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As in the case with the OP, it doesn't have to be a legitimate claim, or even fall under the limits of the law (the thing the NOI complaint was filed for, had nothing to do with copyright) for Yahoo to take too-swift action. This is indeed the core problem isn't it? I don't see any mechanism to avoid the worst possible scenario of image, and yes even account deletion should merely two bogus complaints be filed - short of flickr deciding to begin locking questionable images from view and/or backing them up so that a paying customer, if and when vindicated, can have his content back intact.
Posted 34 months ago.
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{addressed to Thomas, not to the poster just above}
Did you read his own statements in the topic he linked to?
Even still, it still wouldn't be censorship to delete someone's account in the wrong belief that they had used the site to post someone else's material. It would be a mistake. Not all mistakes involving deletion of content are censorship.
Posted 34 months ago.
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I'll defend the proper definition of "censorship" at all costs, so it doesn't diminish actual cases (including if Flickr is at fault), yes. I'm not sure what part of "I think Flickr does this whole deletion thing totally wrong" tack I've taken in here, is taking their side. Not taking your side, and your constant cry-wolf watering down of a very important issue, is not the same thing.
Yes, the canned response email was wrong, and that goes hand-in-hand with the whole inability to restore content: they need to do a MUCH better job explaining to people what they did wrong. I don't know if they're busy or lazy, but most of the complaints against them, stem from improper explanation of the reasons for the action taken.
I'd rather not drag the poor guy through the ringer here, since you're the one using him for your own self-promotey, but all I did was visit his web site and guess that it would likely be enough to run afoul of Flickr's guidelines. Both for linking to a commercial site, and a soft-core but still adult site, which Flickr seems to take even more seriously than the commercial stuff.
And yeah, there's TONS of people on Flickr currently violating the "don't link to outside commercial sites" rule. Doesn't mean they can't get spanked for it if they're reported.
Posted 34 months ago.
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" Taking your own photo of someone else's work is not covered under Fair Use "
What about, say, picture of a sculpture in a public park, or a bill board hoarding, or a magazine stand displaying the 'copyrighted' logo of a news magazine?
Would we need to 'pixellate' those in photos before uploading?
Posted 34 months ago.
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Not to sound too over-dramatic about it but you bring up a fair point personne.de.chandigarh - if all it takes is a single fraudulent complaint, you're really only safe putting up shots of you, and only you, removed from any art or advertising - like maybe in your own home against a blank wall or maybe in the woods (so long as it's on public lands).
Taking it a bit to far? Well yes I'll admit to that... but there is a shred of realistic concern in there somewhere, I swear it. ;-)
Posted 34 months ago.
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Did you read his own statements in the topic he linked to?
Yes. I did in fact read his own statement. I've also been in contact with him personally now after the fact. What makes you think his site is a commercial site? Seems to me that it explicitly is not. In fact he even has a poll on the site asking *if* he were to change his site to a subscription site, how much might people pay to visit. *If* There are also not even ads on his site.
But speaking of "commercial" sites. I link to thomashawk.com all the time. I get ad revenue from my blog, in that sense it's commercial. Even more commercial than poor old Flores.
Way back when when I made the decision to begin hosting adverts on my blog I emailed Stewart and asked him if this would be a problem from Flickr's perspective and he emailed me back saying no problem.
The fact that someone included their non-commercial internet site in their watermark as a reason for deletion really is quite beyond any reasonable sense of how things should be done around here.
Posted 34 months ago.
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Thomas Hawk edited this topic 34 months ago.
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personne.de.chandigarh A picture of an artwork has nothing to do with fair use. Fair use relates to reproduction of an otherwise copyright work. Photos of public artworks do not, usually, amount to reproduction of a work but are the creation of a new work.
Think photocopier. A photocopy is almost certainly an offending reproduction. If the photo you take of an artwork is a reproduction of the same type as you would get from a photocopy (exact reproduction, no external context) you might have a problem. If it is not like a photocopy you are quite likely OK.
Disclaimer: This statement is a broadly accurate but grossly simplified explanation. I take no responsibility for any misunderstanding by the terminally bewildered folk of this world.
Posted 34 months ago.
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personne.de.chandigarh
Here is the section of US copyright law that deals with Fair Use
www.copyright.gov/title17/92chap1.html#107
...The fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.
Here's how the courts have interpreted that
“quotation of excerpts in a review or criticism for purposes of illustration or comment;
quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations;
use in a parody of some of the content of the work parodied;
summary of an address or article, with brief quotations, in a news report;
reproduction by a library of a portion of a work to replace part of a damaged copy;
reproduction by a teacher or student of a small part of a work to illustrate a lesson;
reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
Taking pictures of people's copyrighted images/objects is either going to be infringement of their copyright or it's going to be the creation of your own new copyrightable work. But unless the purpose of taking the picture falls into one of the above categories, it's not going to be Fair Use.
