Confidential to NY Times: Free as in speech

June 26, 2009 6:41 AM

Getting smart about personal technology.NYTimes publishes Sonia Zjawinski's assertion that other peoples' images on Flickr are probably OK to download, blow up and use to decorate her house: And if you’re wondering about copyright issues (after all, these aren’t my photos), the photos are being used by me for my own, private, noncommercial use. I’m not selling these things and not charging admission to my apartment, so I think I’m in the clear.

Other people think it's more complicated, and some are just pissed. Coincidentally, the Times photo editor is taking questions this week. Next, Zjawinski will also address the issue of tattooing Flickr photos without attribution (maybe.)

posted by chesty_a_arthur (173 comments total)

...aaaand this is why I made the freely-available choice to not upload anything at print resolution*



*if anyone wants to make micro-mini prints of my 400x600 images and cut tiny mats and frames for them, that's actually pretty awesome though
posted by availablelight at 6:43 AM on June 26, 2009 [1 favorite]

I should also add: it's unclear whether this behavior falls under the Flickr guidelines exhortation to "not be that guy."
posted by chesty_a_arthur at 6:44 AM on June 26, 2009 [2 favorites]

I'll wait for actual lawyers to offer legal opinions, but I personally see absolutely no problem with this.

I understand that most professional photographers do see a problem with this. But I've yet to have one make it clear to me why I should share their outrage. After all, this concept of a right of artistic control over stuff you create is pretty new, in the grand scheme of things. It's nothing you can make an a priori ethical case for or against.

The ethics of something like this are societally driven. They're being driven right now, as we speak. That's why we have discussions like this: It's part of the driving. Though, to be fair, it seems clear that discussion per se is not going to drive much w.r.t. "fair use": practice will be the main driver, and the commercial interest of large-scale players like Corbis (via law) the secondary driver. Pro photographers (or writers, designers, etc.) will get their "rights" stood up for only insofar as it serves the interests of those two groups. (Of which, the stronger very much IMO remains to be seen.)
posted by lodurr at 6:51 AM on June 26, 2009 [8 favorites]

Some are pissed? She's perfectly within her rights. You upload photos to a gigantic warehouse where they are co-mingled with millions of photographs from other people, tagged, cataloged, and archived, and then you are upset when someone finds them, treats them like a freely available commodity (which is how you wanted them treated when you uploaded them to flickr in the first place), and does what they want with them for their personal use?

I always find it funny how people turn into the RIAA them moment it's their creative output that is used in ways they didn't expect. If you don't want people to use your stuff, DON'T PUT IT ON THE INTERNET.

Here's what I'm going to do. The next time I need a greeting card for someone, I'm going to find a photo on flickr, match it with a pithy quote from poetry.com or livejournal, and print it out.
posted by Pastabagel at 6:56 AM on June 26, 2009 [35 favorites]

People are downloading my photos to decorate the display faces of the computer monitors in their homes!
posted by DU at 7:02 AM on June 26, 2009 [10 favorites]

After all, this concept of a right of artistic control over stuff you create is pretty new, in the grand scheme of things.

Is it now? Maybe in the same sense that making art at all is pretty new, in the grand scheme of things. But precedent for artists exercising control over intellectual property and expecting others to respect their rights to control the use of their creative works can be found going all the way back to ancient Greece.

For example:

"...the rhapsodists had the monopoly of the ballads, and sung them for hire and salary on public occasions, and prevented the circulation of written copies..." [cite]
posted by saulgoodman at 7:03 AM on June 26, 2009

I mean, just to play devil's advocate.
posted by saulgoodman at 7:03 AM on June 26, 2009

I think I would be totally ecstatic if I found out someone downloaded one of my photos and hung it on her wall. Hell, I'm excited if I get over 10 pageviews a day. Distributing content like that gets your name out, gets you noticed.

I licensed everything on my flickr profile as CC non-commercial. And in at least one case, I have proof that the licensing holds water. I got a check from an ad agency to put one of my photos on a real estate brochure.
posted by backseatpilot at 7:04 AM on June 26, 2009 [2 favorites]

Somebody should tell Ms. Zjawinski that's why have a difference between could and should.
posted by jonp72 at 7:05 AM on June 26, 2009

This is moronic. If I put up an article for free download with a printer-friendly version, I give up the right to be pissed when you print it out rather than read it on-screen.
posted by a robot made out of meat at 7:05 AM on June 26, 2009 [3 favorites]

You upload photos to a gigantic warehouse where they are co-mingled with millions of photographs from other people, tagged, cataloged, and archived, and then you are upset when someone finds them, treats them like a freely available commodity (which is how you wanted them treated when you uploaded them to flickr in the first place), and does what they want with them for their personal use?

I agree with this. If you want to restrict the use of your content, for chrissake, at least don't upload it to flickr! If you anything, host it on your own site and clearly state the terms under which you're releasing the content there (to be extra cautious, you might use watermarks). That's what Creative Commons licenses are for--to let you decide how you want your work used, if at all. Geez.
posted by saulgoodman at 7:07 AM on June 26, 2009 [3 favorites]

so its cool to use something as my wallpaper but not my wallpaper wallpaper?

uhuh.
posted by breadfruit at 7:08 AM on June 26, 2009

Information wants to be free, unless it's mine!

I love web 2.0 folk.
posted by game warden to the events rhino at 7:08 AM on June 26, 2009 [16 favorites]

the photos are being used by me for my own, private, noncommercial use. I’m not selling these things and not charging admission to my apartment, so I think I’m in the clear

Scary copyright laws notwithstanding, this tends to be the view that most normal people have on copyright infringement and intellectual property rights. Probably in part because until the RIAA started suing individual consumers, virtually no one who made an unauthorized copy of a work for their own personal noncommercial use was ever brought up on criminal charges or faced a civil suit. The focus has always been on preventing people from making a profit on copyright infringement.

For example, I don't think most people have a problem with illegally singing Happy Birthday:

In 1990, Warner Chappell purchased the company owning the copyright for US$15 million, with the value of "Happy Birthday" estimated at US$5 million. Based on the 1935 copyright registration, Warner claims that U.S. copyright won't expire until 2030, and that unauthorized public performances of the song are technically illegal unless royalties are paid to it.

Given that there are 300 million people in the US alone, each one has one birthday per year, and that Warner charges up to $10,000 per use to license the song, that means that Warner is losing out on up to 3 trillion dollars per year due to Happy Birthday copyright infringement.
posted by burnmp3s at 7:10 AM on June 26, 2009 [24 favorites]

Ugh - the idea of copyright doesn't derive from some universal human right. It's just a practical measure - basically, if a society wants people to make cool things, it has to allow the creators to make a living off of making cool things. Thus copyright law should protect intellectual property only as far as is necessary to allow the creator to make a reasonable return on their investment of time, materials, and training.

Thus, if someone actually wants to make money off of their images, that is their right. However, uploading images to flickr is not a reasonable way of making money from images, so there is no reason why it should be protected.
posted by Salvor Hardin at 7:10 AM on June 26, 2009 [4 favorites]

While it's true that it's a fool's errand to try and restrict people's use of content through technological means (DRM, right-click hijackers on web pages, etc.), that doesn't mean that it's foolish to start trying to cultivate a wider knowledge and respect for usage rights.

I generally release everything I create under a Creative Commons or open source license and put it on the internet somewhere, unless I specifically intend to try and make money from it in a way that precludes use of those licenses. (Not that I'm a particularly prolific or great creator, but I like to think that it benefits some people in small ways.) I also respect the rights of those who choose to retain the rights on their works, and who want to use the internet as a way to merely display and increase exposure of those works, under specific terms.

It is becoming clear that having works in a digital form, and available over an easily accessible medium like the internet, is an overwhelming benefit to all parties, regardless of the licenses granted on those works. We need to acknowledge that there can be a spectrum of grey between "not on the internet, so you can't do anything with it" and "on the internet, so you can do anything you like with it".
posted by chrismear at 7:12 AM on June 26, 2009

There is absolutely no reason to resort to the "flickr is a free resource" defense. I can check a book out of the most restrictive library in the country from the most rabidly-protective author imaginable and photocopy as many pages as I want, as long as I only use them personally. It's called Fair Use. Look into it.
posted by DU at 7:12 AM on June 26, 2009 [9 favorites]

I am failing to see what the problem is with Sonia Zjawinski doing this or why people are freaking out about it. Is she saving these photos and uploading them onto her own Flickr account, thereby claiming them as "hers"? Or even telling her friends "Yeah, I took those photos"? Is she framing these photos and then turning around and trying to sell the framed prints? Either of those, I could see people having problems with.

If the photographers whose photos she's printing out are trying to sell prints of them, that's one thing (but it's not entirely clear if that's ever the case) but I think those photographers should be smart enough to not allow hi-res downloads of their photos or even downloading, period. (And the professional photographers I know are smart enough to do that.)

I have my photos on Flickr under the CC "share-alike, attribution, non-commercial" license (I believe, anyway). I am not trying to sell If people want to download my photos and print them out to decorate their apartments or whatever, they can feel free. To me, that's sort of what they're there for.
posted by darksong at 7:17 AM on June 26, 2009 [1 favorite]

This is the photographic equivalent of fan-fiction. It cheeses off the artist/writer, and it's not something people with any sort of taste would spend their time doing. It's not illegal or even all that unethical, though.
posted by Slap*Happy at 7:18 AM on June 26, 2009 [1 favorite]

As long as she was actually following the guidelines of licenses of the photos, I don't have a problem with this (just as backseatpilot says, my photos are CC non-commercial). But I doubt she does, I don't even know if she has gone ahead to click on the licensing information for the images, and just assumes that there is some universal flickr wide copyright.

What pisses me off is:

so I think I’m in the clear.

Actually, you don't have "think" if you are in the clear, the copyright status (or copyleft) of each image is provided for you, so you can KNOW if you are in the clear with what you are doing. I realize I can't prevent people from printing out my images and using them as artwork at home, but I would love if they at least knew that all I've asked in my license is to be credited by it, and probably wouldn't mind getting an email saying "hey, your photos are awesome, they are on my wall."

In my opinion Attribution is what is important when it comes to my photos, I just want people to know those photos are mine, and that I took them, and maybe if they wanted more like it, they now know who to call to hire for a shoot (I am not even close to a professional photographer, but that is my attitude).

Sonia just sounds intellectually lazy about this whole thing, because she could have actually done a nice primer on how to print and attribute photos to use as decoration, and determine which ones you can use freely which ones you can't. Because again, this isn't pulling images randomly off google search which provide little or no resources to how the artist would like you to use the image, flickr has all that information right there in front of you.
posted by mrzarquon at 7:19 AM on June 26, 2009 [23 favorites]

Printing out and blowing up is how I surf the web, monitors are so last year. I do it with MeFi as well, with the added bonus that I get everything with a professional white background.

I really can't see why anyone would be upset by this. You upload your pictures to Flickr, most view your pictures on their screens and some like your pictures so much they want to view them in a larger format. I'd be delighted.
posted by bjrn at 7:19 AM on June 26, 2009

I always find it funny how people turn into the RIAA them moment it's their creative output that is used in ways they didn't expect.

I think it's more "understandable" than "funny," actually. Why wouldn't a creator care about the disposition of a piece of art as much as (or more than) an association of intellectual property farmers?
posted by Iridic at 7:20 AM on June 26, 2009

This is exactly why I scratched a copyright logo into the lens of my camera.
posted by orme at 7:22 AM on June 26, 2009 [13 favorites]

I am failing to see what the problem is with Sonia Zjawinski doing this or why people are freaking out about it.

Well, my guess is at least some of these people are worried about having their pictures used to make them the targets of hipster irony like this.
posted by saulgoodman at 7:24 AM on June 26, 2009

I can check a book out of the most restrictive library in the country from the most rabidly-protective author imaginable and photocopy as many pages as I want, as long as I only use them personally. It's called Fair Use.

Not according to the Authors Registry (who coincidentally use the same calculation I did with Happy Birthday justify their claim):

Unauthorized photocopying of books and magazines seems harmless, until you realize the scale of the infringement. . . . Reasonable estimates place the revenue lost to illegal photocopying at one to two billion dollars a year in the United States. At a time when an increasing number of freelance writers are finding that this career no longer pays a living wage, we cannot afford to continue to ignore that lost income.
posted by burnmp3s at 7:25 AM on June 26, 2009

One odd thing is that Flickr controls don't seem to allow you to display something to the public at a low resolution and to friends/family/contacts at higher resolution unless you actually upload two separate files.

