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.


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

[--------------------------------]
Link: http://www.flickr.com/photos/dgbalancesrocks/85439592/
Source: http://of-the-wasteland.blogspot.com/
[--------------------------------]

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.

Having 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. www.Degban.com" (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?

Flickr Sometimes Deletes Your Content Even Though They Don't Have To

So flickr finally replied to my questions.

The answer was: "After reviewing your recent correspondence, we have no further comments to make regarding this case, and consider it closed."

I think this sums it up. Click on the image to see it at full size:


I guess it's time to start searching for a new online photo-community...


(Previously#1 and Previously#2)

Oh Flickr, You've Been Degbanned

This is a follow up post. It'll make more sense if you've read the first in the saga, but for those joining the story here, let me give you a brief synopsis of the tale so far:

• January 12, 2006: I post a photo to Flickr. The photo leads a happy, productive life, making lots of friends around the internet.
• February 17, 2012: I receive an email from Flickr telling me that the photo has been deleted because a company called Wasteland, Inc. has filed a copyright claim on it.
• February 17, 2012: I file a counterclaim to Flickr's owners Yahoo.
• March 2, 2012: I receive an email from Flickr telling me that my counterclaim has not been challenged and that I am now allowed to repost my photo.
• March 3, 2012: I discover that Wasteland, Inc - who turned out to be a pornography company specialising in fetish and bondage work - had hired a "multimedia copyright protection company" called Degban to handle their copyright claims.
• March 4, 2012: I email the CEO of Degban, Taban Panahi, to ask him how on earth they came to believe my photo was copyrighted by Wasteland. His, somewhat odd reply, tells me that Degban has been subject to a hacking attack and that it's not their fault and that I shouldn't be angry at him and that actually I should feel sorry for him and anyway his dog ate his homework... Or something like that.

And much has happened since. It's been written about at slashdot, The Daily Dot, Torrent Freak, TechDirt, links were tweeted by giants of the twittersphere, Glinner and JackOfKent and, perhaps, most exciting of all, it was mentioned by the porn industry's trade mag, Adult Video News. Woo hoo. One for the scrapbook, there.

All this means that I've been bombarded with information and comments, here, on twitter, on flickr, via email and elsewhere. And to varying degrees, I've been in communication with the three companies involved. I've gathered more information and some fresh perspective on things. I'll divide it into three parts.

Part 1: Degban

Since my preposterous Taban Panahi-mail we have had two phone conversations. They have been as preposterous as the email.

Selected Highlights:

• "I'm pretty sure... I'm very sure... some idiot in my company just thought the password is too long, I'm going to change it to 1 2 3"),
• "when I'm in London I will buy you a beer, you can see that I am genuine, I'll apologise in person and, if you are angry enough you can even punch me, I wouldn't mind, ok?"

The main thing was that Taban was sticking to his story. They were hacked. It wasn't his fault. He wants to be friends. I'm being unreasonable. He was thinking of offering me a job. I should be careful. It's not his fault. They were hacked.

I have no idea if Degban were hacked or not. It doesn't sound like a credible explanation to me. It sounds like someone trying to distance themselves from something because they know it has legal repercussions. But that doesn't mean it isn't true.

The first public comment from Degban that I saw, was in the AVN piece:

"On February 29th, our SMTP server was accessed by an outsider through a password phishing scam," the company said. "The intruder then used our SMTP server to report legitimate content as piracy, using our own Take-Down notice templates. This was done to reduce our credibility with hosting companies..."

There's much more of it and you can read it in the article if you fancy, but it's the first three words that interest me. On February 29th.

Hmm.

My photo was deleted from flickr on February 17th. Those hackers are much more sophisticated than I imagined.

But other holes were starting to appear in their story too. Because other people were scrutinising what they do. Thanks to ChillingEffects there are plenty of examples of them filing bogus takedowns. The Torrent Freak article explains how, of the 82 takedowns they issued for the porn star Destiny Dixon, 25 were incorrect. (When you learn that the incorrect takedowns included albums featuring Destiny's Child and Alesha Dixon you start to see quite how unsophisticated it is)

So I did some digging to see if any of the takedowns issued by Degban on behalf of Wasteland were similarly, obviously, out of whack.

This is a notice they sent to Google on January 31:
Numbers 0, 2, 4, 6, 8, 11, 13, 16 and 20 relate not to porn produced and owned by Wasteland but to an episode of the TV show, Dexter called, Teenage Wasteland. In this example, and the one discovered by Torrent Freak, above, over 30% of their takedowns are aimed at the wrong target.

There are countless other examples. On January 29 they issued 38 takedowns for the game, Tony Hawk's American Wasteland as well as several for an audio recording by the American comic, Patton Oswalt (called Zombie Spaceship Wasteland), a film called Children of the Wasteland, Music from Pete Doherty (Grace Wasteland) , music from In This Moment (A Star Crossed Wasteland) and more episodes of Dexter. On January 30 they took down Children of the Wasteland and an album called This Present Wasteland by The Church. There are more obvious mistakes on February 1, February 4th and again on February 4th.

Now it might well be that each of these examples was infringing someone's copyright. But it shows that their system churns out false positives and the checks and balances required to oversee it are simply not in place. And if you're hitting false positives, not all of them are going to be infringing.

Like, say, for example... mine.