And even those exceptions are subject to the Four Factors that the law says must be used in judging whether of not a specific use is "fair".
Posted 34 months ago.
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Regardless of the reason for the deletion and whether that reason was based on fact rather than untruth, it's not censorship, any more than the deletion of the OP's photograph was censorship. This Help topic is about mistakes: mistakes in the issuing of an NOI, mistakes in the information provided through the DCMA, and now (as carryover) perhaps mistakes in the deletion of an account. There's nothing in this that relates to censorship.
Posted 34 months ago.
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I think the confusing factor in talking about "fair use" is that not all exceptions to copyright infringement fall under that category (or, in some other countries, "fair dealing"). In Canada, for example, it is specified in the Copyright Act that a photograph of a permanently installed sculpture in a public place is not infringement of copyright -- but it's not fair dealing either. (edit: another sidetracking, really - but a good place to plug the Licensing Awareness Working (LAW) Group, which exists to provide and link to information just like this)
Posted 34 months ago.
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dictionary.com
censor: an official who examines books, plays, news reports, motion pictures, radio and television programs, letters, cablegrams, etc., for the purpose of suppressing parts deemed objectionable on moral, political, military, or other grounds.
Did an official examine a photostream and supress parts deemed objectionable? Yes. Why yes they did.
Another thing that bothers me about this whole thing is that this particular photographer posted non pornographic imagery of male models. Recently Flickr went through a whole rash of account deletions of similar sorts of accounts. I firmly believe that this case absolutely is about censorship. And it's too bad.
Posted 34 months ago.
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Not to split hairs, but I think it's fair to say that while it's obviously not government censorship, one could make a somewhat semantic argument that flickr indeed is choosing to censor it's customers' streams from images which have complaints against them as is their right under TOS - and yes I believe they should restore them intact IMHO if the accusation is proven false.
When you are not allowed to express something, that is censorship, whether it is legal or not.
Posted 34 months ago.
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I wonder how many minutes until Flickr staff locks this thread too.
Posted 34 months ago.
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makes a good point. Censorship does not have to be *government* censorship for it to be considered censorship. The censors who bleep out the f word on Saturday night live are still censors. You don't have to work for the govt. in order to censor someone.
Posted 34 months ago.
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Copyright Law in NZ is similar in that it is not a copyright infringement to take a photograph of a building or a permanent artwork that is located in public.
'course, that's neither here nor there as far as this actual thread is concerned.
*edit* and the f-word is not bleeped out when SNL is shown here in NZ after 9:30 at night. And we found it amusing when we watched Gordon Ramsay's kitchen show during our latest visit to the US and most of the soundtrack seemed to consist of bleeps. So, it may not be the US govt technically censoring the words, but the networks are certainly doing so because the govt told them they had to.
Posted 34 months ago.
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the point is that censorship does not have to be "government" censorship in order to be considered censorship. Nowhere in the definition does it say that it only applies to Govt. A college newspaper editor who cuts an editorial because he doesn't like what it says is still guilty of censorship regardless of the Govt's position on his content.
Posted 34 months ago.
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True Brenda - indirect govt. influence there. Here I think this censorship is motivated even more by the real fear of "Litigious America" as explained by their legal team most likely. Understandable to an extent, but I think the least they could do is restore these photos if they choose to err on the side of protecting themselves from potential lawsuits at the cost of (sometimes wrongly) censoring their customers until the dust settles.
Posted 34 months ago.
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it is interesting though if this is yet another "mistake" how flickr chooses to deal with it. Rather than own up to it being a mistake and apologizing, and providing a roadmap on how these "mistakes" won't keep happening in the future, instead they lock the two threads where Flores objects to the incident and try to push the whole thing under the rug. I'm sure it's only a matter of Flickr Staff seeing this thread before this one ends up locked as well. God forbid someone criticize either censorship or incompetency whichever of the two it might be.
So much for transparency.
Posted 34 months ago.
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Thomas Hawk I wonder how many minutes until Flickr staff locks this thread too. I hope so. Imagine how exciting that would be. You could do a whole blog post about it. Or your head might explode with the utter joyfulness of it. Calloo cally, o frabjous day.
Posted 34 months ago.
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It really would be too bad if it got closed. After all, the OP didn't ask for it to be hijacked.
Posted 34 months ago.
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it seems all I really have to do is call you out as the Flickr sycophant that you are Ian to get the job done. We'll see eh old chap?