Our intention with Flickr is to distribute kid pics to friends and family (including non-contacts) who might want prints, although my objection to a stranger having a blown-up picture of my kid in their living room is eew rather than an intellectual property objection.
posted by chesty_a_arthur at 7:29 AM on June 26, 2009

Actually, you don't have "think" if you are in the clear, the copyright status (or copyleft) of each image is provided for you, so you can KNOW if you are in the clear with what you are doing.

She already knows she's in the clear, because there is no imaginable way in which sanctions could be taken against her for her copyright infringement, if it even was copyright infringement, which I'm pretty certain it wasn't. (This has nothing to do with the terms of the specific licenses, since the licenses exist within a legal framework that includes fair use.) She wasn't writing a primer on copyright and copyleft, she was giving home decor tips.
posted by game warden to the events rhino at 7:35 AM on June 26, 2009 [4 favorites]

there is no imaginable way in which sanctions could be taken against her for her copyright infringement, if it even was copyright infringement, which I'm pretty certain it wasn't. (This has nothing to do with the terms of the specific licenses, since the licenses exist within a legal framework that includes fair use.)

This is where the "I think" part comes in. In the legal sense, you can only think that you're in the clear, because there are no laws that say anything specific about whether or not people are allowed to print out images from flickr and decorate their houses with them. Most likely it would come down to Fair Use laws, which are just a set of guidelines about what kinds of uses are protected rather than hard and fast rules about what is and isn't allowed. The only way you can be 100% certain that something falls under Fair Use is if a court has ruled on your exact situation, and in the case of flickr images or any other things made possible by recent advances in technology there have been few or no rulings that give an indication one way or another.

From the perspective of the author's intent though, I agree with mrzarquon. If you feel that you have a moral rather than legal obligation to follow the exact license stipulations dictated by the creator of a work, you probably have to go through the process of learning the difference between Attribution Only vs. Attribution Noncommercial No Derivative Works, contact authors with specific questions about uses, etc. As with anything there are different ethical, legal, and moral considerations that vary from person to person.
posted by burnmp3s at 7:46 AM on June 26, 2009 [1 favorite]

Dear random internet stranger who took the sweet photo of tomatoes that I have hanging in my kitchen: I have your sweet photo of tomatoes hanging in my kitchen. Thank you.
posted by uncleozzy at 7:49 AM on June 26, 2009 [9 favorites]

Oh geez, I can't believe the ignorant comments on Metafilter so far. A New York Times article just published a complete fiction about copyright law. Some made up shit about "gee this feels OK, so why not?" What's particularly ironic about this example is that "printing out a photo and hanging it in the house" is pretty much the exact business model of photography artists, so this isn't just some theoretical infringement on rights no one would ever exercise.

It's frustrating to read this because Flickr in fact has very good, detailed tools for users to protect their images. And Flickr was very innovative in labelling every uploaded image with copyright and licensing status, and working with Creative Commons to let ordinary photographers specifically annotate their images with permissions. Flickr is full of photos that are free and clear for Sonia Zjawinski to download, print, and hang in her house. And there's a handy way to find them.

Ethically and practically, I couldn't give a shit if Sonia steals some photograph and hangs it on her wall. I didn't care when George Bush had unlicensed copies of Beatles music on his iPod, either. But to claim it's legal in the newspaper of record is irresponsible.
posted by Nelson at 7:51 AM on June 26, 2009 [15 favorites]

Unauthorized photocopying of books and magazines seems harmless, until you realize the scale of the infringement. . . . . Reasonable estimates place the revenue lost to illegal photocopying at one to two billion dollars a year in the United States. At a time when an increasing number of freelance writers are finding that this career no longer pays a living wage, we cannot afford to continue to ignore that lost income.

That is very sad, but does not mean that Fair Use is illegal.
posted by DU at 7:52 AM on June 26, 2009 [1 favorite]

The only way you can be 100% certain that something falls under Fair Use is if a court has ruled on your exact situation.

Exactly. And non-commercial use is only one of the four pillars that determine whether something is Fair Use or not. If you look at the Wikipedia link that DU posted, it's clear that sometimes, non-commercial use is not considered to be Fair Use.

The thing I find weird is that she didn't just use photos with the appropriate CC-licenses. It isn't hard to find a photo of almost anything you want, free to use however you want. Seems like that would be the easier approach.
posted by Infinite Jest at 7:55 AM on June 26, 2009

Seems like Fair Use to me. A bit uncool, and definitely getting into "that guy" territory as Flickr's guidelines call it, but if you can use a pop song as the background of your personal-use-only iMovie vacation video, I don't see why grabbing some photos off the 'net and sticking them up in frames around your house wouldn't be kosher.

If she really wanted to be sure, though, she could just limit her search to Creative Commons-licensed photos. It seems a bit odd to me to be having this argument over rights, when a lot of people have gone out of their way to make their photos available for reuse.

A large proportion of what I've uploaded to Flickr is CC licensed; although I like hearing from people when they've used one in another project, I wouldn't have any objection if someone decided to decorate their walls with them. For all I know people might be, or they might be lining their cat box with them. Doesn't really matter to me in the least.

It's interesting to see people end up on the opposite side of the normal Fair Use claim, since normally it's regarded as something we're all thankful for.
posted by Kadin2048 at 7:59 AM on June 26, 2009 [1 favorite]

I can certainly view the pictures on my computer monitor, right? Full screen? Can I get up from my desk while the picture is displayed? Am I free to use my computer with my wall mounted TV?

So your picture is now displayed over my mantle piece, all in the course of what you specifically set out to allow me to do. That same picture is printed out and hung up there next to my monitor, but that one is not OK?

What if I back-light the picture, so it looks just like the monitor? This is all about back-lighting, isn't it?
posted by StickyCarpet at 8:07 AM on June 26, 2009 [9 favorites]

> She wasn't writing a primer on copyright and copyleft, she was giving home decor tips.

True, but again, she thought about copyright (long enough to go "I think I'm not doing anything wrong") at some point in the article creation. She could have taken an extra paragraph to describe and link to the Creative Commons page, which would have saved her all of this drama.

I don't care if she has some unattributed / unlicensed photos in her house, but she could alteast have done her homework on the material, and the most offensive part is the homework really isn't hard.

And if she had included a photoblog of her house with the photos, what was her personal, not for profit work, all of a sudden becomes part of her work and portfolio, and I hope she would think to add the attribution to the images. What about other home decorators who provide similar artwork consultation to clients for a price? That is no longer in the grey "but I'm not charging anyone for it" area, or for someone who decides to use the same home decor information to spruce up their office?

Again, to me, the most offensive part of the entire article is how poorly it was executed. "If you want to know more about which images the artists have agreed to let you freely print out and display in your house, or in your office, or use for design purposes, flickr has a nice primer here."
posted by mrzarquon at 8:08 AM on June 26, 2009 [1 favorite]

Hmm, I don't know what the original article said versus what it says now, but she only links to the Library of Congress photostream which publishes photos by government photographers of bygone eras and they are in the public domain. Stuff in the public domain doesn't have copyright of any kind, so printing and display is totally fine.

If she gave advice that you can print anything from flickr, that's dumb and yeah, not legal unless she contacted the photographers and asked or they used a more open license than full copyright.
posted by mathowie at 8:09 AM on June 26, 2009

First of all, this is just sloppy journalism. If I'm writing a blog post about how I take Flickr photos and use them to decorate my house, what she did is okay. But when your domain is nytimes.com and you're writing under the NYTIMES banner, send an email to your legal department. "Hey I'm writing an article about this, is this legal? Can I get some cites?" And then in her NYTIMES blog post she goes, "I thought this was legal, but just to made sure checked with our lawyers on retainer, they say it is! Blah v Blah asserts my right to do this, ethical? That's another issue which I explore in this post."

And she didn't, and that's indicative of the state of journalism today. Oh and the meat of the article, the fact you can get decent prints from home printers is nothing. I didn't see any debate about dye-subs or special paper that gives a more professional finish, etc, or not even a short detour into stencils and DIY stencils for your home and how this is all affordable and more accessible meaning you can be more daring because if you don't like it in a month you can just do something else.

But no, we didn't even get that.
posted by geoff. at 8:11 AM on June 26, 2009 [8 favorites]

if you can use a pop song as the background of your personal-use-only iMovie vacation video

The pop song is in the background, a small part of the derivative work. This article is about using the photo, and the entire photo and nothing else.

Two key parts of US fair use:

• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

She's using the whole photograph, and nothing but the photograph. And she's depriving the photographer of the market of selling her the photograph. Yes, in practice she'd never buy it, but now that's doubly true since she can just steal it instead.

Fair use is a big giant grey area. It's complicated, and unclear, and unevenly applied. But don't defend this NYT article as saying she's making some sophisticated, detailed parsing of the aspects of her use of copyrighted materials. Not at all. She's just breezily downloading other people's creative work for her own purposes and using the NYT to reinforce the general public's ignorance of how copyright works. It's dumb.

Hopefully the followup won't be dumb. Hopefully she'll talk about Creative Commons, since it creates a clear and legal way for her to do exactly what she wants to do.
posted by Nelson at 8:13 AM on June 26, 2009 [2 favorites]

orme: This is exactly why I scratched a copyright logo into the lens of my camera.

was it the front element? if so you'll need to do something a bit more drastic.
posted by heeeraldo at 8:19 AM on June 26, 2009 [3 favorites]

She wasn't writing a primer on copyright and copyleft, she was giving home decor tips.

I wonder if the New York Times would run my article about my fancy new home decor tips.

I sift through restaurants on a regular basis for objects decoratif for my home. Through my bouts of dining, I've often found stunning tableware, so much so I've gotten in the habit of putting them in my purse. If a restaurant has a beautiful painting in the bathroom, don't let that go to waste. Put in your coat, take home, hang!

Of all the artwork I have in my studio apartment, my restaurant funds get the most attention. Best of all, they were practically free! The only thing I pay for is the Thai curry -- peanuts are best, in my opinion.
posted by Nelson at 8:20 AM on June 26, 2009 [4 favorites]

I have a simple approach to this.

If you complain I will undo anything I ever did that had anything to do with your work and I will attribute all the removals clearly, unambigously and loudly to you.

I don't believe in intellectual property but since you do I will make sure and attribute your foolishness to you. So you can own that too.
posted by srboisvert at 8:21 AM on June 26, 2009 [1 favorite]

"If you want to restrict the use of your content, for chrissake, at least don't upload it to flickr! If you anything, host it on your own site and clearly state the terms under which you're releasing the content..."

Why, is using your own site somehow more copyright protective? The terms are fairly clear on flickr.

I regularly release print resolution photos to the public domain. No CC or copyleft or anything. That way I don't have to worry. I have pre-stolen it from myself for everyone.
posted by bz at 8:21 AM on June 26, 2009

You can't see them without downloading them.
posted by delmoi at 8:25 AM on June 26, 2009

Her added material, acknowledging the copyright issue: "it’s a thorny issue: If printing out an image on Flickr isn’t ok, [snip] What about Tivoing an episode of Lost and watching it later with friends?"

Time-shifting. Has been specifically allowed in the US ever since Sony v Universal (the Betamax case). Do journalists do any research at all?
posted by Infinite Jest at 8:26 AM on June 26, 2009 [3 favorites]

Two key parts of US fair use:

* the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
* the effect of the use upon the potential market for or value of the copyrighted work.

You somehow managed to avoid the first bullet point:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

This is so obviously Fair Use it's kind of mindboggling we are even having this discussion. I cane time and space shift my TV shows. Why can't I time and space shift my flickr viewage?
posted by DU at 8:26 AM on June 26, 2009 [6 favorites]

So if a band releases high-quality MP3s on their website, is it not cool to put them on a CD to listen to in the car? Jesus.
posted by uncleozzy at 8:27 AM on June 26, 2009 [3 favorites]

Through my bouts of dining, I've often found stunning tableware, so much so I've gotten in the habit of putting them in my purse.

And here we go with the copyright infringement = physical theft. That took a while to get there.
posted by smackfu at 8:31 AM on June 26, 2009 [16 favorites]

Hello. My name is Squalor and I am a Right-Click Hijacker.
posted by squalor at 8:39 AM on June 26, 2009

Even if she is just using Creative Commons marked images, it's just plain rude not to contact the photographer. I've had lots of people contact me about using my images - my stuff on Flickr is all Creative Commons - and in almost every case I've been fine with it and thrilled (the notable exception would be a Giant Computer Corporation's Travel Company.) It just feels weird and iffy to be using other people's images without a flickr mail at the very least.
posted by mygothlaundry at 8:45 AM on June 26, 2009

Two key parts of US fair use:

* the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
* the effect of the use upon the potential market for or value of the copyrighted work.

