to “pin” images of “interest” (get it?) to their profile, which is then shared with the world.
The problem, or shall I say, the obstacle? You guessed it: our friendly, dated copyright law. Despite sites such as Google getting by with posting thumbnails of images thanks to a 9th Supreme Court decision (someone was finally awake to make a good call that day), that doesn’t mean that rights-holders are bananas about users posting copyrighted images to their Pinterest profiles.
How is this any different from Facebook? One photog who decided to scrap her Pinterest account thereafter, noted that the EULA for Pinterest puts more liability on the users than Facebook. So what does this ACTUALLY mean?
Nothing at all.
Let’s be honest. No one (not even Supreme Court justices) read EULAs, which leaves them legally binding, but realistically toothless. In other words – sure, a photog whose images are posted on someone’s Pinterest profile without permission might have a greater legal leg to stand on to take action against the infringer than he would were the photo on some other social media platform such as Facebook. But in reality, there’s no difference.
Here in the land OUTSIDE the courtroom, we share because we are tribal animals. Sharing is hardwired into our DNA. The ways in which we shared are dictated by the means readily available to us, not legalese pasting into some banal EULA. Can’t say as I’ve ever read an EULA unless I was searching for all the legal loopholes the company (here’s lookin’ at you, Apple) likes to sneak in there.
Can rights-holders still file suit? Of course. But once again, people need to understand the enormous rift between FILING a suit and WINNING a suit. While anyone who’s ever had to rely on legal proceedings well knows, thelaw is a costly avenue for resolution. So the idea that a photographer can merely wave a magic rights-holder wand and the infringer’s account is depleted of a hefty settlement is complete crap at best and a dangerous but popular misconception at worst.
The best rights-holders can hope for is the opt-out of allowing Pinterest users to snag the photo for their page. While the tradition for intellectual property has been either to decry all unauthorized usage while doing nothing or making prevention of infringement criminalize all (even legit) users, it might be time for rights-holders to take a few minutes and PREVENT infringement instead of criminalizing and finger-pointing.
And that’s only if they think that Pinterest will somehow hurt them. (SPOILER: It won’t). Since when is exposure bad for photographers? I know I’d sure hate to see one of my blogs cut and pasted all over the Web for millions to read. I’d much rather waste hours each week trying to pull in and maintain the measly readership I currently enjoy. That’s much more effective.
Just as rights-holders of other media, photographers (and rights-holders who just own the copyright on images) need to ask themselves some important questions in regards to sharing and exposure.
1. Is it hurting you (or anyone)?
2. Are you losing money because of it?
3. Do you honestly think, after the music industry not only ruined their already shady rep by filing pay-up-or-else lawsuits, and STILL ended up taking huge losses in legal fees, that the sue-happy model is the way to make a living as a content creator?
No? Well, perhaps it’s time to let Pinterest do its thing, and – god forbid - actually enjoy the kind of prodigious and harmless sharing it represents.
Late last week, a man selling illegal access to the Internet got twenty years and about a zillion dollars in fines. This presents a grey area in my opinion, despite rights-holders and many courts considering it quite black and white. When it comes to downloading songs, only the music industry vehemently calls sharing “stealing”. And they do so as if this simple appellation answers all questions of right and wrong – guilt or innocence.
Of course, this guy made a good bit of money from selling devices and information that allowed end users to make cable modems access the Net without the monthly fee. But does the punishment fit the crime? Sure, you could find murder cases all day long where the accused was sentenced with seven or ten years, and this makes twenty years for hacking modems seem horrid. But there’s little that passes for reliability with court sentencing. Just read the daily paper to find a menagerie of seemingly random sentences doled out for any number of crimes.
However, we should not confuse what this man – Ryan Harris – did with outright theft. He tapped into a service, not lifted a product. No one was less anything because of what he did except the few customers the cable company would have had if not for Harris’ inevitably cheaper hack. And this service he tapped into was unsolicited. That is: no one forced or coerced the cable company into laying fiber or coaxial cable. Is this not, then, similar to someone drinking from a stream that was re-routed (even at great cost) when he didn’t pay for access to that stream? Or someone selling discounted tickets to the local drive-in because his roof overlooks the screens?