Posted 34 months ago.
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just in case this thread ends up locked, I suppose best to still post a link to the applicable conversation in DMU while I've still got the chance.
www.flickr.com/groups/dmu2/discuss/72157621965201934/
Posted 34 months ago.
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Flickr locks threads when they're derailed and hijacked by others with personal agendas, not that you'd spin it that way when decrying yet another voice silenced fighting the good flight blah blah.
TH: you don't have links to your external commercial site on every single photo page. That's when you'd trip the switch into guideline violation. Flickr staff has often expressed that it's ok for occasional external links, just like ex-staff did for you. But every page, on every photo, is what often leads to deletion.
I hope your newfound friend finds justice. I'm sorry, I mean "justice."
Posted 34 months ago.
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TH: you don't have links to your external commercial site on every single photo page. That's when you'd trip the switch into guideline violation. Flickr staff has often expressed that it's ok for occasional external links, just like ex-staff did for you. But every page, on every photo, is what often leads to deletion.
Laughing Squid does. We use the same advertising agency for our blog ads. And I assure you his account will never be deleted. Hell, Heather's even faved 8 of his photos.
www.flickr.com/photos/laughingsquid
Did you miss the part where I said that Stewart emailed me way back when when I wrote him wondering if this would be a problem and was told no problema? How much more should a blantantly *noncommercial* website not have this problem.
Posted 34 months ago.
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Thomas Hawk edited this topic 34 months ago.
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It's laughable to me that you all are somehow still trying to blame the victim here. You're still trying to grasp at straws and find something *anything* that you can cling to point that Flickr was not in the wrong in this case while deleting Flores' account.
Guess what. They told him they deleted his account because he was hosting content that wasn't his... except that all his content was his.
Then you try and come up with completely irrational explanations as to why Flickr should be vindicated because it was all his fault because he had a watermark guarding his copyright on his photos that mentioned his non-commercial web site. Do you realize how absurd you all sound?
Posted 34 months ago.
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Thomas Hawk edited this topic 34 months ago.
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I do. Looks like personal grudges trump logic here. It's too bad - this is not the kind of unity that will help flickr shape policy that would be more protective of us all against fraudulent accusations.
Posted 34 months ago.
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We should run a sweepstakes on the time it takes Thomas Hawk to write a blog post about this (although I am not sure what "this" actually is.)
My entry is 76 minutes.
Posted 34 months ago.
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We should run a sweepstakes on the time it takes Thomas Hawk to write a blog post about this (although I am not sure what "this" actually is.)
Freedom of speech it's a beautiful thing Pal.
Posted 34 months ago.
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Thomas Hawk edited this topic 34 months ago.
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Well you have one as well don't you? Be the first.
It's lovely you're posting about a 'this' you don't quite understand though.
Posted 34 months ago.
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later all, gotta go watch "Flash of Genius" with mrsth on the Netflix.
Posted 34 months ago.
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Thomas Hawk I am not saying you shouldn't do a blog post - just wondering when you will. Although, given your peculiar understanding of censorship it is not surprising that you are a little confused about free speech as well.
Posted 34 months ago.
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Votes this thread is already derailed and lock worthy... besides. 3e really shouldn't engage in public discussions of his situation especially if it turns out he needs an attorney's help.
I still would like to hear about what comes of the counter-claim, but I'm also not selfish enough to demand 3e report back to us when it is in his best interest not to.
Posted 34 months ago.
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"3e really shouldn't engage in public discussions of his situation".
Of course he should: it affects all Flickr users - if it can happen to him, it can happen to anyone else. The more public information there is on it, the more it will help the next person to whom it happens...
Posted 34 months ago.
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deletion without the possibility of reinstatement should only be employed AFTER the facts in a case have been established
if an account holder can make an image private, I find it hard to believe Flickr can't do the job even better.
as for whether any of this is censorship, it's really very simple...
the act of removing another person's contribution (images, words, whatever) from public view, for any reason at all, is censorship
doesn't matter one iota how right or wrong it is or was to do so.
Posted 34 months ago.
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You can go with such a generic definition, but then it loses any real meaning. When people complain about censorship, it's in a much more specific sense. If someone posts child pornography should Flickr leave it in place so as not to be accused of censorship?
Posted 34 months ago.
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Is there any chance that those of us that aren't Thomas Hawk could just stop humouring him so that this thread has a fighting chance of still being here when 3e gets any further response on this? I, for one, would love to know what actually happens.
Also, clickykbd - how do you think it would be against 3e's interests to keep us posted on this? I just don't see it.
Posted 34 months ago.
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Has the staff commented on this issue? It seems that they've obviously made a mistake in what they considered to be a stolen copyrighted photo.