She's using the whole photograph, and nothing but the photograph. And she's depriving the photographer of the market of selling her the photograph. Yes, in practice she'd never buy it, but now that's doubly true since she can just steal it instead.

I can't speak to the first point about the amount of the work used, but its clear that the second point refers to the effect on the market, not on one consumer. She is not a market by herself.
posted by Reverend John at 8:47 AM on June 26, 2009 [2 favorites]

I put all my photos up on Flickr in a resolution high enough to make decent sized prints. I have them under the Creative Commons license, with attributation, non-commercial and share alike requirements, not that any of that matters when creating prints for personal use. I would sincerely hope that someone has made huge prints of my work and put them on their wall, but I doubt it.
posted by [expletive deleted] at 8:48 AM on June 26, 2009

You somehow managed to avoid the first bullet point:

The four factors of fair use are all relevant. It's not some magic of "if you satisfy one of these criteria you are suddenly in the realm of fair use". If it were, then schools and non-profits would never ever buy any intellectual property. Boy, that'd sure help out the IT budget for a lot of high schools.

Look, I hate US copyright law too. Copyright holders have way too many rights and abuse them unethically. And I agree there should be a distinction between taking a physical object (with scarcity deriving from physical law) vs. making a copy of a virtual object (with scarcity deriving from government law).

But that's not how US copyright works. Having the NY Times breezily assert otherwise just reinforces dangerously ignorant assumption about our laws. Laws that need changing.
posted by Nelson at 8:49 AM on June 26, 2009 [2 favorites]

I can check a book out of the most restrictive library in the country from the most rabidly-protective author imaginable and photocopy as many pages as I want, as long as I only use them personally. It's called Fair Use.

I'm pretty sure there's a limitation on that. When I was in University in the mid/late 80s, there were signs posted that indicated it was illegal to photocopy textbooks.
posted by five fresh fish at 8:51 AM on June 26, 2009

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

I'd like to hear how putting up other people's pictures on your wall is a nonprofit educational purpose. If anything the act is of a commercial nature (isn't this what poster makers specialize in?) and the fact that it is for personal use is something of a red herring.

But yeah, the fact that you could have a monitor/electronic photo frame displaying these photos with no worries but can't have a real photo frame do so is kind of weird.
posted by any portmanteau in a storm at 8:51 AM on June 26, 2009

I'll 'fess up to photocopying entire textbooks when it was cheaper to do that than to purchase them outright. Some texts were ludicrously overpriced. Screwing impoverished students to the wall by making your professorial buddy's horrendously overpriced textbook mandatory for the course is way more ethically dubious than my photocopying, IMNSHO.
posted by five fresh fish at 8:54 AM on June 26, 2009 [1 favorite]

I'll 'fess up to photocopying entire textbooks when it was cheaper to do that

Me too. But I never claimed I was "in the clear" just because I didn't sell the photocopy or charge admission to read it.
posted by Nelson at 8:56 AM on June 26, 2009 [2 favorites]

srboisvert's comment reminded me of that FPP from a few days ago about the people who don't want to work. It's like if someone said they believe food is a basic right, therefore stealing it from the person next to you is okay.

I think part of the problem is that many people are ignorant and a few are unscrupulous. I have a lot of photos on flickr, and I use it because it is publicly accessible. It definitely helps me in some ways, like getting an ID on a weird fish, etc. Over time, though, I have been incrementally tightening up access to my photos & the license I put on them. Partially this is because I have invested more time and money into my amateur photography and maybe down the road I will get good enough to earn some money to support that hobby.

It's also because some people spoil it for the rest of us. An example: we were diving on vacation and got to know a couple people who were there at the same time as us. On one night dive I took some pretty good photos of an octopus we saw. We had exchanged contact info so they could see the photos when I put them on flickr. We became "contacts" on flickr and I noticed that he was uploading my photos to his account. I don't think he was really trying to claim them as his, he just wanted them to remind him of the octopus he saw. Not a big deal, and I never brought it up with him, but it is uncool and stuff like that makes me less inclined to share. Even if there is no money involved people should be better about crediting and stuff, and then maybe people will be more inclined to share.
posted by snofoam at 8:58 AM on June 26, 2009

orme: "This is exactly why I scratched a copyright logo into the lens of my camera."

which oh hey by the way, thanks for not mentioning that when you sold it on ebay, jerk. "slightly used" my ass.
posted by shmegegge at 9:06 AM on June 26, 2009 [1 favorite]

I would be downright flattered if someone took my Flickr photos and used them to decorate their house.
posted by dunkadunc at 9:23 AM on June 26, 2009 [1 favorite]

Nelson:
* the effect of the use upon the potential market for or value of the copyrighted work.

She's using the whole photograph, and nothing but the photograph. And she's depriving the photographer of the market of selling her the photograph. Yes, in practice she'd never buy it, but now that's doubly true since she can just steal it instead.

Under your definition of this point there is no such thing as fair use, the term becomes meaningless. ANY use means you didn't pay for it. To pick an extreme example, a reviewer could be forced to buy a copy of a work for every copy of the review that quotes it. But all non-commercial uses, which are explicitly granted by an earlier point, could conceivably fall under this point.

In other words, if the intent of the law was to outlaw use that could ever possibly, conceivably be sold, then why have the point granting non-commercial uses?
posted by JHarris at 9:30 AM on June 26, 2009

If I obtain the rights to listen to a song, whether it was free or paid for, Fair Use allows me to transfer it from tape to CD to mp3. I can listen to it on tinny computer speakers, headphones, or a $10,000 system in my living room.

How is different, then, to be granted the right to view a photo on Flickr at 600 dpi, free or paid for, and to transfer it from one medium to another, or to view it on paper rather than LCD? The answer is that these two cases are analogous, and Fair Use applies.

If she gives a print to her friend (even for nothing!), I'd agree she's breaking copyright law. If she displays the print in public, or in the shared parts of her office building (not her cubicle wall) as a corporate decoration, that's breaking copyright law. However, as long as she's using the photo in the limited manner that she describes in the article, it's Fair Use. If people don't want others to Fairly Use their work at 600 dpi, they should upload it at a lower resolution.

Copying an entire textbook is not illegal. The university libraries will not let you copy their textbook because that would be illegal distribution. The copy centers won't let you copy a textbook because they have sufficient reason to believe you have motive to give or sell that copy. However, if you wanted to copy the text book because you wanted a low-quality copy to read chapter-at-a-time in the bathroom and then toss, that's Fair Use.
posted by explosion at 9:34 AM on June 26, 2009 [2 favorites]

All of these arguments are pretty interesting, but for me, a lot of this boils down simply to "Go fuck yourself no matter who you are, I am going to do whatever I want in the privacy of my own home, including LIGHT UP THIS HUGE ASS BLUNT RIGHT NOW FUCK YEAH 420 420 420 420 420 420 420 420"
posted by Damn That Television at 9:39 AM on June 26, 2009 [1 favorite]

JHarris, I agree, the "potential market" thing is complex. I'm not a lawyer, as is I'm sure painfully obvious. But my understanding is the question here is whether the use of the copyrighted material destroys the market for the sale of that same material. It's not Fair Use to download a photo and print it and hang it on your wall because if it were then there's no longer be a market for people selling photographs. It is fair use to use a quotation from a book, or show a sample from a photograph, or indeed link to and view a full resolution copy of a photograph under limited circumstances because those acts don't destroy the market for that photograph.

The whole foundation of intellectual property is shaky. American law and its antecedents have a detailed history of what "property" is. None of it applies very well to information or intellectual property. We have some precedent for intellectual property law in the history of books, sheet music, piano rolls. It's fascinating stuff, inconsistent, problematic. And part of a vital debate about the rights of creators and the rights of consumers. To see all that ignored in a breezy NY Times Style section article is irritating.

BTW, I'd be flattered if someone would print my photos and hang them in their house, too. That's why I publish them on Flickr with the appropriate CC license making it clear that use is OK. Every single Flickr user has either made a conscious choice about the licensing of their works or else in the absence of choice has retained full copyright and granted no license. Their rights should be respected.
posted by Nelson at 9:39 AM on June 26, 2009 [1 favorite]

I have everything high-res on my Flickr page because I photograph a lot of small-time musicians who then use the photos in promotional materials. I don't want to have to email someone a bunch of huge files everytime someone wants a few profile pic on Myspace.

I like to get a heads-up when someone uses my work for something, yeah. Unless it's to jerk off to. Please stop telling me about that usage, Flickr pervs.
posted by Juliet Banana at 9:55 AM on June 26, 2009 [1 favorite]

Even if she is just using Creative Commons marked images, it's just plain rude not to contact the photographer. ... It just feels weird and iffy to be using other people's images without a flickr mail at the very least.

What do you mean "using my images"? I'm using some images on Flickr right now because I'm browsing the site. When does it cross the threshold into being rude without dropping the photographer a line? If I save one to my pictures folder? If I set one as my desktop image? If I print one out?
posted by ODiV at 9:57 AM on June 26, 2009 [7 favorites]

Oh geez, I can't believe the ignorant comments on Metafilter so far.
...
The four factors of fair use are all relevant. It's not some magic of "if you satisfy one of these criteria you are suddenly in the realm of fair use".
...
But that's not how US copyright works.

IANAL, and I don't know what your credentials are, but given your first statement I'd be interested to hear them, because in my admittedly naive reading of 17 U.S.C. § 107 I see that it says:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include...

Which doesn't tell me how these factors should be considered, whether they all need to be satisfied completely, or whether satisfying any of them is sufficient.

Again, I'll cop to being ignorant, and I believe its entirely possible that you are more well informed on the subject than I am, but in my ignorant opinion what Zjawinski did easily satisfies the terms of fair use.

You're the one who has been throwing around inappropriate analogies about what constitutes a market or theft of an object.
posted by Reverend John at 9:58 AM on June 26, 2009

Given that there are plenty of places to get free public domain photos, I don't understand why it wouldn't be better for her to recommend that. Flickr might have more, but once she started to think about copyright why not just do it ..... right?

Do a Google search for free public domain photos. Thousands of photos, all 100% free to use for whatever you want.
posted by y6y6y6 at 10:05 AM on June 26, 2009

Take that, The Man!
posted by Artw at 10:06 AM on June 26, 2009

I have a simple approach to this.

If you complain I will undo anything I ever did that had anything to do with your work and I will attribute all the removals clearly, unambigously and loudly to you.

I don't believe in intellectual property but since you do I will make sure and attribute your foolishness to you. So you can own that too.

Copyright 2009 Fourcheesemac. All Rights Reserved.
posted by fourcheesemac at 10:07 AM on June 26, 2009 [3 favorites]

Also if these Flcikr people didn't want their photos blown up and used to decorate someones house then they'd be selling T-Shirts and making live appearances.
posted by Artw at 10:07 AM on June 26, 2009 [2 favorites]

I think a how-to piece like this should clearly cover a couple things that were not covered in this feature: how to make sure you are doing it legally, and the proper etiquette for doing this. Not including these things is irresponsible. If you are the NY Times and you are running a business based on the quality of your content, then these omissions are even more regrettable.
posted by snofoam at 10:09 AM on June 26, 2009

You see, it's all about the pixels.
posted by LordSludge at 10:15 AM on June 26, 2009

Intellectual property attorney here. If someone asked me if it was okay for them to print photos from Flickr and put them on their wall, I'd answer this way:

It's almost certainly fair use. But the problem with fair use is that it's a defense to infringement, and very fact specific, so you won't know if you're right until you've already been sued and have to defend yourself.

That said, the chances are pretty low that your average Flickr user (a) cares, (b) has bothered to register the copyright in their work - without which they can't bring an infringement claim (they can register after the fact, but that kills the damages calculation) - and/or (c) has the funds to prosecute a claim when the potential damages might pay for the cup of coffee she spit all over her monitor when she found out what you were doing.

So unless you're using the work of a professional, well-funded photographer with a mean streak, go for it.
posted by schoolgirl report at 10:22 AM on June 26, 2009 [17 favorites]

This is so obviously Fair Use it's kind of mindboggling we are even having this discussion.

This bears repeating. Over and over and over again.
posted by Cool Papa Bell at 10:23 AM on June 26, 2009 [4 favorites]

I should add as (a)(1) will find out. So yeah, don't write articles about it in the NY Times.
posted by schoolgirl report at 10:26 AM on June 26, 2009

"It's not Fair Use to download a photo and print it and hang it on your wall because if it were then there's no longer be a market for people selling photographs. It is fair use to use a quotation from a book, or show a sample from a photograph, or indeed link to and view a full resolution copy of a photograph under limited circumstances because those acts don't destroy the market for that photograph."