But let’s not forget: there is a large difference between someone who makes use of unsolicited services illegally and one who profits from it. Were he blogging or podcasting about how to hack your cable modem to get free Internet, I would defend him to my dying day. But in this case, I cannot condemn either the cable company for filing charges or the courts for passing judgment.
However, the sentence still rings a little steep for someone who did not deprive anyone of anything. Did not trample on anyone’s rights. Did not cause anyone to suffer. No, he messed with corporate profits, and that is clearly a no-no in America – I get it. But let’s not confuse Harris with a hardened criminal, nor collude his crimes with the sorts of violent actions that normally warrant twenty years of jail time.
With the tag line “Every image gets it credit”, the service Pic Scout seems innocuous enough. It scours the Internet searching for evidence of its clients’ photos and then reports back any usage so that the rights-holder can then determine if the use if authorized.
But why does such a service exist? Plainly spoken by Victor Perlman, the general counsel for the American Society of Media Photographers in an interview with the Copyright Clearance Center, he says that most photographers don’t even know when their photographs are being used without authorization. So this should immediately solicit the question: Who is hurt? Obviously the photographer is not hurt directly, since he didn’t even know about the usage. But the implication here is that he’s hurt INDIRECTLY. That someone on the Web using his images without consent is affecting his business.
But this erroneously assumes that there is money to be made in legal use where there is currently illegal use. That someone, say, operating a blog would be willing to pay anything at all for the use of an image of the Eiffel Tower, or a waterfall, or a small boy blowing bubbles. More likely, the site administrator would simply remove the image and find another, and perhaps this is enough for many rights-holders (especially ones that are the content creators) – that someone “respect their rights” and take down their images or – even more reasonably – simply accredit the photo to the photographer, and perhaps a link back to the photog’s Web site.
Of course, this is NOT the result of services such as Pic Scout, else they wouldn’t have very many clients. No, the result is litigation. Always more and more litigation. Instead of using technology to demand payment, removal, or accreditation (none an unreasonable result) rights-holders use such search engines to file lawsuits. These rarely make it to court no doubt, but more often result in the typical pay-up-or-else suit extorting small settlements from unauthorized users who are threatened with the costly avenue of a legal defense.
Did I just make unauthorized users the victims? I suppose I did. Well, how dissimilar is rights-holders hunting down pirate usage to police officers hawking over otherwise lawful drivers in hopes of extorting fees and fines? In both cases, the “criminals” are largely ignorant of the law, since in both traffic and copyright law there are intricacies not meant to be understood, entrapment meant only to raise revenue, and court systems happy to oblige the business. Likewise in both cases, there is not so much right and wrong as there is someone who is ignorant of and/or skirting the law, and someone who is using the law to extort funds. The vast majority of the time, the overwhelming majority of us remains on the “criminal” side. So where should my sympathy lie?
As Perlman notes, there are indeed many problems surrounding orphan works – those copyrighted works for which no rights-holder can be identified. But I whole-heartedly disagree that the fix lay in more control, more bureaucracy, and (especially) more lawyers. This will only exacerbate the problem. And while no one can blame Pic Scout for making money off a legitimate service, the benevolence of that service need bear the same scrutiny as any unauthorized use: that is, we should ask for evidence of harm and proof of loss, not simply assume that any unauthorized use implies lost profits or a detriment to culture.
If you spend money on Touch Nitro Racing – whether $2 or $8 – you should be able to play the game as free from adverts and limitations as it was the day you bought it. Alas, thanks to an “update” send via good ‘ole Apple’s App Store, a legitimately purchased game turned into one rife with limits and nagging ads in an attempt to further monetize it: trying to cull a few bucks from the array of free users but at the expense of pay users. The result: Users are unhappy, the company is hiding behind “we’re the victim” rhetoric, and Apple couldn’t care less.
