EU Parliament Rejects Bad Proposals On Copyright Over Outdoor Photography And Links

from the good-move dept

In the past few weeks, we've discussed two particularly ridiculous proposals put forth by members of the European Parliament in the report that it is sending to the EU Commission for copyright reform across Europe. First was the proposal to remove freedom of panorama, which would allow countries to block the photography of certain buildings and structures, claiming that those photographs violated the rights of the architects. The second was a plan to support a link tax that would tax content aggregators like Google News for linking to content elsewhere.

Thankfully, both of these proposals were voted down, despite earlier indications that they might have enough support in Parliament. Either way, the real issue now is what proposal the EU Commission comes out with for copyright reform across the EU. Julia Reda who prepared the original report for the EU Parliament hopes that the EU Commission recognizes the importance of the public's rights in its eventual plan (though she continues to refer to them as "limitations" rather than the public's rights, as is more appropriate):

This decision embodies a central message of the report: Commissioner Oettinger cannot limit his upcoming reform proposals to improving conditions for cross-border trade. Reforming exceptions to copyright protection must be at the center of his initiative, since they fulfil such an essential, multi-facetted role: They provide creatives with the space to create new works, users with legal certainty for everyday activities, and access to culture and knowledge to everyone.

It calls for a reduction of geoblocking measures, particularly to allow cultural minorities to access content in their language online. The report asks for consideration of new exceptions for libraries and scientists when dealing with digital works, for example allowing e-lending. Creators should be strengthend in their negotiations with publishers, it states.

We'll see what actually comes out of the Commission, but Oettinger's comments in the past have not been encouraging. And, of course, other aspects of what was added to the report are just as troubling. Such as this:

Jean-Marie Cavada, a French member of the centrist ALDE group, amended the report to claim that “virtually all the value generated by creative works is transferred to… digital intermediaries, which refuse to pay authors or negotiate extremely low levels of remuneration.”

Needless to say, there's going to be a lot of fighting over the eventual proposal.

Filed Under: copyright, eu, eu parliament, freedom of panorama, google tax, julia reda, link tax, links, photography, snippet tax

What's Behind The Attack On EU's Outdoor Photography? The Usual Copyright Maximalism And Anti-Americanism

from the civilization-in-peril dept

Last week, Tim Cushing explained that one of the bad outcomes of the recent European Parliament committee vote on Julia Reda's copyright reform report was that it recommended limiting freedom of panorama -- the ability to take pictures and make videos of public objects -- to non-commercial use. As Techdirt readers know, in the digital age, it is very hard to draw a clear distinction between commercial and non-commercial contexts online, which makes any kind of limitation to non-commercial use problematic. The person responsible for introducing the amendment to Reda's report, Jean-Marie Cavada, has written a blog post about the freedom of panorama issue (original in French), and it gives us some interesting insights into his thinking here:

The fight which is being led today by Ms. Reda, in the guise of defending free access to the works that are in the public domain [public objects] on behalf of users, is actually one conducted above all to allow US monopolies such as Facebook, or Wikimedia, to avoid the payment of fees to the creators.

Yes, it's all about those evil American companies again, refusing to pay when somebody dares to post a holiday picture on their Facebook page. Because, as the copyright maximalists keep on reminding us, every single use of every single owned object must be licensed every single time, otherwise civilization -- specifically European civilization -- will come crashing down.

But whatever people might think about Facebook, it's hard to see Wikipedia/Wikimedia as a "US monopoly" avoiding payment, as Cavada calls it. Indeed, Cavada goes on to contradict himself, writing:

this structure is well aware that the use of works on Wikimedia pages is not questioned by the authors, even in countries where there is no [freedom of] panorama exception.

Well, if it's not questioned, why is he using Wikipedia as an example of an evil "US monopoly" that wants to avoid paying licensing fees? Or does he mean that authors don't have a problem with Wikipedia using photos of landscapes with their works visible provided they are paid? Which of course ignores the fact that Wikipedia is not a company, and can't afford to pay licensing fees. Or, there again, is he perhaps advocating that Wikipedia just ignore the law, and use the pictures anyway?

