Wednesday, March 14, 2012

Ah Flickr... I've Been Expecting You...

Previously: 1, 2, 3

The tale of Degban meets DMCA meets Flickr meets me took another turn yesterday. It was, I think, a good turn. I had a phone call from flickr. The right things were said.
Whoo Hoo

Well,"whoo hoo" may be a bit premature. But it's a step in the right direction.

Before I explain what happened I think it's probably worth me explaining why I think it's important.

Something that flickr users (inevitably) understand better than others is that flickr is not simply about photo storage. If it was simply about storage I'd have simply put it down to bad practice on flickr's part and moved my stuff elsewhere. (Actually, if it was just about storage none of us would have our photos online anyway, we'd just dump them all on hard drives).

No. What flickr is about - for me anyway - is photography and community.

That's why I - and millions of other people - pay for a (misleadingly named) 'pro' account. Photos can be organised in groups, sets and galleries. They can be commented on. They can be favourited. They can be linked, blogged and shared in other ways. All those connections mean something. Maybe not a lot individually. But something.

The comments, faves, notes, sets, groups, galleries and links that connect to any given photo give that photo its flickrness. It seems quite odd to me that flickr would ever seek to delete flickrness. Deleting the photo is one thing. That's just storage. But deleting the flickrness? Well, that's the extra added value. That's the reason we chose their site over any other. That, to flickr itself, should be sacrosanct.

As I explained previously, flickr currently has a policy that means any of its users could randomly find any of their content being deleted. A few people have queried me on this. Their argument seems to be, "But I'm just little old me... there's nothing contentious about any of my pictures, nobody's got it in for me... it's not like someone's going to file a copyright claim against me is it?"

Well the answer is that yes, they might. I didn't do anything to annoy Degban. They didn't file a complaint against my photo out of malice. Nor did they do it with any reasoned belief that it was actually breaching their client's copyright. I don't believe for one minute that they'd even looked at it.

I'm fairly confident because I've now seen the Notice of Copyright Infringement that was filed. If you remember, they were working for a company called Wasteland. This is what their Notice of Infringement says
The first line there is the url that once housed my photo. The second line... well, that leads to a blog. In particular, to this post, which looks like this:

click pic to enlarge

and, in particular, to the fourth paragraph, which looks like this:

And that, ladies and gentlemen, is it. The word graffiti was a link to my photo. That's all it is. My photo doesn't appear on that page. It's just linked to from that page. And nothing on that page infringes on their client's copyright.

The only connection is this: in March 2006, someone put a link to my photo on their blog... and their blog was called Of The Wasteland and six years later, Degban started working for a company called Wasteland.

Ta dah! That's all it took. It truly could have happened to anyone.
(Indeed, the Notice of Infringement from Degban cited 28 pictures in total, so we know it happened to at least 27 other people that day... and from the pattern of Degban's misbehaviour so far uncovered it's safe to assume that it had happened to others the day before and more again the day after.)

Given that there are companies that stupid and lazy filing copyright notices for reasons that spurious it's surely important that services like flickr have a robust policy for dealing with them in a way that fulfils their legal obligations while doing as little damage as possible. Otherwise, any one of us could find our content degbanned and deleted at any moment.

It is fair to say that flickr and Yahoo! were not quick to respond on this. The response from the anonymous copyright agent(s) of Yahoo's US legal team was to not answer questions and tell me the matter was closed. When I explained that to the less anonymous Yahoo UK legal team - and to the Yahoo UK Company Secretary, Abigail Harris Deans, the response was "we're referring it to the US legal team". Brilliant.

Don't get me wrong, I don't think this stasis is unique to Yahoo. I think it's a problem with a lot of organisations. Certainly, large organisations. They've formulated company policy. The people that we, as customers, are able to get in touch with directly are paid to implement those policies. The people who can change those policies are, quite naturally, protected from that kind of contact. If they weren't, the chief executive of Yahoo would spend his days fielding emails about spelling mistakes made in Yahoo-News stories or the like. (Do they have a Yahoo News? What do they do these days? Maybe he'd spend his days explaining that yes, Yahoo does still do, um, stuff.)

Even so, I'm surprised that nobody I spoke to along the way didn't stop and think, "Hang on... these Degban muppets are a right bunch of tools... and we're just deleting our customer's stuff because of their toolishness... that ain't right... I need to tell the policy makers." It's the big companies that empower their staff to do that, that will thrive.

This One Goes Up To 11Having exhausted all the straight forward means of communicating with them I decided instead to try making-a-lot-of-noise.

That's why I created the flow-chart that appeared in my previous post on the subject - because I thought it had a good chance of being seen by a lot of people.