I'd argue that there isn't any assumed market for prints of every photo on Flickr. So just because I've got your work on my wall doesn't mean there was a market for me to negatively impact. I'd make you prove that you're a professional photographer who makes a living selling prints of your work. In which case, you might have a hard time explaining why you're allowing anyone who wants to do download high rez copies of your stuff from Flickr.
posted by schoolgirl report at 10:26 AM on June 26, 2009 [4 favorites]

Give credit where credit is due.
posted by artdrectr at 10:29 AM on June 26, 2009

I believe (though I am tech dumb) that Flickr has an option of inserting something over a photo so that it can no be duplicated. That said, I know someone offered a workaround, posted it, and then Flickr shut down the workaround (made it not work)...but there is some bit of code that can be inserted so that all flickr photos can be downloaded. But if someone does insert something to prevent downloading, that seems to be sending a signal that they do not want it copied.
posted by Postroad at 10:30 AM on June 26, 2009

Never underestimate the internets ability to rip off peoples work and then get into an outraged moralising huff if anyone even slightly questions it.
posted by Artw at 10:32 AM on June 26, 2009 [3 favorites]

Give credit where credit is due. ©
posted by artdrectr at 10:49 AM on June 26, 2009

It's a bit disillusioning to see that for so many people neither ethics nor etiquette seem to be considerations at all, just whether you can get away with it.

It also seems like we're collectively ignoring the direction we are headed with IP. We're just dying to live in a world where no one can make a living from music, art, photography, writing, etc. I'm not sure what is so great about that.
posted by snofoam at 10:53 AM on June 26, 2009 [2 favorites]

But if someone does insert something to prevent downloading, that seems to be sending a signal that they do not want it copied.

Agreed. Isn't this what watermarks are for?
posted by gushn at 10:55 AM on June 26, 2009

It's a bit disillusioning to see that for so many people neither ethics nor etiquette seem to be considerations at all, just whether you can get away with it.

Are you saying that you don't think this case is Fair Use, or that Fair Use itself is unethical?

If it is Fair Use, then it should already be priced into the economics of the profession, no?
posted by gushn at 10:59 AM on June 26, 2009 [1 favorite]

posted by mathowie she only links to the Library of Congress photostream which publishes photos by government photographers of bygone eras and they are in the public domain. Stuff in the public domain doesn't have copyright of any kind, so printing and display is totally fine.

I believe (but I am not certain) that images such as those taken by the WPA photographers are not in the public domain per se, but rather, they belong to the Library of Congress in that the photographers were being paid by the WPA, so the images belong to American taxpayers. I know you can order from the LoC prints of famous photographs by Walker Evans or Neil Armstrong.
posted by mattdidthat at 11:00 AM on June 26, 2009

snofoam: There's a huge difference between "This is a cool picture. I will print it out and hang it on my wall." and "Damn do I ever want to live in a world where no one can make a living from photography!"

I'm seeing a lot of cool local artists and photographers doing really well. The Internet is providing a global marketplace.

The way I'm hoping it will go is that local artists will do a lot better because of commissions, unique products and live events and that factory manufactured "art" will become less prevalent.
posted by ODiV at 11:01 AM on June 26, 2009 [1 favorite]

Another thought: if she sells her house, and the wallpaper has value to the buyer, then she will have profited from someone else's work. Or is it Fair Use to profit from someone else's work in this way? I'm not a lawyer, just someone who likes to look at both sides of an argument. Of course, she could just tear it all down and put something else up and avoid any problems. In this litigious age, I would. Unless the buyer was offering an extra fifty grand, in which case, hmm, I could sure use fifty grand. Heh.
posted by jamstigator at 11:05 AM on June 26, 2009

Everyone remember those glory days twenty years ago when it was so much easier to make a living as a non-commercial artist?
posted by Stonestock Relentless at 11:06 AM on June 26, 2009 [7 favorites]

"We're just dying to live in a world where no one can make a living from music, art, photography, writing, etc."

I'm not sure where you get that impression. Care to address that?

I fail to see how pixelated prints from Flickr will take money from any artists. People that want a crappy print like that are never going to pay someone $500 for a real print.
posted by y6y6y6 at 11:07 AM on June 26, 2009 [4 favorites]

Another thought: if she sells her house, and the wallpaper has value to the buyer, then she will have profited from someone else's work.

Yes. This is why wallpaper designs are copyrighted, and why there are certain rights to paint colors (or rather, the descriptions of paint colors and numeric reference systems for colors, like the Pantone system).

That said, you could also make the counter-argument that it was Fair Use to print out a photo and hang it in your house, and the house itself becomes an architectural artwork ... and then it's turtles, turtles, turtles all the way down.
posted by Cool Papa Bell at 11:12 AM on June 26, 2009

This is a non-issue, an article in desperate search of outrage, baiting dumb kids born after Sony Corp. of America v. Universal City Studios, Inc. to wage epic battle against the forces of thieves that would steal the world's next Mona Lisa without so much as a by-line. Oh, the humanity!
posted by Civil_Disobedient at 11:20 AM on June 26, 2009

snofoam: "It's a bit disillusioning to see that for so many people neither ethics nor etiquette seem to be considerations at all, just whether you can get away with it.

It also seems like we're collectively ignoring the direction we are headed with IP. We're just dying to live in a world where no one can make a living from music, art, photography, writing, etc. I'm not sure what is so great about that."

the data doesn't support your hypothesis.
posted by shmegegge at 11:21 AM on June 26, 2009 [1 favorite]

I think this comment from the NYT site sums it up best:

whether illegal or not, your decorating practice is unbelievably unethical. i guess it all depends on what kind of person you want to choose to be.
posted by localhuman at 11:22 AM on June 26, 2009

unbelievably unethical

Is buying made-in-China wall hangings from Big Box Store #5 better, ethically, I wonder? Or just easier to not think about?
posted by ODiV at 11:29 AM on June 26, 2009 [6 favorites]

I'm a professional photographer, I use Flickr, and I think Sonia Zjawinski is an asshole and a hack writer.

I really see no excuse for not asking permission from the individual artist. We're talking about a website that has a button to message the individual right above every image and rights information right below. Some of you are saying you would be ecstatic if someone wanted to hang your work on their wall... well so would I, but how the fuck would you ever know if someone is just right-clicking their way to home decor? Sonia is apparently willing to pay the framer for the frame, the mat cutter for the mat, but considers it unthinkable to even let the artist know, much less ask if maybe she can send them a few dollars as a thank you.

She could have written an article about how to search for CC licensed photos where the artist has already given permission for things exactly like this (Flickr makes this so easy it astounds me that she didn't just do this). She could have written about how the internet is this amazing tool for connecting art lovers with young, emerging, accidental, or just everyday shutterbugs with great work - outside of the art world, gallery walls, or other traditional venues - so that people can get work for cheap or free and artists can connect with fans. She could have written about how technology has broken down the walls between people and how Flickr can facilitate these kinds of connections between actual, real live people.

Instead we get a chorus of rationalizations from people who don't want to spend a dime on any content, ever, no matter how much they like it or how small the person they're taking from is. It doesn't matter if it's just common, human decency to spend 5 seconds typing "Hi I loved your photograph, do you sell prints? If not can I buy you a beer or something?" - let's all put on our armchair lawyer hats! let's talk about how intellectual property is the bane of modern existence! let's talk about fair use and intrinsic property rights! let's debate the ethics! let's talk about how much the RIAA sucks! let's talk about how great the "exposure" of being unaware that some cheapskate hung your work on their wall is! let's talk about how the fact that you stole something is proof there's no market for it and you wouldn't have paid for it anyways - ha, take that money grubbing artist, you are so pre-Web 2.0!

And for the record, I don't sell prints or deal with consumers at all, so I could care less if someone wants to make a print to hang on their wall. I would at least like to know that they enjoyed it - that would make my day. I would at least like the opportunity to sell them a decent print for cheap - because I can make a print that will kick the shit out of anything their crappy desktop printer can do. I would at least like the opportunity to talk to someone who loves photography as much as I do - because that is what is exciting about the internet and all the new tools for artists like Flickr.
posted by bradbane at 11:32 AM on June 26, 2009 [13 favorites]

Are you saying that you don't think this case is Fair Use, or that Fair Use itself is unethical?

I guess I'm not saying either, because I really don't know. I'm saying that it is disappointing that the conversation seems to be centered around "can I get away with this" versus "should I do this" and "what's the polite way to do this." I mean, we're talking about someone sharing something with us. It's not a big company trying rip us off. I don't want to sound like a hippy, but isn't there a difference between a world where technology enables peer-to-peer sharing, collaboration and communication versus a world where technology just enables us to take stuff? To me, ethics and etiquette are important in the first situation, and not so much in the second.

As far as the world in which no one can make a living through intellectual or artistic pursuits, I didn't mean that printing from flickr=that. But it clearly is a trend (see: music) and the mindset of take what you can seems to be heading irreversibly that way. Printing from flickr could be part of it. Sure, a printout from flickr does not mean a lost sale for a $500 print. But in a world of flickr printouts, the only people making money are factories making paper and printer ink. And I think once people get used to paying nothing, I think they are much less likely to go back to paying something.
posted by snofoam at 11:46 AM on June 26, 2009 [2 favorites]

But my understanding is the question here is whether the use of the copyrighted material destroys the market for the sale of that same material.

My understanding is that uploading high-resolution print-friendly versions of photographs to a public website where they are freely available for download destroys the market for the sale of that same material.
posted by dersins at 11:50 AM on June 26, 2009 [3 favorites]

Instead we get a chorus of rationalizations from people who don't want to spend a dime on any content, ever, no matter how much they like it or how small the person they're taking from is.

What? Pretty much the only way I buy art now is over the Internet from individuals or from local artists. Just because I don't think printing out a picture from Flickr at the offered resolution isn't a big deal doesn't mean I'm a huge freeloader. I have precisely one printed photo hanging on my wall (and it's Boba Fett done in the style of Warhol's Marilyn Prints).
posted by ODiV at 11:53 AM on June 26, 2009

"is a big deal", sorry. Too many negatives there.
posted by ODiV at 11:55 AM on June 26, 2009

See also: Making mix CDs from Metafilter Music. Until now I wouldn't have thought that anyone would have a problem with it. But now apparently I want to bring every indie band's livelihood crashing down.
posted by ODiV at 11:57 AM on June 26, 2009

the data doesn't support your hypothesis.

I'm not sure what overall unit purchases means exactly, but music sales have been declining since 2000 or something. That is not particularly controversial. Also, book sales fell in 2008. It is really awesome that you use the anchor text "the data" to link to an article Cory Doctorow wrote about his own book.
posted by snofoam at 12:04 PM on June 26, 2009

I'm going to blow up pictures of Sonia Zjawinski and her articles and use them to decorate my house. Since her image and articles are being used by me for my own, private, noncommercial use and I’m not selling these things and not charging admission to my house, I think I’m in the clear.
posted by mattdidthat at 12:07 PM on June 26, 2009

I don't want to sound like a hippy, but isn't there a difference between a world where technology enables peer-to-peer sharing, collaboration and communication versus a world where technology just enables us to take stuff?

I think you might be predicting a rather more drastically pernicious future than is reasonable, here. If we take this contrast you've set up here:

1. peer-to-peer sharing, collaboration and communication
OR
2. a world where technology just enables us to take stuff.

which one would you say most accurately resembles flickr? bear in mind that flickr is user submitted and shared, with options for private collection, licensing, copy protection and even print sale.

But in a world of flickr printouts, the only people making money are factories making paper and printer ink. And I think once people get used to paying nothing, I think they are much less likely to go back to paying something.

again, you're predicting this slide down a slope where the bottom is all photographers making no money, and all consumers printing from freely available flickr streams without paying. I'm having a hard time seeing this as a reasonable prediction since flickr requires author submission of material and anyone who doesn't want their material printed has multiple avenues to prevent it including not submitting it to flickr in the first place or not uploading print resolution images.

the key you seem to be missing is authorial agency. Anyone who thinks their images, uploaded to flickr, are not being downloaded or printed has no excuse for making a mistake that foolish. that's what people do with images on the internet. that's part of their purpose.
posted by shmegegge at 12:08 PM on June 26, 2009 [5 favorites]

Another thought: if she sells her house, and the wallpaper has value to the buyer, then she will have profited from someone else's work.