Altogether, this confused post is a perfect demonstration of why people who don't understand a technology should not be allowed to make laws about it.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: anti-americanism, copyright, eu, france, freedom of panorama, jean-marie cavada, julia reda, outdoors, photography
Companies: facebook, wikipedia

Dallas PD Guts Specifics From Citizen Recording Policy, Leaving Only Vague Reminder To Respect Pre-Existing Rights

from the doing-the-public-a-solid-by-not-interfering-too-much-with-its-rights dept

It shouldn't need to come to this, but the Dallas Police Department has finally issued a policy related to citizen photography. There are many reasons law enforcement agencies need to remind officers of the right to record, but the Dallas PD may have needed a bit more of a nudge after a Texas legislator tried (unsuccessfully) to impose additional restrictions on citizen recordings -- like a 25-foot "halo" around working officers, supposedly for their safety.

The issued general order seems straightforward enough.

[N]o member of the Dallas Police Department may prevent or prohibit any person's ability to observe, photograph, and/or make a video recording (with or without a simultaneous audio recording) of police activity that occurs in the public domain, so long as the person's location, actions. and/or behavior do not interrupt, disrupt, impede, or otherwise interfere with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law. The public's access to information regarding the official business of the Dallas Police Department is of critical importance to effective, transparent government.

Driving the point home further is the summary paragraph at the bottom of the order:

It is increasingly common for uninvolved bystanders at the scene of police activity to photograph and/or video/audio record the actions and conduct of police officers. Officers of the Dallas Police Department should simply assume at any time a member of the general public is likely to observe, and perhaps even photograph or video/audio record their activities.

This is a good assumption to make. And better yet, there's no ridiculously arbitrary "halo" -- one backed up by possible felony charges -- attempting to further separate the police from public accountability.

So, what's the problem with this order? It's all the stuff it left out. As has been observed on multiple occasions, there are ways officers can still abide by the letter of an order while stomping all over its spirit. In addition to direct intimidation, officers have been known to block off recordings with their bodies or render recordings useless through other means. The Dallas PD originally considered these issues in a four-page draft. Almost none of this survived the cull into a single-page order.

Here are some of the specifics that failed to make their way into the final order.

331.05 Officer Responsibilities

Upon discovery that a bystander is observing, photographing, or video/audio recording the conduct of police activity:

DO NOT impede or prevent the bystander's ability to continue doing so based solely on the discovery of his/her presence. (including, but not limited to, deliberately shining a flashlight into the camera lens to prevent recording)

DO NOT seize or otherwise demand to take possession of any camera or video/audio recording device the bystander may possess based solely on the discovery of his/her presence.

DO NOT demand to review, manipulate, or erase any images or video/audio recordings captured by the bystander based solely on the discovery of his/her presence.

Additional stipulations that were ultimately discarded include the reminder that no recording citizen is required to produce "press credentials" or otherwise justify their presence at a scene. It also instructs officers that their attention should be focused on the situation that demanded a police response, not the onlookers and their recording devices. And it tells officers that any seized recording equipment must be given up voluntarily by the person recording or obtained with a warrant. Exigent circumstances may result in temporary seizures, but only for the length of time needed to obtain a copy of the recordings.

All of this has been swept away and replaced with a truncated order that basically says the same thing, but doesn't specifically forbid the sort of behavior often observed when officers discover a camera rolling at the scene. And if it's not specifically forbidden, it's generally taken to mean that this behavior is still acceptable until proven otherwise.

In the context of this order -- which is really a reminder that officers should allow citizens to make use of their previously-existing rights -- the lack of details leaves the door open for abuse.

Filed Under: citizen recording, dallas, dallas police, photography, police

DailyDirt: Digital Photography Magic (aka Photoshopping)

from the urls-we-dig-up dept

Altering a few pixels here and there in a digital photo can have remarkable effects. Sometimes the result is unexpected and hilarious, but sometimes it's simply amazing what can be done to photos. Perhaps you've used software (eg. photoshop) to remove "red eye" from your favorite selfies, but there are some even more advanced algorithms that can make your photos look much better... than they otherwise would.