Rights-holders – those that “own” intellectual property and should not be confused with content creators – have long sought ways to reach out and give any unauthorized use the proverbial smack down. Thus we’re consistently drawing closer to an environment where the most effective means of “bricking” programs or other IP is through the deceptive use of updates. This case is special in that it’s not so much about unauthorized use as it is legitimate free use. The company put the game out for free: so sorry more people didn’t want to pay for it, but that’s certainly not the problem of your paying customers.
Here’s a little historical precedent. Sony PSP owners who ran emulators (not in and of themselves illegal) faced constant “firmware updates” whose sole function seemed only to be disabling emulators. New games began to require the new firmware to run, and later still, games would upgrade the firmware without asking or gaining the consent of the unit owners (a dangerous prospect, as firmware blown installations effectively brick a device; it’s not as easy or simple as updating software).
This consistently blew up in Sony’s face, as it not only ticked off customers, but also did little to nothing to stop emulators from running, as hackers would release a new emulator days after a forced firmware upgrade.
In the same way, Nintendo forced all manner of updates for the Wii, again, with the only apparent effect of disabling the Homebrew Channel (again, not something the necessarily implies copyright violation).
Unfortunately, few rights-holders think critically about what such tactics mean so far as losing the trust and repeat business of customers. If you’re not the only game in town (and neither the PSP nor the Wii are) then forcing your customers into anything is poor practice. And it IS forcing us, because what we don’t see are either specific explanations of what updates are doing (ie – that they are meant to disable everything from homebrew to – in the case of Apple – bricking any device NOT abiding by an artificial monopoly), nor are we given any real options – say, choosing which updates to install.
Let’s take this back to Windows and the dreaded misnomer Windows Genuine Advantage – nothing but a phone-home snitch code meant to annoy copyright violations with insipid messages about how important it is to have a “genuine” copy of Windows. That Microsoft offered the ability to decline installing this insidious code meant two things: those that KNEW they were using a hot copy of Windows also knew to opt-out of WGA. Two, that those who DIDN’T know they had a hot copy also didn’t know to opt-out. Thus, just as with updates laden with Digital Rights Management (DRM) schemes, the real victim here is the uninformed user. And his greatest fulcrums of leverage are fear and ignorance. Shameful pivot points from which to conduct business or extract license fees.
It is the same tale with Touch Nitro Racing. A pirate will remain unaffected. He will simply avoid the update and continue enjoying his free version of the game, or – upon updating and bricking – will uninstall the game and reinstall an erstwhile copy or a copy some brilliant hacker has rendered unburdened by DRM. It will be the actual customers who are most effected (whether paying or not; it was – after all – the producer’s decision to make the game free during several trial periods).
And with Apple completely washing their hands of any concern, giving no refunds and simply falling back on the haunches of their legalese-laden EULA, expect cases like this to continue. The result could well be that no one feels that digital property bears the same stipulations as physical property. But is sending out an update that effectively “steals back” a game I paid money for that dissimilar from sending someone to take back a lawnmower I bought from Sears or finding that my storm windows I bought last year have been rendered single-pane by clandestine thugs who swapped them out while I was gone to work?
I’ve long detailed the differences in physical and digital property, but rights-holders cannot have it both ways. They cannot treat digital property as NOT being a buyer’s physical property, but then still charge physical prices. If you’re going to be able to undermine, manipulate, limit and even disable my digital property AND not be liable for any refunds or damages, then the recourse is simple: the price has to come down. Right now, a $60 game from GameStop is still $60 on Steam, but can’t Steam control that game far more than GameStop? Of course, so why are we paying the same price?
This, like so many things, falls back on consumers, who ultimately need to think twice before sinking any money into IP, especially digital-only IP that still bears the same price as its physical counterpart.
When porn flick producers Third Degree Films attempted to file infringement suits using no-doubt sleazy lawyers who aren’t even allowed to practice law in the states in which they’re filing, it reveals two troubling trends.
