Flickr yanks image of Obama as Joker
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yro.slashdot.org
http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_...
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.The logical extension of what you're saying is that "Fair Use" should not be invoked until there is a lawsuit. AFAICT, there will never be a lawsuit, as Flickr preemptively removed the "offending" content. Since Flickr is effectively acting as judge and jury in a closed doors case that the defendant wasn't invited to, when does he get to use his clearly applicable "Fair Use" defense?
Not at all, but your response betrays the fundamental misunderstanding here. It's not Flickr's job to adjudicate copyright disputes or have any "interpretation of copyright infringement."
No, the point here is that Flickr is not infringing some "fair use" right. That right doesn't exist. The right that does exist is Flickr's right not to host the picture. If someone complains to Flickr that a user's image is infringing their copyright, it's certainly not incumbent upon Flickr to pre-emptively argue "fair use" on the user's behalf.
If Flickr is truly concerned that the picture is infringing a copyright, why in the world would it be their job to absorb that legal risk on some user's behalf? If the user is so confident that it's a fair use, they can host the image on their own server and be prepared to make that defense in court, rather than expect Flickr to go to court and argue it for them.
This is not to say I agree or disagree with the photo being taken down; I'm going to remain agnostic on that point. But implying that Flickr has to defend someone's mythical "fair use" right is nowhere near accurate.
Indeed, but clearly they are adjudicating, so to say it is unfair to hold them to the standards of the position is ridiculous.
> No, the point here is that Flickr is not infringing some "fair use" right. That right doesn't exist.
No one has used the term "right", except yourself. The original poster's intention was to point out the baselessness of Flickr's actions. Due to the political and parody aspects of the picture, the general public would assume that this content would not result in a lawsuit. If there were documentation to the contrary, Flickr's actions would have some merit.
That's not true. It may seem counterintuitive, but they are doing the opposite. They are specifically not adjudicating it, but rather taking the "better safe than sorry" approach. I understand your position, but I think you're lacking some useful context.
There's a lot of established case law in the United States (going way back to when Prodigy and Compuserve were in their respective heydays) about what types of behavior make entities that provide fora for online content more like libraries (and thus more or less held harmless for content inside) and what behaviors make them more like newspapers (that exercise editorial control over their content and thus liable for the "speech" that they allow to be published, even if the "speech" is user-provided).
IANAL, so I'm not going to rehash all of this law here; instead I will direct you to the Safe Harbor provision of the Online Copyright Infringement Liability Limitation Act, which I think will rebut you far more directly than I can.
http://en.wikipedia.org/wiki/OCILLA#Knowledge_of_Infringing_...
Suffice it to say, the "better safe than sorry" approach taken here by Yahoo/Flickr is a very common, standard technique for limiting liability online.
"Common" does not imply correct. I will grant you that its common.
> Safe Harbor provision of the Online Copyright Infringement Liability Limitation Act
The Safe Harbor provision of §512(c) requires the provider to take down content given 1) notice from the content owner, or 2) the presence of "red flags". References to red flags in the DMCA suggest gross infraction, which in this case would look like a Flickr account dedicated to reproducing copyrighted content. This does not appear to be the case [http://www.flickr.com/photos/khateeb88/].
The "red flag" provision was also added to §512(d) for link indexing sites. There is more descriptive text attached to this "red flag" and it explicitly counters your broad "better safe than sorry aproach":
catalogers would not be required to make
discriminating judgments about potential copyright infringement.
"Common" does not imply correct. I will grant you that its common.
I'm not sure what you mean by "correct" in this domain. I don't think "correct" is defined here; there are only "legal" strategies and "liability-minimizing" strategies. The legality is a binary question and I think you'd agree that what Yahoo did was legal. Whether Yahoo's strategy is the most effective at limiting the liability is almost a closed question as well. You conceded earlier that it is a common strategy. The reason it is common for online service providers is that it is currently the most sure-fire strategy for limiting liability stemming from speech that users make.
... it explicitly counters your broad "better safe than sorry aproach" [sic]
No, actually it confirms what I said and explicitly debunks your claim that taking down the content is equivalent to adjudicating the copyright issues. The point of the provision is that you don't need to make a judgment; as long as you take the content down upon being made aware of potential copyright violations, you're fine. Hence, "better safe than sorry."
Without a takedown notice from a copyright holder, or an account dedicated to reproduction of unlicensed content, this is no legal reason for taking this content down.
What makes you think there was no such notice?
I am also not a lawyer and I am interpreting the law as written on my own, so my opinions probably differ from top law professors. I am a a little disappointed at the argument from authority, but I can't say that I wouldn't have done the same given the situation.
> I'm not sure what you mean by "correct" in this domain.
Thats a very good point, and I think that by correct I mean "most morally correct in the bounds of the law". Certainly, what Yahoo did was legal, but it was also unnecessary. As far as I can tell, the photo posed them no liability, nor were they legally required to remove it.
> No, actually it confirms what I said and explicitly debunks your claim
You are correct. I was wrong in saying that it countered your argument, and should have said that it provides a wider berth for Yahoo to retain their safe harbor status. Their actions were unnecessary in the eyes of the law (as written).
> What makes you think there was no such notice?
The LA Times article says that Flickr removed the image "due to copyright-infringement concerns". That doesn't prove that there was no notice, but citing "notice" sounds a lot better than citing "concerns" and I would expect them to do so.
> I'm not sure why you're still arguing
I'm not sure either. Partly, this thread started with the blanket statement that "'fair use' is not a right", which while correct, is a bit of a troll and got me emotionally involved. More generally, I feel that your implicit argument that Flickr did nothing wrong is pervasive but incorrect. The way in which they handled this case combined with their legal liabilities suggest that their actions were based on the popularity and political views of the photograph posted.
As you mentioned, if one cares about their rights, they should host their own content. I couldn't agree more, and this is a clear public display of the disadvantages in relying on corporate services.
In particular, the "amount and substantiality of the portion used" is "the whole damn thing". As far as I know, each photograph counts as an individual work.
The defense of "parody" is pretty strong, but as far as I know only applies if the subject of the parody is the copyrighted work itself. In this case the copyrighted work (a fairly neutral sort of photo) has been used to parody a third party (Mr Obama) who isn't the owner of the copyright. It's like Weird Al: his version of "Beat It" is a parody of "Beat It" so he didn't need permission, but his version of "American Pie" was actually a parody of "Star Wars", so he did.
If you want your day in court to prove your images are a fair use, host them on your own server. Why would you expect Flickr to pay to defend you?
For fun and japes, I made this: http://obamiconme.pastemagazine.com/entries/1362354-remix
I'm sure within a week someone will make a joker-fication website that automatically gives any image the joker look (indeed, if I knew how I'd have done it already).