• If you've ever tried to take a picture through a window (from a train/bus/skyscraper/etc), you've probably encountered the problem of seeing your own reflection obscuring your shot. However, don't delete those photos just yet -- if the window was double-paned, you might be able to save them with an algorithm that removes reflected images under certain conditions. [url]
• It's possible to de-blur some cellphone-take photos by using the front-facing camera to track motion information while the rear-facing camera snaps a shot. Algorithms can make it possible for cameras to get even smaller, as imperfections in small lenses can be compensated for with software. [url]
• There will be an ever-growing number of selfie filter options in the near future. The more advanced ones will combine facial recognition with other effects to generate more stylish photos. [url]
• Maybe you want your outdoor photography to look like it's winter. Or autumn. Or raining. There might be a editing tool for that soon -- from some researchers at Brown University. [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: algorithms, cameras, cgi, de-blur, filters, photography, photos, photoshop, photoshopping, reflections, selfie

District Court Says You Can (Probably) Photograph Police, But Only With A Regular Camera, Not A Drone

from the also:-plenty-of-deferential-exceptions dept

You have a First Amendment right to film police officers and other public figures during their performance of public duties… except when you don't. Police officers are given the most deference in these matters, despite a handful of circuit courts upholding this right and the DOJ itself stepping in to inform police departments around the nation that, yes, citizens have a right to record police officers in public.

But the "right" is loaded with exceptions, and it's not backed up by circuit court decisions in several states. To date, most courts have given law enforcement officers plenty of leeway to shut down recordings as they see fit and stay one step ahead of accountability.

In February of last year, Pedro Rivera overheard a police scanner call for respondents to a serious traffic accident in Hartford, Connecticut. Rivera, a cameraman for a local news station, headed to the crash site and attempted to gather footage using his personal drone. This drew the attention of responding officers, who forced Rivera to remove himself and his drone from the scene. (They also suggested his employer could stay in their "good graces" by punishing Rivera for hovering by proxy 150 feet above the scene of the accident.)

Rivera sued, claiming the police violated several of his rights, including his First Amendment right to film police officers performing their public duties. Connecticut's federal court has sided with the police officers, in effect declaring that those within the Second Circuit's coverage area don't have a right to film police -- at least not with a drone.

As for his First Amendment claims, the court found that there was no recognized right to record police activity. While other circuits have split on the issue -- there is such a right in the First, Seventh, Ninth and Eleventh circuits -- the Second has never addressed the question, meaning that there could be no clearly established right as needed for the officers to waive their qualified immunity.

The district court also went out of its way to note that, had Rivera even been in a jurisdiction which protected the right to film police activity, he may have fallen outside the scope of those protections. He wasn't standing by with a camcorder, after all, but sending "a flying object into a police-restricted area ... effectively trespassing onto an active crime scene." Similarly, because there was no constitutional violation, the court dismissed Rivera's retaliation complaint, as you cannot retaliate against the exercise of a right that doesn't exist.

Specifically, the court seems to have an issue with the type of camera used, rather than the act itself.

Moreover, the Court notes that in cases where the right to record police activity has been recognized by our sister circuits, it appears that the protected conduct has typically involved using a handheld device to photograph or videotape at a certain distance from, and without interfering with, the police activity at issue. [...]

By contrast, here Plaintiff directed a flying object into a police-restricted area, where it proceeded to hover over the site of a major motor vehicle accident and the responding officers within it, effectively trespassing onto an active crime scene. See, e.g., U.S. v. Causby, 328 U.S. 256, 266 (1946) (holding that invasions to airspace situated within ―the immediate reaches of land—including airspace so close to the land that invasions of it affect the use and enjoyment of the surface of the land—are in the same category as invasions to the land itself). Even if recording police activity were a clearly established right in the Second Circuit, Plaintiff‘s conduct is beyond the scope of that right as it has been articulated by other circuits.

The case cited quotes Congress as defining "public domain" airspace as somewhere between 500-1000 feet above the ground, depending on location, time of day, weather, etc. In the 1946 case, military planes were buzzing Causby's farm at less than 100 feet above the ground. The Supreme Court found in Causby's favor.

This raises the question: would Rivera's photography have been protected if it had occurred above 500 feet? The district court has basically declared that an altitude of 150 feet is an "invasion" of the ground below it. Would going higher restore rights? Or would deference to law enforcement make an accident scene off-limits to aerial photography?