Posted 34 months ago.
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Flickr weren't acting on their interpretation of the image, they were acting on a legal notice filed under the DMCA.
A perjurous NOI was filed. The claimant lied. That's the mistake...
Posted 34 months ago.
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Mightyhorse Prime Chevaline Photography LLC Looks like personal grudges trump logic here.
Whilst the truth may of stopped TH, in this instance from falsely claiming that HIS photo was removed, unfortunately it hasn't stopped him from making someone's real issue into a TH "Me, me, me" agenda. For that we'd need something on the scale of the Severn Barrage to divert the bore.
Posted 34 months ago.
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To address the questions about keeping quiet. I'm not saying it doesn't benefit US (the rest of flickr) to talk about it in his stead. I'm just saying if 3e has to talk to an attorney to sort this, they are going to tell him it's important (to his case) not to talk about it with others, especially in places where the other party in the case can read it too. Anything he has already said in public could actually be damaging to his position. (Not saying anything he said is, just that it's a real danger).
Any lawyer or attorney among us would certainly agree?
Posted 34 months ago.
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If someone posts child pornography should Flickr leave it in place so as not to be accused of censorship?
Of course not. That is fair, legal, and I would argue morally imperative, censorship - but it's still censorship. When I am posting here or in certain company I will censor my own language so as not to offend - call it the TOS of polite society. Flickr must engage in censorship in order to run itself - I don't see that as the issue at all.
The issue is overzealous deletion in erring on the side of a (fraudulent) complaint - with no chance of restoration. It's like having your car impounded for suspicion of DUI before they even give a breathalizer test and should you pass you still don't get your car back. (possibly a bit over-dramatic but a fair analogy nonetheless IMHO)
 I'm sure 3e's lawyer would advise he keep quiet but I think it's also good that he didn't. This issue is bigger than him or you or me or Thomas Hawk and it needs the light of day.
Posted 34 months ago.
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" Taking pictures of people's copyrighted images/objects is either going to be infringement of their copyright...."
" If it is not like a photocopy you are quite likely OK."
These appear to be opposing points of view, even if not diametrically so.
To illustrate the point further, how could a picture trying to make a statement on times past and, say, using an open periodical on a table be classified? Infringement or otherwise?
Posted 34 months ago.
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Makes perfect sense to me.
This is not infringement:
This quite possibly would be:
Same object, two radically different viewpoints. The first depicts the object, the second essentially reproduces it.....
Posted 34 months ago.
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personne.de.chandigarh The explanation is simple. One is correct. The other is not.
Posted 34 months ago.
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3e
says:
Please be advised that pursuant to 17 U.S.C. § 512(g)(2)(B) of the
United States Copyright Act (the "Copyright Act") Yahoo! has timely
provided the counter-notification submitted by you to the complainant in
this matter.
Provided Yahoo! does not receive notice that the complainant has filed
an action seeking a court order to restrain you, from engaging in the
allegedly infringing activity, Yahoo! intends to advise you that the
material may be reposted, as appropriate on or about August 21, 2009.
So, we'll see what happens next...
Posted 34 months ago.
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That's interesting, and thanks for posting it. Notably they seem to be taking the line that (all being well) 'the material may be reposted', which does seem rather different from their apparent obligation to put it back themselves.
Here's looking forward to the next instalment....
Posted 34 months ago.
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When Flickr deletes an image under DMCA why do they delete the entire photo page? Why not just delete the image and leave the text, comments, faves, etc.? If the image is offending, then why must all of the metadata around the image also be killed. At a minimum if they delete an image under DMCA then the user can use the "replace image" functionality on the site to later go back and reinsert the image after a counter claim is filed. This way if an image has dozens of comments (like my image of Michael Crook did) I could at least save all of that commentary.
Posted 34 months ago.
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Now that would be awesome! They could just leave a "this image not available" gif in place, and completely fulfill their legal obligations under the law.
Since we (and everyone who comments on a page) each "own" the copyright of that content, it can't follow under the scope of the DMCA as deletable content. It's like deleting an entire blog page for having a single illegal photo.
Actually, the gif should be something with the text "this image removed for violating the DMCA" or similar, maybe autogenerated based on the language choice of the user.
Otherwise they'd run the risk of falling into the usual failing-to-inform-the-user-of-what-they-did-wrong and the user just replacing the image not knowing it was taken down for a reason.
And of course, this wouldn't help anyone with a free account, who don't have access to the "Replace" function. But it sure would be a lot better than the baby-bathwater thing they're doing now.
Posted 34 months ago.