Yes. This is why wallpaper designs are copyrighted. posted by cool papa bell

What? No it's not. First-sale doctrine specifically covers this, and grants the purchaser of the wall paper the right to transfer ownership without getting permission. The copyright is to prevent other wallpaper manufacturers from printing the same design and selling it.
posted by ShadowCrash at 12:12 PM on June 26, 2009

My understanding is that uploading high-resolution print-friendly versions of photographs to a public website where they are freely available for download destroys the market for the sale of that same material.
posted by dersins at 11:50 AM on June 26 [+] [!]

This. Look, it's not like she broke into a photographer's studio/darkroom and made some copies (for personal noncommercial use). She downloaded some stuff the photographer decided to make freely available on the internet. If you don't people printing high-res copies of your photos, don't upload print-friendly versions to flickr in the first place. Nobody put a gun to your head.

Now, you can wish she'd send you some money (or just a note) as a thank you, but I wouldn't expect that she would.
posted by axiom at 12:17 PM on June 26, 2009 [3 favorites]

snofoam: "the data doesn't support your hypothesis.

I'm not sure what overall unit purchases means exactly, but music sales have been declining since 2000 or something. That is not particularly controversial. Also, book sales fell in 2008. It is really awesome that you use the anchor text "the data" to link to an article Cory Doctorow wrote about his own book."

overall unit purchases means music purchases that include individual songs, full albums, eps (etc) through retail venues including digital download (itunes type stuff) and physical product (cds).

the purpose of the links is that music sales are turning around, especially since 2008, and the slump seen since 2000 can be attributed to a number of things, but it is not solely the result of piracy or a "take what you want" attitude. in fact, there is reason to believe that it is not even mostly the result of those two things. the whole reason I pointed to the article by doctorow (thanks for the snark, by the way.) is because he has seen real and actual sales increases by giving his material away. the implication is that traditional business models are experiencing trouble, not because they are being robbed blind, but because they don't fit consumer desires and expectancy anymore. further, progressive business models more in tune with consumer demand can, in fact, experience sales growth.

so, if you want to claim that all creative individuals are going to go broke and fail to make money because nobody wants to pay for anything, there really isn't much to say about that except that the data doesn't support your hypothesis. you're drawing a correlation between declining sales and piracy and ignoring every other contributing factor. it's bad science, you know? further, your ultimate point is so apocalyptic that I find it hard to believe you really mean it.
posted by shmegegge at 12:19 PM on June 26, 2009 [1 favorite]

mattdidthat, you would be in the clear. That might be slightly creepy, but you'd be covered by fair use in the exact same way, and I bet Sonia Zjawinski would agree.

Put it this way, if you wanted to read her article but instead of reading it on your monitor you decided to print it and read it later, would you think you committed theft? And after reading the article, you saved your printed copy so you could reread it as often as you wanted, would you feel you did anything wrong?
posted by ShadowCrash at 12:19 PM on June 26, 2009 [1 favorite]

you're predicting this slide down a slope

I'm not really predicting the slide, it is already happening. There is already less money to be had selling music, writing books, writing for newspapers, etc. We are inundated with reality shows partially because it is harder to make money from shows with higher production costs. Sure, each nudge down the slope may be pretty insignificant by itself, but taken together, I think the trend is pretty scary.

What I don't see is any reason to believe that this trend will stop at some point. When will it happen? How? Will journalism get so bad that we'll eventually be, like, "okay fine now I'll start paying"?
posted by snofoam at 12:19 PM on June 26, 2009

ODiV wrote: When does it cross the threshold into being rude without dropping the photographer a line?

When you make a copy of it not necessary and integral to the display of the picture on Flickr, unless it's licensed appropriately.
posted by wierdo at 12:22 PM on June 26, 2009

shmegegge, the bottom line is that neither of your "data" points support your argument. the actual ability to make a livelihood selling music decreased in 2008, the year you were using as an example, just like it has for many years now, and despite some outliers, the same is true for people writing books. sure, you can point to the arctic monkeys as a myspace success story, but they aren't indicative of what is going on more broadly.
posted by snofoam at 12:24 PM on June 26, 2009

you're predicting this slide down a slope

I'm not really predicting the slide, it is already happening.

man, if you're going to take me so entirely out of context that the only thing you'll respond to in my comment is the imagery of a slope, i don't know what to tell you.

to re-establish the statement I'd made after the word "slope:" you're predicting this slide down a slope where the bottom is all photographers making no money, and all consumers printing from freely available flickr streams without paying.

which is a pretty substantial part of my point you've chosen to ignore. I even go on to mention that this ending of yours isn't possible since flickr requires submission by the author and that you can't print what isn't submitted in the first place, or what has been submitted at lower than print resolutions.

I even then went on to say, specifically to nail the point home: the key you seem to be missing is authorial agency.

(all bolded sections are direct quotes from my earlier comment.)

so, yeah. that's what I was ACTUALLY saying, if you care to address that. if not, then hey. pleasure talking to you and take care.
posted by shmegegge at 12:27 PM on June 26, 2009 [1 favorite]

snofoam, what does the money issue have to do with us being "inundated with reality shows partially because it is harder to make money from shows with higher production costs"? TV is covered by ad revenue, and I don't see how this is impacted unless you mean people are not watching TV b/c they're too busy consuming all their downloaded videos/music. We're suffering the massive amount of reality shows b/c networks are cheap and want to maximize profits. If just as many people will watch reality tv, why spend money on series where you need to renew contracts every few seasons?

And if production costs are to be used as an argument, I'd point out the record movie budgets we see (100 million dollar budgets seem pretty common these days) to argue against it.
posted by ShadowCrash at 12:27 PM on June 26, 2009 [4 favorites]

snofoam: "shmegegge, the bottom line is that neither of your "data" points support your argument. the actual ability to make a livelihood selling music decreased in 2008, the year you were using as an example, just like it has for many years now, and despite some outliers, the same is true for people writing books. sure, you can point to the arctic monkeys as a myspace success story, but they aren't indicative of what is going on more broadly."

yeah, they do support my argument. the bottom line is that you're arguing from a position that ignores too many other factors of creative sales, and ultimately making the point that all artists will be broke and have their work stolen, which is a laughably unsupportable point.
posted by shmegegge at 12:29 PM on June 26, 2009 [1 favorite]

posted by schoolgirl report (b) has bothered to register the copyright in their work - without which they can't bring an infringement claim (they can register after the fact, but that kills the damages calculation)

Serious, non-snarky question: My understanding was that when a work is created, it's copyrighted. How does/can one "register" a copyright? I do a lot of work with marketing and branding firms and we frequently provide consultation for Circle-C, Circle-R, and TM issues, so I'm very interested in this issue.

(I'm assuming you didn't mean register a trademark, since you're an IP attorney.)
posted by mattdidthat at 12:33 PM on June 26, 2009

Bradybane, I agree that it would have been a nice gesture for the author to thank the people who's work she used.

That said, I don't think she can fairly be called an asshole for not thanking the creator of the works she printed. If the person posting the work online wanted to know about any time someone made a print or saved a copy of something, they could say so. If in this hypothetical instance, she saw and ignored that request, it may make her a jerk, but this is just speculation.

I would prefer to know if someone likes something of mine on Flickr enough to hang it on their wall, but I don't really care if I never hear from them. If I did, I always have the option of not giving public access to files large enough to make high res 12X18 prints from. Instead, I could say I would be happy to make a nice print for the cost of materials, or whatnot. Alternately, I could ask that people tell me if they like my work or make prints of it.

The point I'm trying to make is that I don't think anyone has any right to be upset about people unbeknownst to them making crappy ink jet 8½x11 prints of their work if they make freely available online files large enough to make those prints, especially if they don't make it clear that they want anyone using them to let them know.
posted by [expletive deleted] at 12:35 PM on June 26, 2009

Bradbane, sorry.
posted by [expletive deleted] at 12:37 PM on June 26, 2009

mattdidthat, you're correct stating that work is copyrighted in the US as soon as it is created. But the United States offers registrations for copyright. Check out this pdf. Page 7 goes into registration.
posted by ShadowCrash at 12:38 PM on June 26, 2009

I really see no excuse for not asking permission from the individual artist.

It would be admirable of her to send you a note of thanks or a few dollars, but I hardly think that she is an "asshole" for not doing so if her use is an appropriate application of Fair Use.
posted by gushn at 12:42 PM on June 26, 2009 [1 favorite]

Right. But my understanding was that you don't need to register copyright unless you intend to sell or distribute the work. Yes?
posted by mattdidthat at 12:43 PM on June 26, 2009

It doesn't matter if it's just common, human decency to spend 5 seconds typing "Hi I loved your photograph, do you sell prints? If not can I buy you a beer or something?"

The reality of giving stuff away for free on the Internet is that not a lot of people are going to actually contact you to tell you how great you are and ask if they can give you money. My current desktop on my laptop is a vector drawing from some random person on deviantart. I see it every day when I power up my machine (before it gets covered up by a dozen other things). I have no idea who the artist is that created it and they don't know me as anything other than an increment in their download statistics. This is how the vast majority of the Internet works; we all see, listen to, play, and enjoy all sorts of content on the Internet and the creators of those things get very little direct positive feedback from any of it.

So, on the one hand, if you put content out there on the Internet that people can download and use, it's unrealistic to expect that you'll get anything at all out of it, including a nice note from someone. But on the other hand, I do think we should all try to make an effort to send a few "Hey, you're awesome" notes to people whose work we use and enjoy. Most Internet media creators are much more accessible than, say, a famous musician or writer, so it's easy to drop someone an email with some kind words. I do it from time to time, and the response varies from no response at all to "Thanks, you made my day." Back in the late 90s when I wrote shareware the vast majority of email I would get would be bug reports/support questions, but I kept a text file of all of the positive comments I got, which made answering the same questions over and over more bearable. When you put something online and see X number of downloads or hits you mostly just have to have faith that people are using and enjoying what you've produced, but it is nice to hear something positive from an actual person.
posted by burnmp3s at 12:44 PM on June 26, 2009 [3 favorites]

Bradybane, I agree that it would have been a nice gesture for the author to thank the people who's work she used.

That said, I don't think she can fairly be called an asshole for not thanking the creator of the works she printed. If the person posting the work online wanted to know about any time someone made a print or saved a copy of something, they could say so. If in this hypothetical instance, she saw and ignored that request, it may make her a jerk, but this is just speculation.

I would prefer to know if someone likes something of mine on Flickr enough to hang it on their wall, but I don't really care if I never hear from them. If I did, I always have the option of not giving public access to files large enough to make high res 12X18 prints from. Instead, I could say I would be happy to make a nice print for the cost of materials, or whatnot. Alternately, I could ask that people tell me if they like my work or make prints of it.

The point I'm trying to make is that I don't think anyone has any right to be upset about people unbeknownst to them making crappy ink jet 8½x11 prints of their work if they make freely available online files large enough to make those prints, especially if they don't make it clear that they want anyone using them to let them know.
posted by YoBananaBoy at 12:44 PM on June 26, 2009

Bradbane, sorry.
posted by YoBananaBoy at 12:45 PM on June 26, 2009

Sorry, shmegegge, I wasn't trying to be misleading. To clarify:

I believe it is already harder to make a living producing art/journalism and various other intellectual pursuits. I'm not sure if there's an exact term, but basically stuff that people read/look at/listen to/etc. for enjoyment or edification.

I think this will continue and I don't see any particular reason why it would stop.

I think at the bottom is mostly crappy content because people can't make a living creating good content. And, sure, take it to the logical extreme, because it does seem like that's where we're heading.

I don't think the key is authorial agency. Obviously piracy is a good example of that not working out. One could also look at newspapers which can't attract an audience online without being free, but can't really support quality editorial staffs with online advertising. You can have a copyright, but if your product is taken anyway or the market does not support a cost, then it doesn't matter.

Maybe newspapers deserve to die and maybe people should only make music for fun, everyone's entitled to their own opinion on that. I just personally find it scary that we are heading in this direction. I also find it maybe a little surprising that overall we seem to be more concerned with how to get stuff for free than making sure people can still make a living off their art or whatever in the future.
posted by snofoam at 12:46 PM on June 26, 2009

mattdidthat, you don't need to register it, but the pdf I linked to gives a few reasons why you might want to. For example, registering it impacts damages you can receive due to violations, or you might want to register it as proof that you did indeed create it.
posted by ShadowCrash at 12:49 PM on June 26, 2009

I believe it is already harder to make a living producing art/journalism and various other intellectual pursuits.