This is where older rulings clash with new technology. The court plainly states that it would have viewed Rivera's photography more charitably had he been using a handheld camera, placing him closer to the accident scene than his drone ever was. Somehow, the fact that it was overhead seems to be what's holding the district court back from upholding Rivera's First Amendment rights. A height of 150 feet likely interfered with nothing more than the officers' sense of control. Because the police couldn't "rope off" the sky, they had to do the next best thing: order the flying camera and its operator away from the scene.

The court says the camera "trespassed" into an active crime scene. But cameras do that all the time. The yellow tape may keep observers further away horizontally from crime scenes, but it does not prevent them from observing or filming any visible part of it. This decision gives police control over the skies, even when the circumstances don't demand it. They certainly have every right to ground a citizen's drone if it's interfering with police or medical aircraft, but otherwise it's just another camera -- in this case a camera 150 feet away from the nearest police officer. There's no interference happening here, and yet, the "right" to film police has been limited to only certain earthbound photography equipment -- and even then, still subject to any number of restrictions imposed arbitrarily by police officers.

Filed Under: drone, filming police, first amendment, journalism, pedro rivera, photography, police

DailyDirt: Digital Beauty Is Everywhere

from the urls-we-dig-up dept

Before Photoshop, there were real airbrushes and paintings that were just a bit more flattering than a mirror. Movie magic is improving all the time with computer generated effects, and it's getting harder and harder to tell what's been altered (just assume everything is). You might not want to meet your favorite actors in real life after seeing how they've been modified. Here are a few links on digital touch-ups.

• Hollywood actors/actresses don't just rely on makeup and botox. They also have "beauty work" done that isn't quite turning actors into Andy Serkis (yet). Digital touch-ups can remove a lot of "flaws" and make people look just a bit younger looking than they are in reality. [url]
• Photoshop is used routinely to make the covers of magazines look a bit better (or worse, depending on your preferences), but what images does your brain really prefer? If you think you hate the sound of your own voice when it's recorded, you might prefer a touched-up version of your portraits, too. [url]
• Esther Honig tried an experiment to see the different standards of beauty -- as depicted by 40 photoshop artists from dozens of different countries modifying a photo of Honig. A few verions of her photo appeared to be barely altered, but a bunch of these photos strayed pretty far from the original. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: beauty work, cgi, esther honig, photography, photoshop, photoshopping

Texas Tosses Out Law Against Peeping Tom Photographs As A First Amendment Violation

from the the-first-amendment-is-tricky dept

We've been somewhat concerned about various attempts to pass laws against revenge porn. While revenge porn itself is immensely troubling, the problem is that any law that seeks to carve out revenge porn almost certainly leads to dangerous unintended consequences. I recognize that many pushing for such laws have very good intentions, but I worry if, in the haste to "pass a law," the consequences of such laws are being ignored. And then there's the question of whether or not these laws are even constitutional. There's a good chance that many of them are not.

And that's what makes this story interesting. The state criminal appeals court in Texas has just declared that state's "improper photography or visual recording" law an unconstituional violation of the First Amendment. This could have ramifications in a number of ways. First, some have argued that such laws (or, indeed that very law) might represent an alternative to specific anti-revenge porn laws. But, even more to the point, some who have advocated in favor of anti-revenge porn laws have argued they can be accomplished by merely extending existing "peeping tom" laws, like the Texas one. In fact, that's how California did its anti-revenge porn law.

But the Texas court says it's a First Amendment violation. First, it notes that photography is, by definition, "inherently expressive," and thus there's certainly an expressive act which implicates the First Amendment.

The camera is essentially the photographer’s pen or paintbrush. Using a camera to create a photograph or video is like applying pen to paper to create a writing or applying brush to canvas to create a painting. In all of these situations, the process of creating the end product cannot reasonably be separated from the end product for First Amendment purposes. This is a situation where the “regulation of a medium inevitably affects communication itself.” We conclude that a person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.

