Is Using A Photo Without Credit A Separate Violation Of The DMCA?
from the wtf? dept
One of the worst parts of the DMCA is the anti-circumvention clause, which makes it a separate violation just to circumvent various "protection" measures -- usually DRM. There is a separate clause related to this, which focuses on altering "copyright management information" which most people have always believed to mean the digital information about the copyright holder associated with the DRM. However, a court case involving some naked DJs is putting that to the test. THREsq explains the details of the case:In 2006, New Jersey Monthly magazine hired photographer Peter Murphy to shoot WKXW hosts Craig Carton and Ray Rossi for a "Best of New Jersey" issue naming the pair as "best shock jocks" in the state. The two radio hosts were photographed standing, apparently nude, behind a WKXW sign.There are a variety of legal issues raised in the case (including a defamation claim for how the DJs reacted after Murphy complained), but the interesting one is that Murphy claimed that simply removing the credit line on the photo is an entirely separate DMCA violation, whether or not the use of the photo infringes itself, because it messed with the "copyright management information." The radio station and the DJs reasonably argue that this is preposterous, and the lower court agreed, granting summary judgment. However, the appeals court feels differently, and thinks it's an issue worth exploring, and sends it back to the district court to explore.
Later, after the magazine had come out, the WKXW website took a scanned copy of the photograph and put it on its website, inviting its fans to take the image, manipulate it, and submit the results. The station stripped away NJM's caption and Murphy's photo credit and never got permission to use the copyrighted photograph.
The court goes through what feels like a tortured reading of the DMCA to come to this conclusion, and determines that while this result may not be "desirable, it is not absurd." Really? It seems pretty absurd that you can violate a separate part of copyright law just by removing a credit. If this actually is ruled reasonable in court, it could mean that even in cases of fair use, if you remove the credit, you could still end up violating the DMCA. That doesn't make much sense.
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Filed Under: circumvention, credit, dmca
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It does make sense
Oh, but it does make sense. But not in a way that is good. In the larger picture of what seems to be going on, it makes perfect sense.
Intellectual Property is just getting warmed up. Things are going to get so you can't trim your toenails without infringing someone's intellectual property, in several different distinct ways, including circumventing a protection measure.
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Re: It does make sense
The fact that an unauthorized user(henceforth known as "Pedicure Pirate") is able to obtain this device and use it for the purpose of circumventing the iPed nail trimming authorization functionality is a clear violation of the DMCA, and all unauthorized manufacturers of devices that perform such acts must Cease and Desist all manufacture, sales, and promotion thereof.
Apple loses millions of dollars a year to unauthorized nail trimming in the private sector by Pedicure Pirates, and will take aggressive measures in order to curb such action in order to protect their Intellectual Property.
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Two things
2. So if we set aside the absurdity of this applying in fair use cases, I am leaning in the direction of agreeing with the court here. Why? Let me ask a series of questions to answer that: Since digital photos have no form of DRM, would removing the copyright notice from the EXIF data count as a reasonable violation of this clause? If so, then what do you do for analog (printed) photos that won't have any EXIF data? The copyright notice serves that same purpose in my opinion, and removing it could indeed be seen as a violation of this clause.
To be clear, I'm not saying I think this is right, just that this is a logically consistent reading of the law as it stands today. Only Congress can change it at this point.
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Re: Two things
If we're going to enforce nonsense laws, at a minimum they should be enforced in a consistent manner.
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This takes away one more type of fair use.
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I just read through the court's analysis of the DMCA claim, and I'm curious why you think it's a "tortured reading." When you make claims like this without explanation, one can't help but think you are simply working backwards.
It seems pretty absurd that you can violate a separate part of copyright law just by removing a credit. If this actually is ruled reasonable in court, it could mean that even in cases of fair use, if you remove the credit, you could still end up violating the DMCA. That doesn't make much sense.
The court addresses this in footnote 8:"The Station Defendants point out that most fair uses will involve the removal of CMI. However, unlike § 1201, § 1202 applies only when a defendant knows or has reasonable grounds to know that the removal will “induce, enable, facilitate, or conceal” an infringement. Thus, those intending to make fair use of a copyrighted work are unlikely to be liable under § 1202."
Do you disagree with the court's response here? If so, why.
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Moreover, how is the circuit court's reading of the plain text of the statute "tortured"?
Surely Mike can explain himself. I am asking him after all.
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I don't think so. This isn't fair use, its copyright violation.
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a variety of legal issues
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Re: a variety of legal issues
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DMCA vs Fair Use
It bothers me even more how copyright works with photographers. You pay the photographer to take photos for you, yet the rights to those photos go to him. Why does the photographer and not the person paying for the photo? I'm sure any photographer that takes photos for a corporation has to sign over his rights to the photos in order to get paid, but normal folks who just want to be able to use their photos for their own purposes (Such as reprints of family photos from 60-70 years ago for preservation purposes) can't because the photographer owns them for some stupid reason. Why does the photographer need those right assigned to him? Why does he deserve them? Didn't he get paid to take and print those photos? Isn't that enough? Oh, I forget! Copyright is supposed to give all creators of art perpetual income regardless of the fact that labor was performed and paid for long ago.
I despise this arrangement and I think that if anybody should have the rights to their professional created family photos, it should be the ones who paid to have them made! The radio station shouldn't be getting grief for this from the photographer if the he was paid to take that photo. If anybody should be suing WXKW, it should be the magazine. They paid for the photo shoot! Those photos should belong to them. Apparently, the magazine didn't want to pay out to buy the rights to the photos, probably because the cost was too high. So copyright gives you the power to demand more money if they want to be able to do more with the photos. How sad.
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dmca
I use a fast Fourier transform to add a watermark on art
so if you resave it in a "lousy" format like *.jpg
you VIOLATED the law and subject to an additional DMCA charge
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'not desireable, but not absurd'
It is "not absurd" because, since the law does not specify precisely what constitutes "circumvention", anything which would tend to obfuscate the ownership of the copyright must be considered "circumvention" under the law.
Good laws are written so as to precisely define what they are to cover. Poor laws are not.
(And that may derive from simple neglect/stupidity on the drafters' part or actual malicious intent to sneak a law that benefits special interests through.
(The determination as to which applies in this case is left as an exercise for the reader.)
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