I don't know if I buy that (no pun intended), though I'd be interested to see some figures. It looks to me that thanks to technological advances, a lot of this stuff is dramatically easier and cheaper to produce. Professional photographers required darkrooms, filmmakers required expensive film and equipment. It's not "cheap" now by any means, but much less expensive.

If it is indeed harder to make money doing this, is it because people spending less on this stuff (because of piracy, economic factors, or something else)? Or is it because the middlemen are taking a bigger cut? Or maybe the buyers are purchasing from a smaller, less diverse group of artists?

An interesting question anyway. I don't think you can just make the assertion that it's harder now to make a living making art. The difficulty in making a living is probably always in flux for several reasons.
posted by ODiV at 12:54 PM on June 26, 2009

YoBananaBoy, I didn't defend taking someone else's work on Flickr and putting it in your account, especially if claiming it as your own work.

Besides, you made me flag your post thinking it was a display error. Grrr.
posted by [expletive deleted] at 12:58 PM on June 26, 2009

shmegegge, if you think it is getting easier for authors, photographers, journalists and musicians to make a living, that's fine. I don't agree with you. I think that you have shown that it may be hard to measure the decline and that in some instances people are still successful, which are both totally reasonable points, but don't really contradict the point I was making.
posted by snofoam at 1:00 PM on June 26, 2009

If the person posting the work online wanted to know about any time someone made a print or saved a copy of something, they could say so.

They do say so if it says "All Rights Reserved" below the image. That is pretty much exactly what that means. If they didn't care when people made a print or used it they would make it CC licensed.

It would be admirable of her to send you a note of thanks or a few dollars, but I hardly think that she is an "asshole" for not doing so if her use is an appropriate application of Fair Use.

It's not Fair Use if that photographer makes a living selling prints. Of course you would never know that if you didn't bother to contact them and blatantly ignored the copyright notice right next to the image asking you to respect their rights.
posted by bradbane at 1:05 PM on June 26, 2009

bradbane, they can put anything they want on the page next to the image, or make their living any of a thousand ways. Fair use would not change, though. You either feel that fair use protects this situation or doesn't. Many of us feel it does.

This comment may only be viewed with your left eye. Using both eyes or only your right eye only is prohibited.
posted by ShadowCrash at 1:08 PM on June 26, 2009 [2 favorites]

I also find it maybe a little surprising that overall we seem to be more concerned with how to get stuff for free than making sure people can still make a living off their art or whatever in the future.

People can still make their living off their art, much in the same manner that people have been making money from art throughout the course of human history. Good artists are paid to produce, whether it's Michelangelo from a Medici or Annie Leibovitz from Rolling Stone.
posted by Civil_Disobedient at 1:09 PM on June 26, 2009

People can still make their living off their art, much in the same manner that people have been making money from art throughout the course of human history.

I agree that people have made money from art throughout history, but I am pretty sure they have not done so in the same manner, as your example shows. I do agree that there will be Medici-style patronage of the arts for as long as there are really rich people. But I think the huge explosion in art and other intellectual pursuits supported by mass consumption is at risk. Just as new technologies like records and printing presses enabled these markets, newer technologies seem to have the potential to destroy the markets that support these creators.
posted by snofoam at 1:17 PM on June 26, 2009

I believe it is already harder to make a living producing art/journalism and various other intellectual pursuits. I'm not sure if there's an exact term, but basically stuff that people read/look at/listen to/etc. for enjoyment or edification.

I think this will continue and I don't see any particular reason why it would stop.

well, the thing about trends and predictions is that there can't be hard data to prove what will happen, obviously, but let me throw this out there: it could stop because what we're actually seeing here is not a conflict of artist interests versus consumer interests. what we're seeing here is a conflict of business interests versus consumer interests. we're seeing a world-changing technology that is causing a business model (but not an artist model) to obsolesce. while this is happening, a new rival business model - one more suited to consumer desire - is growing. the resulting tumult is the shift of consumers from one to the other. since it isn't happening at a 1:1 ratio just yet, it looks like an overall slump. soon the shift will happen faster and faster, and it'll look like a meteoric rise, because the consumers are being sold to in a way they're happier with and are responding with increased demand.

now, the rival business model I'm talking about, the new one, is not piracy. it's itunes and hulu and things like that. digital immediate distribution. netflix is blowing blockbuster out of the water, and it's leading some people to predict an infant mortality for bluray, as well, as HD streaming content delivery causes even HD discs to be obsolete. the xbox is about to start delivering full retail game content (as in, the disc-based retail games, like gears of war. not the xbox live arcade titles that already download) as a download to the hard drive. people are predicting trouble for retail outlets like gamestop as not only the xbox but now the PS3 and PSP and wii all start experimenting with digital content delivery. hulu, one of the most (if not THE most) forward thinking television delivery services, now charges more for simpsons advertising than tv does. we're talking an across-media revolution in content delivery and monetization of same. and the guys succeeding are the guys getting in on the new deal, the guys who are flagging and causing such a ruckus about piracy? they're still in the old model. metallica sues kids, and radiohead gives away albums.

now, this is a prediction, but it's an informed one. yes, it may be harder to make a living producting art/journalism, but it's not harder because no one will buy it. it's harder because you have to adjust your strategy. but, strategies adjusted, the world goes on and people continue making money. and that's why authorial agency is the key. you don't just do what you've always done, anymore, and then scratch your head when it doesn't work out as if it wasn't your fault. if you put stuff on flickr, it's your fault if it gets used in a way you don't want. as I said, there are features in place at flickr to protect your work, and you don't have to put print-resolution stuff up in the first place. as you said, there are peer-to-peer sharing services that are different from simple "take what you want" avenues for piracy. flickr is one of the former.

Maybe newspapers deserve to die and maybe people should only make music for fun, everyone's entitled to their own opinion on that.

well, I've certainly heard people say that newspapers deserve to die, but I often think that's just people's way of saying "they brought this on themselves by not being forward thinking." outside of some extremists, I don't thin many people think that newspapers actually deserve to die. but their salvation can only come from themselves. they need to make the changes necessary to adapt to the new market, and nobody can prevent their failure if they don't. we still need actual journalism. after all, what would the blogs link to if there were no newspapers to do the legwork for them? we just won't have as many newspapers because suddenly the world is a much bigger place. we don't need a new york times, and a chicago sun times, and a los angeles times. we need national, if not international, news sources that don't waste time and money printing for a dying audience share, but that still puts their resources into gathering and investigating the news. but we can't do that for them, and we don't have to (and shouldn't) buy their papers out of some misguided sense of loyalty. we have to get our news from what serves us best, and demand more from what doesn't. it's up to them to change. if a newspaper dies, whatever vacuum in content is left will be filled by somebody who will succeed or fail by how well they serve their audience.
posted by shmegegge at 1:21 PM on June 26, 2009 [1 favorite]

If you're an amateur photographer trying to make a living at your art, you need to concern yourself with more than just the picture if you want to survive in the digital age. The photograph is not the product; these two things are not the same. The product is the print. That's the physical thing you're trying to sell. Make your own emulsions, expose your own prints, matte your own frames and maybe then you can get enough to live on.

But I think the huge explosion in art and other intellectual pursuits supported by mass consumption is at risk.

The digital age has indeed unleashed huge opportunities for artists, but the industry requires no more protection than the calligraphers did when the printing press was invented. And while the printing press unleashed enormous interest in secular learning, the calligraphers saw none of the profits for increased demands for books, because the text was not their product. The written word was their product. Yet the art is not dead. It's just that the commoditization has decreased the public's perception of value: when anyone can load up a text editor and select a fancy font, the struggling calligrapher needs some value-added to their product to compete.
posted by Civil_Disobedient at 1:29 PM on June 26, 2009

Of course you would never know that if you didn't bother to contact them and blatantly ignored the copyright notice right next to the image asking you to respect their rights.

Is ripping a CD to mp3s equally wrong? Because, jerk that I am, I didn't ask Bjork's permission that one time. If it's not equally wrong, then why not?
posted by dirigibleman at 1:29 PM on June 26, 2009

snofoam: "It also seems like we're collectively ignoring the direction we are headed with IP. We're just dying to live in a world where no one can make a living from music, art, photography, writing, etc. I'm not sure what is so great about that."

Two points:

1) Even if copyright law were completely flouted and the whole system were to fall apart tomorrow, it wouldn't necessarily follow that it would be impossible to make a living from music, art, photography, writing, etc. I feel like this has been beaten to death in past threads, but there's no reason you can't make a living as an artisan by charging for labor instead of copies of works. Such a system would make some arts much less profitable than they are currently, would probably benefit others, and would force a messy realignment as people figure out which ones work and which don't. But it wouldn't be the End of The World.

2) I don't see any evidence that Flickr is really doing this (even though I don't really think it would be bad if it was). There are a lot of small-time photographers and artists who are just now figuring out how to use the Web to market themselves. Hell, I'm not even a professional, and I've sold the rights to a few photos after local business owners saw them on Flickr and decided they wanted to use them in their advertising and websites. This was without even trying — zero marketing effort.

The Web in general and Flickr in particular are a powerful vehicle for artists looking for exposure, and the internet has created a strong new demand for photographs, for commercial websites. (A local business in the pre-internet era might not have cared about getting a nice photo of their building, if they only advertised in the Yellow Pages and by word-of-mouth; now that they have a web site, they might decide to get one to jazz it up. Stock photos are also bigger because of the 'net.)

Artists who don't change with the times and find ways to work the internet to their advantage are going to get steamrolled. Flickr probably threatens art galleries and other avenues that acted as 'gatekeepers' between art consumers and producers, but doesn't really threaten artists.

There will be no shortage of art in the future.
posted by Kadin2048 at 1:32 PM on June 26, 2009

Reasonable estimates place the revenue lost to illegal photocopying at one to two billion dollars a year in the United States.

If reasonable includes, "hasn't been in print for 20 years or more and if you showed up at the publishers office and got down on your hands and knees to beg them to put it back in print, they'd point and laugh before having security escort you out of the building" sure.

I'm failing to see how this has anything to do with the situation at hand, though.
posted by Kid Charlemagne at 1:35 PM on June 26, 2009

NYtimes employs hacks to write about topics they don't understand, news at 11.

FWIW if I put something online, please be free to steal it, except for where I have explicitly said don't steal this. And I have a fuckton of really horrible pics up at flickr if anyone needs some "arty" wallpaper...
posted by shownomercy at 1:43 PM on June 26, 2009

shmegegge,

your viewpoint makes a lot more sense to me when you elaborate on it in that way. i think it may be optimistic, but if you're right, i'll certainly be happy.

as far as new business models, i think in most cases (for news, media, entertainment, etc.) we have not yet found business models that have proven to be adequate replacements, and it is probably to early to tell. radiohead did fine giving it away, but they could do so partially because they became one of the biggest bands in the world under the old model.

as far as your comments on newspapers, i basically agree, except it's not as clear to me that we need actual journalism. i think maybe a small percentage of the population realizes it is incredibly important, but maybe not enough people. being incredibly important isn't necessarily enough for it to survive. we also don't need really awesome photographers if we can get decent amateur shots for free, etc.

i'd like to think that it's just a slump as we come up with a new business model, and it could be, but i'm not sure how it's going to change, and i'm not sure a new business model changes things if our values don't support the new business.

which kinda gets back to the authorial agency thing. if you post something on flickr with all rights reserved, then yeah, you should still expect that it will be stolen. i don't know that i would say it's your fault, but you knew it would happen. but electronic media are incredibly vulnerable to exploitation and if we are creating in media that are vulnerable, then we should expect every recording, article, and photo to be freely available in pirated versions. they pretty much are. we know drm doesn't work. we can't restrict our art/content the way we used to, no matter what.

so if business doesn't come through to save us, and technology can't keep us from stealing, then all we really have left is our morals and attitudes and generosity, which kind of worries me.
posted by snofoam at 1:44 PM on June 26, 2009

The thing that is frustrating about these discussions is the constant comparisons to the music industry. Like I said, I don't deal with end-use consumers at all. I don't know any other professional photographers who do (and I know a lot) except one or two who shoot weddings. Musicians are playing a completely different game than the vast majority of pro photographers. That is why all the commenters on the A Photo Editor blog are so outraged - they work with art buyers who understand and respect copyright, not consumers who don't give a shit.

The music and photo industries are apples and oranges. I don't care if you make a print of my work, I do care when a writer for the NYT says it's OK to ignore my rights when there are easy to use and abundant tools for finding work that is perfectly fine to reproduce.