And then you run into some First Amendment problems, even if the photographs are sexual in nature:

As the Supreme Court has explained, “Sexual expression which is indecent but not obscene is protected by the First Amendment,” and even some obscene sexual expression enjoys First Amendment protection if it occurs solely within the confines of the home. Of course, the statute at issue here does not require that the photographs or visual recordings be obscene, be child pornography, or even be depictions of nudity, nor does the statute require the intent to produce photographs or visual recordings of that nature. Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought, and such a regulation is outside the government’s power.

It then goes on to quote a Texas Supreme Court ruling (which in turn is quoting the Federal Supreme Court) in noting:

The government cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts. First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

That's to drive home the point that the fact that many of these laws focus on the person's intent is problematic.

The court further points out:

We also keep in mind the Supreme Court’s admonition that the forms of speech that are exempt from First Amendment protection are limited, and we should not be quick to recognize new categories of unprotected expression

That doesn't mean there aren't possible solutions. The court notes that there is a legitimate interest in protecting privacy, but says that the current law is way too broad, and covers plenty of situations where privacy is not truly implicated.

The State asserts an interest in protecting the privacy of those photographed or recorded. Privacy constitutes a compelling government interest when the privacy interest is substantial and the invasion occurs in an intolerable manner. We agree with the State that substantial privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt.

But § 21.15(b)(1) contains no language addressing privacy concerns. The provision certainly applies to situations in which privacy has been violated, but that is because the provision applies broadly to any non-consensual act of photography or visual recording, as long as it is accompanied by the requisite sexual intent. It is obvious that the portion of the statute at issue is not the least restrictive means of protecting the substantial privacy interests in question.

And thus, the ruling actually suggests a much more narrowly tailored law might pass muster.

there are narrower methods of reaching such situations that address more directly the substantial privacy interests at stake. For instance, subsection (b)(2) of the statute provides an alternative culpable mental state of “with intent to . . . invade the privacy of the other person.” If this culpable mental state were a conjunctive element of subsection (b)(1), it would narrow the provision at least somewhat to address privacy concerns. Subsection (b)(1) could also be narrowed by adding an element that requires that a person’s privacy interest be invaded as a result of the place of the person recorded or the manner in which a visual recording is made. Or the legislature could designate specific places and manners that are proscribed, such as specifically proscribing the taking of a photograph of a person inside his home there are narrower methods of reaching such or the taking of a photograph underneath a person’s clothing. Because less restrictive alternatives would adequately protect the substantial privacy interests that may sometimes be threatened by non-consensual photography, the provision at issue before us fails to satisfy strict scrutiny.

Thus, whether or not the State appeals this ruling to the state Supreme Court (as seems likely), it's possible that a more narrowly tailored law might be allowed, if it really focuses on situations that violate someone's privacy.

In the end, it's good to see overly broad laws tossed out, even if there are extremely legitimate concerns about the nature of revenge porn. Some people have asked why we don't advocate for a specific solution, and the general answer is that it's not clear there's a good one that doesn't also entail significant consequences for other forms of speech (or innovation, in cases where these bills try to attack intermediary liability). Revenge porn sites are immensely problematic, but just because something is problematic does not necessarily mean that a new (often overly broad) law is the answer.

Filed Under: first amendment, free speech, improper photography, intent, peeping tom, photography, revenge porn, texas

DC Police Chief Publicly Criticizes Officer's Actions After He Attempts To Shut Down A Citizen Recording An Arrest

from the an-event-so-rarely-seen,-it-has-long-been-presumed-mythical dept

Over two years ago, Washington, DC Police Chief Cathy Lanier enacted a new policy for her officers to follow when dealing with citizens armed with cameras. Very simply put: leave them alone.

"A bystander has the same right to take photographs or make recordings as a member of the media," Chief Lanier writes. The First Amendment protects the right to record the activities of police officers, not only in public places such as parks and sidewalks, but also in "an individual's home or business, common areas of public and private facilities and buildings, and any other public or private facility at which the individual has a legal right to be present."

Lanier says that if an officer sees an individual recording his or her actions, the officer may not use that as a basis to ask the citizen for ID, demand an explanation for the recording, deliberately obstruct the camera, or arrest the citizen. And she stresses that under no circumstances should the citizen be asked to stop recording. [Emphasis added for reasons that will become clear in a few paragraphs.]