My thanks go out to everyone that linked to it, tweeted it, viewed it and commented. Thanks to Tech Dirt for pushing the story again too, (good summary that). All the cage rattling helped, I'm sure.

But the shoulder that finally nudged the door ajar belongs, I think, to Jack Schofield, the Guardian's Computer Editor. (I think he's been the computer editor there since before computers. He was certainly doing it before I had a computer.)

Jack asked one of Yahoo's London based PR people to comment and they promised to look into it. (Hmmm. Not the Company Secretary. Not the Legal Team. PR. Worth remembering that.) I left it overnight, then called them the next day. Later that day they called me back and asked if I could take a phone call from Zack (Senior Community Manager, Flickr) and Carmen (Head of Intellectual Property Rights, Yahoo)(I think). I said yes.

The last time I'd spoken to Zack I don't think either of us thought it a satisfactory conversation. I don't think he thought the policy as it stood was right. But he wasn't able to actually address any of the issues. He did promise me that someone from the legal team would contact me... and 48 hours later they did... but only to say that they weren't going to answer any questions. I don't think that was the outcome Zack intended.

Because things had now escalated, this was a far easier conversation. Neither of them were taking it lightly.

I get the impression that nobody knows why the policy is the way it is but that everyone just assumes it was made that way for a reason and so there must be one. I guess this is another problem with big companies.

I know that it's technically possible for them to restore what was removed but I accept that to do so for every non-infringing image they've deleted in similar circumstances - there must be thousands - would be hugely costly. The reason I've been making noise about this is not to seek special treatment for me in this instance, but to try and persuade flickr that their current policy needs to be changed. As I've said before, I am far more invested in not-having-this-happen-again (to me or anyone) than I am in fixing one thing that happened on February 17th.

I believe that Flickr and Yahoo accept that the existing policy does not work for their customers and there exists, I believe, the will to try and change it. It's not going to happen tomorrow. But I think it will. Eventually.

As nobody knows what statutes they were scared of when they made the policy the way it is, I guess they'll have to tread carefully. It might be that somewhere there is a law saying they can't even hold on to a copy of a disputed image. That nobody can think of one suggests otherwise, but it might be out there and they can't just assume it isn't.

If that's the case, well, I still think deleting the whole page is a bad thing. If they have to delete a contested photo completely then so be it. But they definitely don't have to delete its flickrness too.

If for some unfathomable reason that is the constraint they have to work within, then I think a better solution would still be to replace the picture - just the picture and not the rest of the page - with a holding image. Something saying, "The picture that normally lives here is currently subject to a copyright dispute."

If they did that and held no copy of the image themselves, then cases like this one would end in one of two ways, depending on whether the user has a back-up copy of the picture or not.
1: If they do: They get to replace the holding image with the back-up and everything is as it should be.
2: If they don't: The holding image is replaced with something saying, "The picture that used to live here was unfortunately deleted. This was because of a bogus copyright claim from Degban Ltd." (Or whoever)

In my case I'd have been able to go with Option 1. But Option 2 would still have been a better fall back position than where we are now. It would mean existing links to the picture would now be pointing to the story of what-happened-to-the-picture rather than to dead space. It would be more open and honest. And it would provide a healthy - albeit tiny - disincentive to companies like Degban to stop playing with the copyright laws as if your online content didn't really matter.

If that's how the law is then it's better to leave evidence around the internet showing that bad companies use bad law to make (legally)good content disappear than it is to just leave dead links lying around.

Of course it would be even better if they didn't have to rely on the user having a back-up copy and could just replace things. I think that's likely to be where we end up. We're not there yet. But I do believe it's where Yahoo and Flickr want to be.

Incidentally... many sites operate a three-strikes-and-you're-out policy with their users. If they get caught infringing copyright three times they get their whole account deleted. Maybe there should be some provision within the DMCA to ensure that companies who abuse it more than three times lose the ability to invoke it again. Given that Degban have demonstrably filed hundreds of bogus copyright claims, it wouldn't be a bad thing if service providers were told they were no longer obliged to process them. They can't honestly claim to be filing these notices based on a reasonable, good faith belief now can they? If that was the penalty, I bet they'd pay a bit more attention to the claims they file. (And so would Warner Brothers) How do we make that happen?


Harry said...

Interesting read, this is related to what's happening to my local pub.. you might have heard about it on the news.. it's being sued for copyright infringement by a movie producer as it's called 'The Hobbit'. copyright law is neccessary IMO, but is so open to abuse like this against the 'little guy'

Steven said...

The age old saying of a customer scorned:

"If at first you don't succeed go above their head"

Darren Coleman said...

It looks like Yahoo! are trying to earn money by suing Facebook for patent infringement. It's one way to earn a living...