First, that people are still really ashamed of their porn proclivities, which speaks volumes about our confused culture’s inability to shake our puritanical roots. Sure, the Internet provides a semi-private platform for porn in lieu of erstwhile public platforms such as the XXX section of your local video store, or a XXX store that you wouldn’t want to be seen entering. And smarmy Third Degree Films count on pay-up-or-else lawsuits to glean five-figure settlements simply because porn pirates are too ashamed to have to fight the infringement in court.
Granted, I’m not a teacher or a preacher, and if I were, I suppose the fear of public exposure of my porn preferences would loom a terrible fate. However, this illustrates our perpetual ignorance of law in general and copyright law in particular. In that, despite what the idiot box tells you, the VAST majority of legal proceedings take place OUTSIDE the courtroom. That includes, say, filing an infringement suit, you filing for dismissal – back and forth and back and forth. This doesn’t even have to be costly, it just requires a modicum of elbow grease (in the form of legal research) on behalf of the accused.
Because the majority of infringement cases bank on collective ignorance of copyright law, and are therefore very, very flimsy. Case in point: the suits filed by Third Degree Films, which won’t get anywhere while they themselves can’t even follow due process.
Consider other cases, such as with vampiric pay-up-or-else cesspool ACS: Law, where they don’t even take the time to file suit against people, but IP addresses. And without the concern even to check to see if they are able to file suits in that state. Not that’s lazy! And thus, that’s flimsy and combatable.
Second, people are convinced that the beginning of law (the lawsuit) equals the end (judgment). There are a ridiculous number of steps in-between, and these steps are as costly for the rights-holders as they are for the defendants. More so. So when a rights-holder demands a five or even four-figure settlement, they’re not doing it to be lenient (since the max fine per infraction is $150,000). They’re doing it to avoid the expense and legality of using the court system. Suits are thrown out all the time because firms fail to follow legal protocol (as complicated as tax code, to be sure). But when citizens are threatened with anything written by *gasp* a LAWYER, they think they’d better pay up or their lives will be ruined.
Indeed, there are some horrid judgments out there: Thomas-Rasset and Tenenbaum to name a couple. But these are not only outliers, they are judgments that were subsequently reduced greatly. You just don’t read that in the news. You hear only about the huge sums they’ll have to pay, and then the journalists are on the next story to sensationalize.
So just as aforementioned slime balls Third Degree Films will have to check their pay-up scheme, people need to know that the only reason they work to begin with is that we have remained willfully ignorant of copyright law and the legal process. In the time it takes to watch a season of “Two and a Half Men”, you could learn droves about defending yourself against rights-holders’ predatory practices. If more people made copyright suits run the full legal gamut, such suits would likely wither and die.
And this is coming from a guy who LOVES his Mac and iPod. I hate that I love them sometimes, but I do indeed love them, because I can spend my time working, creating, and producing rather than fixing stuff (my inevitable fate when using PCs for many previous years).
However, what Ars Technica calls the “iOS-ification” of the OSX operating system is turning a creative platform into a digital shopping mall. Y’know, the mass consumption, dopamine-releasing pile of crap that the Net is turning into. When I work on a computer (and it is indeed work), I don’t want to consume or be spoon-fed everything from my news to my culture. But this is the seemingly inevitable fate of Apple’s upcoming operating system dubbed Mountain Lion.
Back to killing resale: it seems that Mountain Lion will not run on older hardware. This is nothing new, I realize. Good luck running the latest blockbuster video game on a five-year-old laptop; you’ll get a slew of errors. But in the latter case, it’s because the demands of the game’s graphics exceed the capacity of your computer’s hardware. This is not necessarily the case with Mountain Lion. Let’s get real here: Mountain Lion will not REQUIRE hardware any more advanced than any other iteration of OSX, even from years before.
So why won’t it run on that old hardware? That’s easy: because Apple wants you to buy newer shit. That’s it. It – like so many other companies - cannibalizes its past products to force consumption of its latest products. This is weighed against the inexorable disappointment consumers feel, but is found worthwhile for the bottom line.