Degban works almost exclusively for the porn industry. It's an industry that feels very threatened by piracy and so anyone offering a solution is bound to be tempting. But there's no real excuse for a company that fires off DMCA takedowns without double checking that the content is infringing on their client's copyright. In those few links there are more than 100 bad takedowns. All sent in the name of Wasteland. You can't have that kind of hit rate and not hit innocent parties.

Part 2: Wasteland

The CEO of Wasteland left a comment on my previous blog post. I emailed him. We've exchanged quite a few emails since. So far, I don't think he's put a foot wrong. Apart from hiring Degban obviously. He seems appalled and embarrassed by what has happened in his company's name and is keen to hold Degban to account. He's certainly the nicest pornographer I've ever dealt with.


That was a short part. Part three is going to be long. Shall we have a cup of tea first?


Now...

Part 3: Flickr/Yahoo

I think this is the part that disappoints me most. It's saying something when the only one of the three companies to come out on the front foot and offer to communicate with me is Wasteland. But that's what's happened. Congratulations, Yahoo! Your conduct is worse than that of the pornographers in this tale.

I have to communicate with flickr and Yahoo! separately. Flickr have yet to reply to a single email about it. Yahoo do reply. Eventually. It takes them 5 days. And then it's the kind of reply that doesn't actually reply to anything. Imagine typing a reply to someone who's asked 4 questions, knowing that you've not attempted to address 3 of them, and still ending it with the words, "we trust this answers your concerns"? It doesn't. And they know it doesn't. That's Yahoo.



But putting the lack of communication to one side (there are reasons) it's flickr's ham fisted interpretation of the DMCA that I think is inexcusable. And here's where my perspective has shifted somewhat. Because since all this erupted I've read the Digital Millennium Copyright Act in some detail. And I've looked around at other sites and the way they handle takedown notices. And I can't find one site that does it quite like flickr. They're all subject to the same laws... so you'd think they'd have established the same policies too.

The terms of the DMCA dictate that when someone files a copyright claim the service provider - in this case, flickr - is obliged to: respond expeditiously to remove, or disable access to, the material that is claimed to be infringing.

And when a user - in this case, me - files a counter notice that goes unchallenged for 14 days, flickr is obliged to replace the removed material and cease disabling access to it.

But flickr have not replaced the material they removed. They removed the whole page. Not just the photo but everything that went with it. And they've replaced not one jot of it.

Flickr's policy on this is complicated. If both parties are based in the US they don't delete the content. They just disable access to it - hide it - until the issue has been sorted out. It's only when one or both parties are not US based that it pans out in this clumsy and unsatisfactory way.

Earlier this evening - as I was writing this post - flickr's senior community manager, Zack, sent me an email asking if he could call me. It's the first time flickr have tried to communicate. Finally. I thought we were getting somewhere.

We weren't. We had a lengthy phone conversation. It achieved nothing. I liked Zack. He's not a preposterous idiot, like Taban, but he seems hamstrung by his job, seemingly unable or unwilling to answer almost any question in case that somehow gets him into trouble further down the line.

We could agree that my photo was not infringing any copyright and that I had paid flickr to host it and that they had deleted it... but not that they should replace it.

When I asked Zack if he could tell me why the rules were different for non-US based customers he said that he couldn't tell me. I asked if he knew and couldn't tell me because he wasn't allowed to or if he couldn't tell me because he simply didn't know. He replied that he couldn't tell me that either. When I asked if he thought they could replace the photo he said he didn't know. I told him that I knew they had managed to replace a whole account that had been deleted recently, and he told me that replacing an account was not the same as replacing a page. I asked him why he thought they didn't have to comply with the terms of the DMCA and replace the photo and he told me he wasn't able to answer questions like that.

I don't believe Zack's employers are giving him the tools required to do his job.
"If it's possible to replace the photo, will you do so?"
"Ack... I ... um... that's tricky... I can't say yes to that."
"But the only reason you wouldn't say yes to that, is if you can imagine a situation in which you discover it is possible but still don't do it?"
"Yes."
"And can you imagine that happening? Can you imagine one of your engineers saying that he can replace the photo... and you deciding not to do it?"
"Well... no."
"So promise me that if it's possible to replace it, you will replace it."
"I don't think I can do that."

Sigh.

The thing that intrigued me most was that several times Zack repeated the assertion that he found it highly unlikely that any company would ever explain its policies on things like this. I disagree. That's not been my experience at all.

Flickr is a photo-sharing site. It does not want to delete its customers' photos.
If it didn't want to delete my photo then it must have felt compelled to do so.
In my experience companies always explain when they are compelled to do something that they don't want to do. Especially when they know their customers won't like it.
Why wouldn't you pass the buck and blame the big, bad authority that's making you do the unpopular stuff?

"I'm sorry guv, I'd love to give you another drink but we're only licensed til 1am so I have to stop serving," makes much more sense than, "I'm sorry guv, I'd love to give you another drink but I'm not going to and nor will I explain why."

Of course the alternative is that it's just a badly formulated policy. In which case... just change it.

I'm much more interested in seeing them change the policy going forward than I am in seeing this one picture replaced. And it's not as if I'm asking them to defy the DMCA. They're already doing that. I'm just asking them to obey it.




PS: And now another post: Bad Flickr.