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3e could still end up burned despite the seemingly appropriate response to the counter-claim. The whole "no title" conundrum might mean that he still has no idea which photo was removed, thus has no idea which one he is allowed to repost?
This is at least a clear example that flickr should consider not deleting and simply make pages temporarily unavailable. Perhaps they do, we'll see what happens i guess if he keeps posting about it.
Posted 34 months ago.
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clickykbd
He knows which one it was
www.flickr.com/help/forum/en-us/102189/#reply666319
Posted 34 months ago.
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clickykbd wrote The whole "no title" conundrum might mean that he still has no idea which photo was removed Actually, buried in this thread you'll see that Yahoo did give him enough information that he knows exactly which photo it was.
Posted 34 months ago.
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" This is not infringement: "
Can't see how it could possibly be, considering you're the author!
Posted 34 months ago.
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personne.de.chandigarh
Take a look inside a book sometime. The cover artwork is often copyrighted separately and by a different person. Writing the words does not give you copyright over the art used on the cover.
Posted 34 months ago.
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Co-author. I therefore have limited rights over what I can and can't do with it.
The first instance is perfectly fine. The second may not be. It's called "context"...
Posted 34 months ago.
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" Take a look inside a book sometime. "
I don't know if that's a variation on the classic 'Read any good books lately?' line. Though I wouldn't mind receiving links to any authored by the worthy, sometimes overly combative, participants in this discussion.
But often is the operative word. It may not always be the case.
Dr. Keats appears closer to the mark by bringing in the context context.
Posted 34 months ago.
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Or maybe the term "external element" would fit?
Say that, instead of my book (for which I apologise - only example I had to hand at the time...), the examples I gave featured a David Bailey shot of Jean Shrimpton. The first example depicts the item with external elements. The second one is basicaly just a straight copy....
Posted 34 months ago.
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Thanks to iansand who helped to re-inforce a few perceptions I have carried for sometime in my mind.
And to Dr. Keats for clearing up a few doubts I had about the matter.
I had images of this type in mind.
Posted 34 months ago.
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I think Thomas Hawk's suggestion about Flickr just deleting the photo and not the photopage makes a lot of sense and would prevent a lot of the difficulties experienced in this case.
Posted 34 months ago.
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Thanks for the clarifications to my previous post. I had missed the part where they gave the photoID number and jumped ahead to where he posted about the counter-claim.
Even so, he was only able to tell based on his use of a 3rd party backup system that allowed him to correlate the flickr-id with a photo. Still seems quite flawed approach and others in his "untitled" shoes may not be so lucky in the future.
Posted 34 months ago.
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3e
says:
I've received word from Yahoo that the phrase "may be reposted" means that I may repost it.
Anyone in the world may delete any of your photos, at any time, by sending a copyright infringement request. Flickr will immediately delete the photo, and it's up to YOU to replace it!
Posted 34 months ago.
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That's very interesting. The Ewan's link to Chilling Effects summary of the DMCA suggests that 'the service provider is then required to restore the material to its location on its network' rather than merely allowing it to be reposted. (See here for more: www.flickr.com/help/forum/en-us/102189/#reply666006 )
I'm curious to know whether that's an accurate description of the law. If so, it looks as if it may be being broken.
Posted 34 months ago.
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3e
says:
Oh, and another thing - apparently if they don't contest your counter-claim, you have no way of finding out who it is.
Which means they could just do this over and over, deleting all your photos, and you have no way of stopping them.
Posted 34 months ago.
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Just had a look at 512(g)(2)(C) which does indeed seem pretty unequivocal in its insistence that the service provider must replace the material themselves:
www.copyright.gov/title17/92chap5.html#512
Posted 34 months ago.
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I think there are probably three options here:
- Let it go,
- Take proper legal advice and consider suing,
- Go the publicity route and start emailing the EFF, Boing Boing et al.
I think you've done a good and useful thing getting this far, what to do next really is up to you.
Posted 34 months ago.
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The problem is that the DMCA was drafted by big business to protect big business, not criminal infringers. :-> Section 512 protects copyright holders and service providers. It does say that in the event of being service a counter notice, the service provider is to replace the material or cease blocking access to it. But there's no enforcement provision if the service provider fails to replace it.
The statute says the subscriber is entitled to damages in the event of a false notice of infringement, but who can (1) afford to sue and (2) prove damages that make it cost effective to sue?
The two problems here are Yahoo's failure to replace the material and the crappy statute that protects only big business (Yahoo and copyright holders). I'm sorry to say I can't think of any alternatives other than Ewan's. The EFF may be able to get something done with regard to the statute, and the blogosphere may be able to shame Yahoo into replacing materials in the future, but those are long shots. I figure a whole lot more people need to get screwed over this before Congress will remember it's supposed to represent voters not its owners.