Buying a new Mac is exciting, fun, and releases that sought-after dopamine like no PC can. What you don’t know is that the moment you leave the store with your purchase, Apple will expend every resource possible to make sure that your new hardware is defunct and worthless. That YOU will think it worthless, the moment the next iteration hits the shelves. Apple’s long game is cyclical consumption, not customer satisfaction or long-lasting products.
That doesn’t mean Macs don’t last long. They do. But any older Mac will have no support. Will very quickly find no possible upgrades available. And will thus have few to no re-sale buyers. That’s the key. That’s the goal for Apple: that the first buyer is the last buyer, and that he considers his Apple hardware nothing but junk the moment the next big thing graces the Apple Store shelves.
What does this reflect? A vituperation of the right to resale. Of the first-sale doctrine. Of our ability to have our hardware and software continue to operate after the latest product releases. After we’re done using it, but someone else could find all they need in it. This is what Apple has grown determined to destroy.
My response: I never buy Apple products new. Not any more. I make it a point to buy only used Mac, iPods, or other hardware. I buy my software straight from the company that created it, not from the uber-convenient but wholly unnecessary AppStore, where Apple gets 40% for railroading its own customers.
We have the right to resale. We surrender this right at our own peril. It isn’t small or insignificant or unimportant. It’s only made to appear that way by companies who want you to buy their shit.
The main difference is in the network of people involved. You’re unlikely to find as many people with as many files in your DropBox circle than in any service akin to Megaupload. But then consider how digital information spreads. You only really need one person capable of obtaining one copy of any media, and it will effectively spread to all people sharing his DropBox folder. For someone sharing pics of newborn little Billy, how quickly sharing a DB folder can occur is no mystery.
Sure, there are size constraints, but unlike with tanks, for intellectual property, size does not always matter. Consider the worth of tiny plug-in Izotope Nectar to a sound engineer. Such a file would take only minutes to share on DropBox, and would fill only a fraction of the 2Gb free account.
So when a service such as Megupload is taken down, and with such dramatic and perfervid flare by rights-holders and their cadre of lawyers, it’s not that file-sharing stops or even decreases. Rather, it’s simply more likely that it moves further into the shadows. Perhaps fewer people will be tempted to try pay-to-play file-sharing services or even bit torrent, but they would grow more inclined to ask files of their friend who IS intrepid enough to download warez regardless of industry threats. And DropBox and its ilk provides a safe and semi-private rendezvous for such sharing.
This is certainly not to indict DropBox; it’s quite clear that they provide a service that – just like cars or booze or handguns – CAN be used to violate the law, but violation is indeed not it’s primary purpose. (And – frankly – one cannot argue that the “harm” caused by swapping files using such services compares with the potential harm of drunk driving or poor gun safety, either).
This is more to express what anyone immersed in copyright culture understands – even the rights-holders: that sharing is as native to the digital age as texting or email. No matter how much gloom and doom lines the occasional “victory” claimed by the copyright rich.
My final rant on the troubling nature of the words used in the Stop Online Piracy Act (SOPA) also involves the line: “Dedicated to the theft of US property” in reference to which sites rights-holders would have the authority to see shut down. The final bit – “US Property” – is probably the most egregious misnomer in the lot. We’re talking about intellectual property (IP) that enjoys the protection of US copyright law. That’s it. It is not “US property”; it is – as rights-holders are so fond of saying – private property.
Claiming that the IP of individual rights-holders is US property is like saying that my car or my house is US property. Both are protected under US law: if someone steals my car or burns down my home, police will work to find out who did it, and I might even find some restitution. But that certainly does not make it US property.
This verbiage is clearly the sort of blanket statement that makes copyright law appear irrefutable, and any violation seem like an attack on America itself. Of course, in reality, when someone overseas buys a bootleg copy of a film instead of a legitimate version (and oftentimes legit versions aren’t even available), this is no sooner theft of US property than it is personal property. The connection is simply too flimsy to be made. It’s not as if crates stamped US pour into China filled with DVDs stolen directly from the state department. We’re talking about bits of data that US citizens created, and not under some state mandate or even FOR the state, but rather as a creative endeavor to make money. And they do.