Paula Bailey said...

I believe that with Flickr, it's only two strikes and you're deleted. That's what I think I recall from the copy of the 'notice' that lovestruck. received. (For others - lovestruck. is a Flickr user who had the same problem from the same company)

Out of interest, do you get your 'strike one' removed? Bit of a precarious position to be in - and both of you with long-standing photostreams full of lots of Flickrness.

Dominic Sayers said...

Can I say thank you to Dave for putting his time, effort and considerable weight behind this project.

If Flickr do change their policy it is a considerable victory, and a battle won in what will be a long war.

Thanks, Dave.

Dave Gorman said...

@Harry: it's related insomuch as they're both abuses of the copyright law. But I'd say unrelated in that the company trying to close The Hobbit do at least have a genuine belief that they own the copyright. It's a ridiculous belief and one that's well worth fighting, but different in that regard at least. A true analogy would be their lawyers trying to close down The Red Lion because they once put a poster up for the pub quiz being held at the pub across the road from The Hobbit.

Dave Gorman said...

@Sean O'Reilly yup... the tricky part is trying to find the way up the food chain when they close ranks!

Dave Gorman said...

@Paula Bailey: I received the same boilerplate email about it as lovestruck. It's not two strikes. The phrase used is ambiguous: "Subsequent NOIs filed against your account will result in
further action that may include termination without warning."

So that's NOIs, plural... and may include termination.

I think because the start of that process is so unfriendly and assumes you're guilty - there's no advice on how to counter it (although that's one of the things they're promising to change) people assume they're being told a straight "do it again and you're out" message. It's not really as clear cut as that.

Nile said...

Your actual position? You simply do not matter.

The press will go away and be insignificantly indignant about something else when Flickr and Yahoo buy a few lunches: you don't even matter enough that they'll buy some advertising to pay for favourable coverage to smooth it over.

If you did, the media would be full of GoDaddy-sized posters of female skin, wow!Celebrity! images and prime-time product placements that make the brand - any brand - waaaay cooler than listening to geeks whining on a blog.

And it would work: if a quarter of all Flickr cusomers were deleted, banned, driven out of the online media storage universe and digital photography *completely*, and then sued into destitution, customer numbers and revenue would still continue to rise.

It worked for GoDaddy. Sort of. Or so I hear, and I suspect that whoever says such things has avid listeners among the main decision-makers in Flickr and Yahoo. Who are, incidentally, well aware that a litigation business model supersedes outdated notions of customer focus.

Whatever these 'customer' things are.

Marketing people tell me that there's some sort of 'customer' number that we sell to advertising buyers - you know: people who matter and give us LARGE amounts of money.

Debra said...

I hope that change is on the way.

Flickr has something really special that other photo sites don't have. I'm not sure that Yahoo really gets that it's the community, the flickrness of it all.

Flickr users are great at the community bit and don't need much help on that, but we do need Yahoo to understand about the flickrness and find ways of keeping that going when things go wrong like in this case.

Calum said...

I have to say, the pub rather overstepped the mark when it started using images of actors from the movie, tthough. Had they just stuck to a more generic fantasy theme, I'd have had a bit more sympathy for them.

Unknown said...

Hello Dave,

I'd suggest you use Deviant Art ( as your future photo/community site. At least give it a thought - when a claim is made, an actual person decides if copyright has been infringed.

Worth a look.

Dave Gorman said...

@Billy Scott: DeviantArt is bound by the DMCA just like any other website. They have to respond to a notice of infringement too. It's how they respond - deleting or disabling access to - that counts.

But when they receive an NOI they don't make a judgement call. It's impossible to do so. There are many cases where there simply isn't proof either way.

They don't say on their site how they respond. But it's clear from this page: that they are aware of the DMCA

Kevin said...

Really appreciate the effort you've gone to is perusing this.

Sadly, it takes someone with your online presence and reputation (for example, the worry that you might put out an entire comedy tour out about this very issue) to get things moving.

When a nobody, such as me happens to be the victim of such an attach, it's much much harder to get things like this sorted.

Well done.


Anonymous said...

If I could correct my mis-spelling, I would!

perusing should have been pursuing. Sorry.


Technical Ben said...

Hi. Thanks for making this issue known to others. I've also had erroneous or poorly communicated take down notices on my postings on youtube. I also saw no way for me as a user to engage in communication with any of the parties involved.

Also, as a note, is this site using your images too?

At least I can see a shutter image in this example in the letter "u"

Just to make you aware. Hope all goes well with your books and blogging! I'm riveted by your TV stuff!

Technical Ben said...

Nope, it's not. False alarm. I did think of your blog when I saw the letters painted on shutter doors though!