Posted 34 months ago.
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3e
says:
Flickr/Yahoo has now confirmed to me, explicitly, that they have no possible mechanism of restoring photos that they have deleted due to a Notice of Infringement.
I consider this to be a pretty serious bug.
If someone revealed that they could send a API call that would delete someone's photos without authentication, I would think Flickr would fix that bug ASAP.
This has the exact same effect, except it's via email rather than http.
Anyone in the world can send an email and have any or all of your photos deleted immediately, and there is nothing you can do to defend yourself against this deletion or have it fixed.
Posted 34 months ago.
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Very good point.
Posted 34 months ago.
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Major bug.
Posted 34 months ago.
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3e By any chance, was your friend Barack Obama?
Somehow I had forget about this topic even though it's only a few weeks old. The way Flickr DMCA notices is crap, it's been crap for years, and as long as it remains crap it makes the DMCA notification process a perfect vehicle for harassment and censorship.
Posted 34 months ago.
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Unfortunately this is true for any media site and the DMCA takedown rules. Facebook, Blogger, YouTube, they all allow online takedown via email, with no identity verification, and pretty much instant removal of content on notification.
Also, those sites require users to re-upload content as well, if a counter-claim is successful.
And those sites as well, remove all content not related to the claim, such as comments and descriptions.
So Flickr is in good company, as far as scary lack of content protections goes.
Posted 34 months ago.
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- I'd be interested to know if there's being any come-back on your ex-friend for filing the false DMCA takedown notice in the first place.
- I see what you did there :-)
I agree with the whole 'leave the page but remove the image' idea that others have supported/suggested, it would make the whole process a lot less painful and fair in situations like this.
Posted 34 months ago.
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I think YouTube now restores content when a counter-notice is filed.
The DMCA and similar laws in other countries have long been used and misused to remove content that the complainants want to suppress on YouTube. For example:
Political speech: www.techdirt.com/articles/20090709/1848305503.shtml
Home videos (with audible background music): www.techdirt.com/articles/20070202/164759.shtml
The EFF has been fighting the good fight a long time: www.eff.org/deeplinks/2009/01/youtubes-january-fair-use-m...
I understand why Flickr doesn't want to get in the middle of the fight, but at least they should have a way to remedy false takedown notices. Flickr should be the leader here, not a laggard.
In the meantime, be wary of posting videos of you baby dancing to a Prince tune! arstechnica.com/tech-policy/news/2007/07/universal-demand...
The YouTube policy:
Various copyright laws, including the Digital Millennium Copyright Act (DMCA) in the U.S., create a 'safe harbor' for service providers like YouTube. This protects YouTube from liability for claims of copyright infringement made against its users. To qualify for this safe harbor, YouTube must remove content if a copyright owner notifies it of content it believes infringes its rights (the 'notice & takedown'). YouTube may restore the material if the uploader files a valid counternotice. The counternotice process allows uploaders to contest claims of copyright ownership, including asserting a fair use or fair dealing defense. YouTube is committed to promptly responding to copyright notices and giving users the ability to respond to these if they believe the notices are mistaken.
It is easy for content owners to have allegedly infringing material removed from the service by following the instructions at youtube.com/t/copyright_notice. To balance the ease of getting material removed, in case of mistake or abuse, users have recourse to a provision for getting material restored. If a user feels that his or her material was misidentified as infringing, a counter-notification can be filed. The counter-notification procedure allows YouTube to restore a user's material if the claimant fails to respond properly. The full details are written here.
Please note, this material is provided for informational purposes only. It is not, nor is it intended to be, legal advice, or a substitute for legal advice.
www.google.com/support/youtube/bin/answer.py?hl=en&an...
Flickr should do better than that.
Posted 34 months ago.
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As a user I cannot "restore" a photo page. Yes, I can repost the image, but the history of that image is gone... the views, comments, tags are gone.
The rules seem to say that if a counter claim is sucessful then the deleted material must be restored... therefore the responsibility must be flickr's. Their current system does not allow them to fulfil their legal obligations.
A restore function must now be moved to the top of the developers list.
Posted 34 months ago.
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The rules say that if a counter claim is succesful, the deleted material may be restored. Unfortunately, Flickr has placed a low priority on the ability to undelete accounts and images, and it invariably leads to high-profile actions that can't be reversed.
Posted 34 months ago.
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So the current situation is, if your photo makes Explore, and the gamers decide to remove it, all they have to do is file an NOI, and not only will your photo drop out of Explore, but Flickr will remove not just the image, but the comments, etc.
Last week I would have called that a tin-hat scenario. This week, I'm not so sure.