Think about the absurdity of calling personal intellectual property US property. How about if an American overseas writes something down during a visit to Amsterdam? It’s HIS intellectual property, and was the moment it was fixed to a tangible medium of expression. He enjoys the same rights that George Lucas or Quintin Tarentino enjoy, since the protection isn’t based on “artistic merit”. If he leaves that writing in Amsterdam and returns home, is Amsterdam then in potentially illegal possession of US property? What pains should they have to endure to return that property unharmed and uncorrupted?
I hope these last few posts have made at least a few people think about the silliness of SOPA, it’s potential harm, and the reasons we need to remain diligent in our fight against it.
I’ve already written about the problem of what it means to be “dedicated to”, since the subsequent verbiage clearly also targets any sites linking to sites that have this “dedication” to piracy.
Secondly, though, is the problematic word “theft”. This pithy sentence does not – in any way – illustrate the tremendous semantic struggle involved in the tug-of-war between rights-holder claiming that violating copyright equals “theft” and those who assert that you cannot “steal” something which can be replicated ad infinitum.
I’m not surprised to see SOPA reverting back to the same verbiage industry propaganda machines use: “piracy is theft, and theft is against the law” etc, etc. It’s simply saddening that any legislator would show no opposition to such a blanket, moronic assertion.
Let’s take an example. If copyright infringement were the same as theft; if indeed the term was wholly fungible with theft, then the title of “thief” become diluted to the point of irrelevance. Everyone who ever sang “Happy Birthday” at a ballpark or restaurant is a thief. Anyone who ever made a mix tape. Who ever used music or images in a PowerPoint (since the idea that someone would get permission for an internal PowerPoint presentation is absurd).
So if anything, such verbiage waters down what it means to be a thief, since we all – in some way – violate copyright. Of course, saying “theft” is supposed to hold more power and allow far less wiggle room than, say, indicting any sites “who in some way violate copyright”. There’s no teeth there. No drama. No immediacy. It’s too ambiguous.
And yet this is a far more accurate statement than SOPA’s verbiage.
Check back for part three of pulling back the curtain on SOPA’s verbiage, or read the last post, and hopefully even the few who indulge me by reading this will have a greater appreciation of how clearly one-sided this horrid bill is, and what that means for its future.
Even I’m tiring of hearing about the Stop Online Piracy Act (SOPA), though it is supremely important to shoot down. However, I think it’s important for people to take a look at and consider just the first line of the actual verbiage.
It gives rights-holders the ability to “request” the take-down of sites: “Dedicated to the theft of US property”.
There is so much wrong about that single line that it singularly makes it clear to me that no one willing to give this the go-ahead has any real understanding of copyright. So I’ve decided to break this down a bit for my readers in a series of three blogs over the next few days.
First, for a site to be “dedicated to” anything implies that it’s primary and perhaps sole purpose is that object. The Google search engine could be understand as “dedicated” to searching the Web. eBay is “dedicated” to conducting online auctions. Sure, both do much more, but I would agree that those sites are indeed “dedicated” to the aforementioned deeds.
So what? Well, according to SOPA (and Khan’s Academy explains this beautifully), a site needn’t be dedicated to “the theft of US property” to be taken down. Right in the verbiage of the proposed act is the indication that this would extend to any sites that “enables or facilities” such pirate sites. So a link to a site “dedicated” to selling hot copies of Rosetta Stone and other apps is de facto guilty as well, despite the linking site not being “dedicated” to copyright violation. It only takes a moment’s consideration to see how far this would extend beyond sites whats sole purpose is to profit from piracy.
Think this is splitting hairs too much? Alas, that’s what’s necessary when dealing with blanket legislation, such as the Digital Millennium Copyright Act (DMCA). This was so heavy-handed that it effectively destroyed fair use for bypassing Technical Protection Measures (TPMs). A later amendment allowed for bypassing such measures so long as copyright violation was not the software’s primary purpose; (ie – just so the software was not “dedicated” to piracy). Wonder why we can now use apps to backup our DVDs – thank this amendment (and those who fought for it).