I also like to think there is some middle ground between being Joe Blow with a DSLR and a Flickr account and Leibovitz. But hey, if anyone wants to be my Medici I have a huge stack of notebooks here with photo shoots I will never get around to doing because I don't have the money to produce them. That's why I'm sitting here making comments on the internet instead of out making photographs, because making something that isn't shit costs a lot of money - even if the capture and distribution costs are approaching zero.
posted by bradbane at 1:51 PM on June 26, 2009 [2 favorites]

if you think it is getting easier for authors, photographers, journalists and musicians to make a living, that's fine. I don't agree with you

One argument for why artists might be better off with the changes that are happening is that in the current system, the people who really control things and make the most profit are not the artists, but the corporations who own things like the manufacturing and distribution of CDs, DVDs, Newspapers, Books, etc. It's a system where the staff writers for the New Yorker make $70k with no benefits whereas the magazine itself makes $5 billion in revenue a year and the guy who owns it is worth $7.5 billion.

The reality is most of the money people pay for things like music and most of the money that advertisers pay to things like newspapers go to the people who happen to own the music distribution infrastructure and the printing presses. With Internet distribution, anyone can produce and deliver content directly to consumers, cutting out the industries that were effectively middle-men between artists and their audience. A musician for example can't expect all of the money that used to go toward making a CD, shipping it to a store, and taking a hefty profit off the top to go directly to them instead of a record company, but they have a decent shot of getting a better deal than they currently have.
posted by burnmp3s at 1:55 PM on June 26, 2009 [2 favorites]

your viewpoint makes a lot more sense to me when you elaborate on it in that way.

this is metafilter, baby! snark first! elaborate later!

ahem.

i think it may be optimistic, but if you're right, i'll certainly be happy.

which is funny cause I think of myself as incredibly cynical. in the end, I think people are bastards who'll rob anyone blind if they can get away with it, but our saving grace as a species is our laziness. the simple fact is that, mostly, stealing is harder to do than just paying for shit if you can afford it. so I suppose that's the source of my optimism? oddly enough. eh.

i think maybe a small percentage of the population realizes it is incredibly important, but maybe not enough people. being incredibly important isn't necessarily enough for it to survive. we also don't need really awesome photographers if we can get decent amateur shots for free, etc.

maybe. when I sort of put that into effect in my brain, I imagine us encountering a crippled journalism industry and THEN realizing how much we needed it. I then imagine us newly inspired to revitalize journalism. maybe that's more of that optimism, though.

really, the way I think about newspapers these days is that most of them didn't know that they were already paying bloggers to do what internet bloggers do for free. most of the staff writers for local papers were simply rewriting a report someone else wrote. and with multiple papers in every metropolitan area of the country replicating that formula you get hundreds of news aggregators across the country being paid to do almost nothing. you get, what, 30 actual journalists who get to sit in on a white house press conference, right? and they're there to ask the questions that get the answers that become the news. then, hundreds of columnists at papers across the country tell us what those journalists went and asked. in the age of the internet, why even have those columnists? we only need whatever articles those press conference journalists wrote, and maybe not even all of those.

someone once told me that 75% of the news came directly from the white house via the AP wire service, and that most journalists just regurgitate that. if that's true (no idea if it is) then I can't help but feel like it's no wonder the industry is tanking. way too much bloat.

if you post something on flickr with all rights reserved, then yeah, you should still expect that it will be stolen.

well, that's one way to look at it. I don't know that I agree with calling it stolen in the first place. I feel like that's similar to saying "if you hand somebody a photocopy of a book you wrote, you should expect them to steal it." I mean, you gave it to them. right there, you handed them a copy of it. what else were they supposed to do but take it, unless you specifically say "okay, not hand it back to me." but you can't get stuff handed back to you on the internet, so if you want people walking around with copies of your work, you can't put it up there to begin with.

it's another thing entirely if someone, say, went to a gallery - took pictures of your work framed so that they look almost identical to your actual work - and then put print resolution copies on flickr for people to download and print. (what was the name of that artist whose work was photos of other artist's photos?) but that's not really what flickr does, or how it's used, you know? I find it hard to consider stuff like flickr pics stolen.

so if business doesn't come through to save us, and technology can't keep us from stealing, then all we really have left is our morals and attitudes and generosity, which kind of worries me.

ha. that makes sense. far be it from me to think our collective conscience will save us. maybe laziness can, though!
posted by shmegegge at 2:02 PM on June 26, 2009 [2 favorites]

The NYT isn't saying it's OK to ignore the artists' rights or violate copyright. They're saying the artists don't have those rights to begin with. Just b/c an artist wants to prohibit fair use doesn't mean they have the right to do so. People who decide to exercise fair use are not ignoring their rights, stealing, or not giving a shit.
posted by ShadowCrash at 2:04 PM on June 26, 2009

"okay, not hand it back to me." but you can't get stuff handed back to you on the internet, so if you want people walking around with copies of your work, you can't put it up there to begin with.

stupid typos. correction:

okay, now hand it back to me.

if you don't want people walking around with copies of your work
posted by shmegegge at 2:06 PM on June 26, 2009

People who decide to exercise fair use are not ignoring their rights, stealing, or not giving a shit.

I would suggest you actually look up what the criteria for fair use actually is, I'm no lawyer but I don't think it really applies in every case of downloading something from Flickr. If you're a photographer who sells prints (let's say limited edition prints) and someone makes a print of your work without permission that seems to pretty clearly "effect of the use upon the potential market for, or value of, the copyrighted work" which would make it not fair use. I also don't see anything in the criteria laid out by the Copyright Office about noncommercial personal use being fair use all the time either.

I realize fair use isn't set in stone and it's up for debate, but saying "artists don't have those rights, deal with it" is ignorant. No one here is saying artists are trying to prohibit fair use, they are saying that not every instance of downloading and printing a photograph from Flickr is 100% for sure fair use no matter how much you want it to be.
posted by bradbane at 2:16 PM on June 26, 2009

ShadowCrash wrote: The NYT isn't saying it's OK to ignore the artists' rights or violate copyright. They're saying the artists don't have those rights to begin with. Just b/c an artist wants to prohibit fair use doesn't mean they have the right to do so. People who decide to exercise fair use are not ignoring their rights, stealing, or not giving a shit.

Given the Supreme Court's complete disregard for the doctrine of fair use as of late, I strongly doubt fair use is actually what any of us would like it to be. If cases were brought and made it that far, I suspect we'd be left with excerpting for reviews, satire, and perhaps some minor educational uses.

Is there anyone who can cite a decision that actually clearly outlines that copies made solely for private use are fair use? Aside from Sony, that is, which really seems to only apply to the narrow construction of time shifting of ephemeral content, which is vastly different from the discussion at hand.
posted by wierdo at 2:28 PM on June 26, 2009

I believe there are two opposing psychological mechanisms are work here. (I prefer to talk in terms of psychology than ethics, because "ethics" is a bit of a fuzzy term to me, though like most people, my gut knows it when I see it.)

1. If I make something, it's mine. I should get to say how people are allowed to use it.

Because we live in a capitalistic world, this common (genetically-based?) feeling gets expressed in terms of money. But it's useful to strip that layer away for a while, because the core feeling is more important. I highly suspect that makers would feel the same way if we didn't live in a money society. As long as makers feel like people are stealing their babies, they will naturally be upset.

2. If something is in my home, it's mine.

There are exceptions to this, of course. If you ask me if I'll watch your children for you (at my house), I won't think of them as my children. But outside of these sorts of transactions, it's a bit unnatural to think of something IN MY HOUSE as rented rather than owned.

When I listen to some people here -- the ones who are arguing that printing is wrong -- I feel a bit like someone has come over to my house, put a cake on my table, and said, "You can look but not taste." That makes sense in a bakery, which is the baker's house, but it doesn't make sense in my house.

I'm not talking about what's right or wrong here -- I'm just talking about how people tend to feel.

Okay, so my computer is in my house. And on my computer, when I visit Flickr, I see your photo. Now your photo is in my house. It's strange to think of it as not mine.

I don't mean I think of it as a photo I took. I would feel bad if I told a friend that I created your image. I feel it's mine in the same sense that I feel my dining-room chair is mine. It's in my house and no one told me they were just lending it to me. (Maybe that's implied by legal prose on Flickr, but -- again -- I'm just talking about feelings here.)

So it feels very unnatural that I can't, using my printer, print out the pixels on my screen and hang the result on my wall.

I wouldn't feel like a bad person if I did this. Whereas I would feel like I was a bad person if I went into your photo gallery, took a print off the wall, and ran out of the shop without paying for it. You can tell me that printing your image is the same thing, and maybe the law will back you up, but my gut says otherwise.

A third issue is how my "am I doing harm" meter is wired. I'm not going to hit you, because my meter clearly tells me that's wrong. If I think about hitting you, my meter is less sure of whether that's right or wrong. The farther I am from a transaction involving me and a real person, the harder it is to see what I do as bad.

So I print out your picture. I hang it on my wall. How am I doing you harm?

Yes, if I'd bought the picture instead of printing it, you would have made money, but I know I wouldn't have bought it. I would have printed it out for free or not used it at all. So you're not losing money you would have otherwise had.

I might be hurting your sensibilities by using your picture in a way you don't like, but you don't know about it. You don't know me. You're never going to be in my house. So I'm not actually hurting you. I'm hurting some potential you who would be upset IF he knew what I was doing. That's too abstract to trip my I'm-bad meter.

Why am I going on and on about feelings? Because in a healthy society, BEFORE we resort to legal sanctions and name-calling, we first acknowledge human nature and see if we can cater to it.

That DOESN'T mean "it's right if it feels good." It means that people are going to keep feeling the way they feel regardless of what laws you pass, so if there's happens to be a way to placate those feelings, life will be easier for everyone.

So we should deal with the fact that (a) makers are always going to feel ownership, and (b) people are never going to feel like they're causing harm if they use something privately, especially if it's already in their home in some form and if they had no intention to buy it.

Here's my first draft of a solution:

Flickr should make a relaxed version of Fair Use very clear in their terms of service: if you're a photographer, and you choose to upload your image to Flickr, your image belongs to you and people need clearance from you (unless you wave it) in order to use your images for profit or for public presentations (including ones that aren't for profit). But they are free to use your images privately.

If you're a viewer, you are free to use Flickr images in any way you choose, as long as it's in the privacy of your own home. For additional uses, you must contact the photographer.
posted by grumblebee at 2:34 PM on June 26, 2009 [2 favorites]

seems to pretty clearly "effect of the use upon the potential market for, or value of, the copyrighted work" which would make it not fair use.

I'm not a lawyer. But as I understand it, the potential market for, or value of, the copyrighted work is FIRST affected by the author uploading it to flickr in the first place. the use thereafter by flickr users is then a consequence of that, not a cause of it.

but I'm not a lawyer, and I suspect such things could be argued extensively in court before an actual decision on which is right would be rendered.
posted by shmegegge at 2:35 PM on June 26, 2009

Bradbane, I've read the link on fair use. As you stated yourself, its up for debate. You obviously feel this wouldn't qualify as fair use, but many disagree. Including the only poster who identified himself as an IP lawyer. This issue hits a bit close to home for some, but I stand by my statement that this falls under fair use and the rights that you think are being violated do not exist.
posted by ShadowCrash at 2:48 PM on June 26, 2009

"okay, now hand it back to me." but you can't get stuff handed back to you on the internet, so if you don't want people walking around with copies of your work, you can't put it up there to begin with.

I don't think this really works as an example because if the product is digital you don't really have a choice. You're not additionally facilitating copyright infringement, the ease of it is already built into the product. What you sell to someone can be given away or sold by that person, even if they don't have the right to do it. That was part of the point I was making, that in the digital age, often our only recourse to try to get paid for something is to ask people not to give it away.
posted by snofoam at 3:01 PM on June 26, 2009

I don't think this really works as an example because if the product is digital you don't really have a choice.

you could not upload it in the first place. and in the case of printed photos, you could even upload it, but not in a high enough resolution for print. you absolutely have choice where flickr is concerned. movies, music, etc...? sure, that's a concern. but flickr? not really. it's an opt-in service. you either provide the materials to the public or you don't. if you do, then that's part of what that provision entails. if you don't want that to happen, you don't opt in.
posted by shmegegge at 3:08 PM on June 26, 2009

Here's a better explanation of why I feel it's fair use.