Posted 34 months ago.
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Wow. A member of the Cabal now sees the light.
Posted 34 months ago.
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"So the current situation is, if your photo makes Explore, and the gamers decide to remove it, all they have to do is file an NOI, and not only will your photo drop out of Explore, but Flickr will remove not just the image, but the comments, etc."
Add to that the reflagging that has happened after people maliciously flagged explored images last week and I share your concerns Colleen. Maliciously filing NoIs is just the next step
Posted 34 months ago.
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I was just thinking of that.
It appears that anyone with a vendetta can do the same thing to any photo or group of photos, including an entire stream.
And I just renewed my pro account.
Posted 34 months ago.
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Looks like flickr left the barn door open and the bull got out.
Catching that rascal could be a little more problematic.
Posted 34 months ago.
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so colleen , did you see flickr censor the image today,?
Posted 34 months ago.
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I'm really quite concerned about 3e's statement here:
www.flickr.com/help/forum/en-us/102189/page2/#reply669641
that if they don't respond to the counter claim you never find out who it was that requested the takedown?
Posted 34 months ago.
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Appears that under US law, the service provider is *required* to restore the content.
Rut Roh
Posted 34 months ago.
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flickr staff censoring political speech - tin hat material
jealous, petty, flickreeno (flickr user) filing false NOI - within the realm of possibility.
Posted 34 months ago.
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Ѕhims There's no requirement to restore content in the DMCA. Some service providers just pull the plug on the whole account to avoid any possibility of a lawsuit. GoDaddy is notorious for selling out their clients.
Posted 34 months ago.
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SIR: do you mean that image you posted to the thread after being told to post a link instead (same image as your icon)? And they left the link? You really should go look up the word "censor". It does not mean what you think it means.
Even worse, the image you posted wasn't the image at issue in the thread. That was the image stolen from the artist and reworked into a work that Time had no claim on, or at least wasn't posted to Flickr to test it out. Way to be so overtly misleading.
I think people are forgetting with this sudden paranoid panic about the NOIs: it's perjury to fake one. At what point was there a rash of fake NOIs? Did it happen to someone and I missed it, or was it just jumped on because the conversation was getting boring?
Posted 34 months ago.
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jakerome
Actually there is a requirement.
From the Copyright Office website
frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_co...
This is from Title II of the Digital Millennium Copyright Act, ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION, commonly referred to as the "safe harbor" provision, that protects ISPs from being liable for copyright infringement based on their hosting of the infringing material.
REPLACEMENT OF REMOVED OR DISABLED MATERIAL AND LIMITATION ON OTHER LIABILITY.—
(1) NO LIABILITY FOR TAKING DOWN GENERALLY. (this spells out that, with the exceptions in paragraph (2), an ISP cannot be held liable for removing the material.)
(2) (2) EXCEPTION.
unless the service provider—
(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;
(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and [emphasis added]
(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, [unless the ISP gets notice from the person who filed the NOI that they have started the court case]
(3) CONTENTS OF COUNTER NOTIFICATION [what the Counter Notification has to include]
(A) A physical or electronic signature of the subscriber.
(B) Identification of the material that has been removed [and where it was located before it was removed]
(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, [and some stuff about what-if they are outside the US]
(4) LIMITATION ON OTHER LIABILITY.—[if the ISP complies with paragraph (2), they can't be found liable later, even if the original NOI really did identify material that is found to be infringing]
----------------
So to avoid liability for taking down the material, the Service Provider has to promptly notify the subscriber that the stuff has been removed; pass on the information that a counter-notification has been filed AND replace the material after "no less than 10 nor more than 14 business days" unless the original NOI person takes it to court.
Posted 34 months ago.
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There is no copyright issue; no one is using your image; you are deleted.
You are saying you did not get what you bargained for when you got a Pro Account; however, look at the terms of service you agreed to.
Case closed.
Posted 34 months ago.
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ColleenM Then I stand gladly corrected. All the more reason for Flickr to implement this long overdue feature.
Posted 34 months ago.
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jakerome
Two things stand out in this thread:
Yahoo! made it extremely difficult for the OP to file the counter-notice, at first claiming it was impossible to supply them with the necessary information.
Flickr appears to be in violation of the safe harbor provision if it cannot replace the 'removed or disabled material' within the 10 to 14 business days window.
A situation ripe for abuse.
Posted 34 months ago.
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ColleenM - that section just means that if the content isn't restored that the host has no automatic limitation of their liability, by way of the DMCA itself.
flickr already has plenty of additional language in their TOS that limits liability, and are under no *obligation* to restore the content.
i'd imagine godaddy has similar language.