I feel the right to hang the picture on the wall or resize the image for non-commercial use was granted as soon as the image was distributed via flickr. Because the end users can resize it as big or as small as their browser/monitor allows, wall mount their monitor and display it, or view it on more than one monitor, or don't think the artist maintains the right to decide what the display medium is. If the end user views the image using LCD, plasma, CRT, e ink or a printed version, what's the difference?

snofoam: What you sell to someone can be given away or sold by that person, even if they don't have the right to do it.

In what case would they not have the right to sell or give away something they own? Perhaps if they only purchased a limited license, but if you sell something to someone, the first sale doctrine explicitly grants them the right to resell the item, regardless of copyright.
posted by ShadowCrash at 3:11 PM on June 26, 2009

to clarify, i was referring to doing something that explicitly is a violation of copyright with something that is by nature really easy to distribute in violation of copyright. for example, purchasing a book in PDF format and then distributing copies without deleting the original file. you could only sell the book in print format, like shmegegge is suggesting, but then that precludes the usage of digital technology, involves killing lots of trees and assumes that the market will allow you to sell in outdated formats indefinitely. the example shadowcrash gives is not what i was talking about, so it isn't relevant. you can distribute things digitally in legal ways and illegal ways and i was referring to illegal ways.
posted by snofoam at 3:23 PM on June 26, 2009

also, i would just like to point out that shmegegge and i are going to have an AWESOME time together at the NYC 10th anniversary meetup! (not sarcastic)
posted by snofoam at 3:24 PM on June 26, 2009

seriously, that party is gonna fuckin' rock. whenever the hell it is.
posted by shmegegge at 3:36 PM on June 26, 2009

also, re: what shadowcrash said, i'm not making a point about whether or not someone can legally print a photo from flickr right now, but simply that digital works in general are easy to steal and neither technological nor legal means are effective at stopping that, so the argument that it's the authors fault for facilitating the theft is only valid if you accept the idea that digital media should be stolen.
posted by snofoam at 3:37 PM on June 26, 2009

Is this about the time I puked on the bus? I already apologised and paid to have it cleaned. What? this information is on the internet? Fuck! That's bad.

The people reading won't know that I'm horny, right?


Oh shitpiss...

I got to go twit this and post the pics on flickr.
posted by Elmore at 4:45 PM on June 26, 2009

There's a followup from Sonia Zjawinski: Are Flickr photos fair game for home printing?. It's pretty good, and answers my primary criticism of the original article's ignoring copyright. Usual ambiguity from lawyers, plus discussion of Creative Commons and other related copyright leadership.

BTW, one argument in this Metafilter thread has been "if you don't want your photos to be printed, then don't upload them hi-res on the Internet". While that may be practically useful advice today, it's not very satisfactory. That road leads down the same path as all the DRM nonsense in music, video, and software and is bad for everyone involved. It'd be better if we could get to a point in the law where digital copies had clear, fair legal protection that people tried to respect.
posted by Nelson at 5:15 PM on June 26, 2009

Yes, say hello for fewer photos for you to check out without big honking watermarks, more photos set to private and hosted via Flickr but shown elsewhere, etc. Worst case scenario, if articles like this keep getting published and people feel ripped off over time: Nothing is shown to all by photographers except the most tossed off shots, along with the worst of the lot of kitty and HDR photos, with giant honking watermarks in ComicSans font.
posted by raysmj at 6:15 PM on June 26, 2009

Quick, someone call the waaahhhbulance.
posted by five fresh fish at 6:50 PM on June 26, 2009

I'm not whining. I was trying to be more comic about it, actually, although I'm serious in believing that this will be Flickr's death. So call whatever the fuck you want, with all due respect.
posted by raysmj at 7:07 PM on June 26, 2009

The reaction to this article is delicious : )

So much outrage on one side where many automatically resort to ad hominem attacks from gut instinct - not based on copyright law.

And I always love it when legal terms are thrown about so wildly that they are stripped of any semblance of their actual meaning.

It's like a 1L law class gone horribly wrong!!

My only advice is that, if she is to have a law suit filed against her by a photographer who claims copyright infringement, be careful who she hires as her attorney.


That said - if I set a Flicker image as the background of my computer screen, is that a copyright infringement? Is that a reproduction?
posted by pwedza at 10:40 PM on June 26, 2009

It's hilarious to hear lay people talk about copyright law.
posted by zekinskia at 2:25 PM on June 27, 2009

The copyright talk has gotten so convoluted.

I'm amazed that so many here argue against financially supporting artists and the creation of new work. As a way of funding one's craft, artists often resort to selling prints at price higher than the cost of materials (sometimes slightly higher; sometimes, in the case of the art world's darlings, much higher). This serves to compensate artists in some small way for their materials and time, both in creating the work in question and in honing the artist's talent. Paying money for both of these things seems to me like a good thing. The article in question seeks to eliminate all the money for the artist, despite the artist having created something of value (enough value at least to want to display it prominently in one's house, in this case). And sure, a digital photo isn't tangible until it's been printed, but that doesn't make it any less real. All other parties involved in the transaction have been paid, from the photo paper maker to the computer maker to the internet service provider to the frame maker to the hardware store that sold the nail now in the wall (and remember, none of these have any value or use, in this particular case, until the photo has been seen, printed, and hung on the wall), and yet somehow, the artist is vilified for wanting a little money from a home decorator using his or her work. In fact, in this case, it's not clear the specific artist has been identified or even cares, but this idea--that some theoretical artist might try to make a few dollars by providing a decoration for someone's home and then get mad when the decorator wants to cut out just the money that goes to the artist--apparently crosses some line of evil and greed that is beyond reproach.

This makes no sense to me.
posted by msbrauer at 4:52 PM on June 27, 2009 [2 favorites]

Just so you know, I printed out your comment and put it on my wall, msbrauer.

Later, I was hoping to come over and take the food out of your cupboards as well.
posted by ODiV at 5:12 PM on June 27, 2009

Sorry for the snappy comment. I'm just frustrated that you read the thread and came to the conclusion that many "argue against financially supporting artists and the creation of new work."

That doesn't seem to be at all what anyone's arguing and I don't really know how you came to that conclusion.
posted by ODiV at 5:21 PM on June 27, 2009

>: the worst of the lot of kitty and HDR photos, with giant honking watermarks in ComicSans font.

I swear, that's all that I'm seeing on Flickr these days.
However, I don't think it's that good photographers are being driven offline so much as that they're being drowned out by all the stupid fucking idiots with bad taste. Now that the barriers to entry are so low (both monetary and IQ-wise) anything that turns up on Flickr Explore seems to be garish HDR kittens sitting in a classic car with a sunset in the background.
posted by dunkadunc at 5:53 PM on June 27, 2009

Just so you know, I printed out your comment and put it on my wall, msbrauer.

Later, I was hoping to come over and take the food out of your cupboards as well.

Sorry for the snappy comment. I'm just frustrated that you read the thread and came to the conclusion that many "argue against financially supporting artists and the creation of new work."

That doesn't seem to be at all what anyone's arguing and I don't really know how you came to that conclusion.

What are they arguing about then, ODiv? People certainly aren't arguing about how to pay the artist. Sure, they're arguing about copyright and fair use and all that, but when it comes down to it all, the original point of the article was finding a way to get decorations for walls in a home without paying the artist. Much of the discussion here about whether it's fair use or not is just a way of justifying not paying the artist for something that was paid for before digital communities made sharing and copying so easy to do (and which often is still paid for), namely, an artist providing a work of art to somebody to hang on the wall.

And, regarding the food in the cupboard argument, I didn't say anything about this being equated to theft. Though I do like the argument that copyright infringement is theft of a sort, I didn't want to bring it up because that gets bogged down too easily. Again, all I mentioned was that these arguments are a way of justifying not paying the artist while still paying everyone else for the materials of something to hang on the wall.
posted by msbrauer at 6:37 PM on June 27, 2009

This isn't about me trying to get something without paying you. I've already gotten it for free. You gave it to me. You sent me a picture suitable for framing and I framed it. And now, instead of charging for your work from now on or instead of trying to sell me something new, you're accusing me of ripping you off.

When the start of your funding request is an ethical condemnation, don't be surprised when I react poorly.
posted by ODiV at 9:50 PM on June 27, 2009

And I don't even print out Flickr photos so I don't know why I'm arguing in here. :P

I do put music from mefi music on my iPod though and I consider that to be equivalent ethically.
posted by ODiV at 9:55 PM on June 27, 2009

anything that turns up on Flickr Explore seems to be garish HDR kittens sitting in a classic car with a sunset in the background.

I'm sorry, I don't understand. You appear to be implying that there's something about that that isn't 100% awesome, and I'm just not seeing it.
posted by dersins at 8:07 AM on June 28, 2009

msbrauer wrote: Though I do like the argument that copyright infringement is theft of a sort, I didn't want to bring it up because that gets bogged down too easily.

It gets bogged down so easily because it is not theft of any sort, however rude it may be. If some jackass decides they want to download a picture I took from Flickr and print it out and sell it, they haven't stolen a thing from me. I still have my picture and any prints I have made.

I may have less of a market for legitimate copies of my work, but that's not theft, just copyright infringement.

Speaking of which, I need to get some prints made. Of my own work. Not somebody else's "all rights reserved" work on Flickr.
posted by wierdo at 9:02 AM on June 28, 2009

Apparently Judge Posner wants to ban hyperlinking to protect copyright.

“Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.”

posted by five fresh fish at 10:30 AM on June 28, 2009

msbrauer: I'm amazed that so many here argue against financially supporting artists and the creation of new work.

Could you maybe be a little more reductionist? Argue that we're preventing artists from making a living, maybe.

Blasphemous as this might sound: There is no moral or ethical obligation to provide financial encouragement for artists to create new works of art. Nor is there a societal imperative to insure that artists have a living wage.

Would it be a good idea to do so? Maybe; I'm not so sure art always does that well when we provide financial incentives for its creation. Art, as far as I can see, is first and foremost a problem-stimulated activity, and so it tends to flourish in times and places where there are lots of problems to be stimulated by. Andrei Codrescu has observed that art tends to flourish most in lean and in very rich times, and suffer in times of modest prosperity. (Though in typical fashion, he didn't get very rigorous or analytical abotu the reasons.)

As an aside, and FWIW: I submit that the art produced in very rich times is generally less relevant to the basic human condition than art that's produced in lean times. But then, I tend to be more interested in directly-manifested problems (where am I going to get money to buy paint?) than in more rarified or abstracted manifestations of the same problem (where am I going to get the money to pay for fancy binding on my grant proposal for that 25'x10' mural i want to bid on?). But that's really a tangent, and I'll cop to that.

(Note use of terms like "tends" and "generally" and "I'm not sure.")

But back on the main point: If the artist's concern is making money off their work -- and why shouldn't it be? -- then they should do their work in such a way that they can make money off it. In 2009, that means not uploading high-res photographs to Flickr if you hope to sell prints of same. In music, it means as it has mostly meant since it became feasible to sell audio recordings, that you do not expect to make money off record sales. This has been true for most musical artists in the same way it's been true that most athletes don't make a living at sports: Only a select few get to make a living off their CDs or their novels. (In that regard, visual artists have had it relatively good and maybe that's why it hurts so much.)

There are lots of ways to make money off art; it's just that they involve labor. Steve Earle has written and spoken often and passionately about this. He's pointed out that he makes a solid middle-class living as a musician without ever being a star and without worrying about piracy, by touring and performing. There are analogous ways for artists in other media to make a living; for cases where there's not an alternate way to make a living in their medium, well, maybe they should work in another medium. That, or give up on the idea of making a living at it.

So maybe the overhead gets to be more than the artist has bargained for -- what they love is creating songs, not performing them, or creating paintings, not hustling the art-scene politics. I'd be with them on those things, incidentally, if an artist were. But again: Neither society nor I have any obligation to make them happy.

I'm sorry if this sounds hard-ass, but this is a fact of grown-up life: Society does not owe a living wage to everybody for following their bliss. And in any case, as far as I can see, art works a lot better -- is a lot more art-like -- when you have to make some kind of sacrifice in order to make it.
posted by lodurr at 7:19 AM on June 29, 2009 [1 favorite]

schmegege: I'm not a lawyer. But as I understand it, the potential market for, or value of, the copyrighted work is FIRST affected by the author uploading it to flickr in the first place. the use thereafter by flickr users is then a consequence of that, not a cause of it.

I was at a Q&A on literary copyright issues w/ an IP attorney a couple of months ago, and my understanding of what she told us parallels yours: You have to have an actual potential to make revenues, that you haven't sabotaged, in order to show harm. And you do need to show harm. But I could have misunderstood.
posted by lodurr at 7:23 AM on June 29, 2009