Posted 34 months ago.
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striatic edited this topic 34 months ago.
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And, as with every time this matter has been raised lately, there'd be far less of an issue if DMCA-removed images and deleted accounts were simply placed in "limbo" for an interim period before being permanently removed...
Posted 34 months ago.
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striatic
Yes, it really does just remove the automatic liability limitation. If the offending post were eventually to be found an infringing use, Flickr *might* be found to have aided in the infringement if they didn't follow those three steps. At lot of 'ifs' before they are exposed to any risk.
And you're probably right that they'd fall back to the position that their own TOS protects them anyway.
Still, between the malicious behavior we've seen this past week, the occasional staff errors, and Stewart's original statement, it would seem prudent for Flickr to develop a holding bin for accounts that are deleted by staff.
I'm not suggesting that they create any more of a review process than they already have. But Yahoo!'s NOI process is about as robotic as you can get and difficult to intervene in, as detailed by the OP throughout this thread. And at the end of that? The photopage or account has still been destroyed.
Posted 34 months ago.
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But the crux of the DCMA problem as stated above is that the powers that be remove the entire page and not just the photo. The page itself has nothing to do with the supposed copyright infringement and DCMA take down notice. So in the case of a false accusation, the page cannot be restored and comments are lost. It seems that Flickr really should be thinking more clearly on this issue especially with all of the gaming that is going on with Explore lately.
Posted 34 months ago.
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"So in the case of a false accusation, the page cannot be restored and comments are lost."
Actually in the case of a true and proper accusation, the page also can't be restored, and all the content that had nothing to do with the copyright claim is also destroyed. It's a fail either way.
Regardless of how the law is applied, Flickr should focus on removal of the IMAGE alone, and not the content created around it.
A blank white image, with text reading "This Image Removed Due To Copyright Concerns." would take care of it.
Posted 34 months ago.
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As they do with videos on YouTube where the music is subject to a copyright claim from Warners or some such - they mute the music and put up a notice explaining that it's the subject of a DMCA notice...
Posted 34 months ago.
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3e
says:
I'd still love to have an explanation from someone at Flickr, rather than from the insane robots in the Yahoo Copyright office...
Posted 34 months ago.
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3e wrote I'd still love to have an explanation from someone at Flickr, rather than from the insane robots in the Yahoo Copyright office... That's a tough one, since Flickr doesn't handle the DMCA process - Yahoo does.
Posted 34 months ago.
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3e
says:
Some sort of policy statement like "We are totally OK with the fact that Yahoo is breaking the law" would be nice.
Just so we know that they know.
Posted 34 months ago.
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3e
See the post in the other thread. Yahoo isn't breaking the law.
Posted 34 months ago.
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3e
says:
Thanks, got it. But see also my reply.
Posted 34 months ago.
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So it looks like they made a change re the deletion and replacement of pictures?
Posted 33 months ago.
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For folks in the U.S., yes the procedure has changed. It's basically now what I and others suggested up there earlier, remove the image alone, replace with a "this image removed due to copyright concerns" image.
(Also what other sites commonly do, like YouTube. So it's not a terribly new or unique idea, just simple yet a lot more fair.)
www.flickr.com/help/forum/en-us/104389/680712/
Posted 33 months ago.
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Did you read his own statements in the topic he linked to? 
personne.de.chandigarh 
makes a good point. Censorship does not have to be *government* censorship for it to be considered censorship. The censors who bleep out the f word on Saturday night live are still censors. You don't have to work for the govt. in order to censor someone.
the point is that censorship does not have to be "government" censorship in order to be considered censorship. Nowhere in the definition does it say that it only applies to Govt. A college newspaper editor who cuts an editorial because he doesn't like what it says is still guilty of censorship regardless of the Govt's position on his content.
it seems all I really have to do is call you out as the Flickr sycophant that you are Ian to get the job done. We'll see eh old chap?
You can go with such a generic definition, but then it loses any real meaning. When people complain about censorship, it's in a much more specific sense. If someone posts child pornography should Flickr leave it in place so as not to be accused of censorship?
Flickr weren't acting on their interpretation of the image, they were acting on a legal notice filed under the DMCA. 
clickykbd 
3e By any chance, was your friend Barack Obama?
- I see what you did there :-)
"So the current situation is, if your photo makes Explore, and the gamers decide to remove it, all they have to do is file an NOI, and not only will your photo drop out of Explore, but Flickr will remove not just the image, but the comments, etc."
Ѕhims There's no requirement to restore content in the DMCA. Some service providers just pull the plug on the whole account to avoid any possibility of a lawsuit. GoDaddy is notorious for selling out their clients.
striatic
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