Even if citizens are somehow impeding police work, under no circumstances should they be asked to stop recording. They should be asked to move out of the way and that request should be the totality of the interaction.

The new citizen recording policy was violated the next day. DC police officers seized a man's phone. They later returned it, but without the memory card. Both actions violated Lanier's clear instructions that cameras/phones could only be acquired with the person's permission and that all devices seized must be returned intact.

This policy has now been in effect for nearly 26 months. Some officers apparently have yet to be "read in" on the specifics.

Here's what happened to one citizen who attempted to record an arrest being made.


From the description:

"I pulled out my phone and began recording when I came upon a man being physically restrained by 7 D.C. police officers outside the downtown branch of the D.C. Public Library September 7, 2014, at 6:24 p.m. The video came out blurry, but 48 seconds in, Officer C.C. Reynolds (badge 3983) didn't like that I was recording the proceedings, and tried to intimidate me into leaving the scene."

Officer C.C. Reynolds tries out various tactics, like claiming a public sidewalk is private property, claiming the recording is part of the investigation/evidence, claiming that the person recording could easily become part of the investigation (a little threat) and that the photographer is interfering with the arrest. All of it is false. He also baselessly demands the photographer give him his name and present ID.

So far, nothing surprising. The First Amendment right to record public officials is still intact, but it is very often ignored by those being recorded. What is surprising is the official reaction. None other than the police chief herself criticized the actions of the officer in a written statement to WNEW.

We have an extremely clear policy that addresses the Metropolitan Police Department's recognition of the First Amendment rights enjoyed by – not only members of the media, but the general public as well – to video record, photograph and or audio record MPD members conducting official business or while acting in an official capacity in any public space, unless such recordings interfere with police activity.

We spent an extensive amount of time to ensure that members were aware of the policy (developed in 2011).

The video speaks for itself. I was shocked when I saw it. There is no excuse for an officer to be unaware of the policy.

This matter is under investigation.

Cathy L. Lanier
Chief of Police

It's not very often that a police chief will publicly criticize an officer's actions. Normally, this sort of thing is handled with a blow-off statement about being "under investigation." Only in very rare circumstances is that statement accompanied by a clear admission of fault.

According to Andrew Heining (the photographer who was harassed), he received another out-of-the-ordinary response when he filed a complaint at the precinct.

I filled out a PD-99 Citizen Complaint form with MPD Sunday night and submitted it to Internal Affairs and the District 1 Commander. I heard back from Commander Jeff Brown and Captain Brian Harris on Monday afternoon, and again from Capt. Harris Tuesday night. Capt. Harris told me the officers shown were clearly in the wrong, that he and another officer he showed it to said "What the hell!?" aloud while watching it. He told me that the officers in the video would be disciplined.

If nothing else, this indicates Chief Lanier is dead serious about the new photography/recording policy. It wasn't something slapped into place as a token effort to mollify critics. She wants officers to respect her constituents' First Amendment rights. Even better, it appears other commanding officers feel the same way.

Filed Under: cathy lanier, civil rights, dc police, photography, police, public rights, video taping

Guy Claims Patent On Photographing People In Races And Then Selling Them Their Photos; Sues Photography Company

from the how-is-that-patentable? dept

The folks over at EFF have yet another story of patents gone wrong. This time it's from a guy named Peter Wolf, who owns a company called Photocrazy, that takes photos of sporting events like running and bike races, and then offers to sell people their photos by matching up their bib numbers. This kind of thing has been around forever, but because Peter Wolf paid a lawyer and said some magic words, he got some patents (specifically: 6,985,875; 7,047,214; and 7,870,035). Here's the primary claim in the 875 patent:

1. A process providing event photographs of a sporting event for inspection, selection and distribution via a computer network, comprising the steps of:

taking photographs of at least one participant of a sporting event along at least one point of a course or field thereof;

associating identifying data with each photograph taken, wherein the identifying data is selected from at least one of: a number corresponding to a number worn by a participant, a participant's name, a code acquired from a component worn by a participant, and a date and time, including hour and minute the photograph was taken;

informing the sporting participants of the identifying data;

transferring the photographs to a computer network server;

cataloging each of the photographs in a web-site server according to the identifying data;

accessing the server at a location other than the sporting event and searching for a photograph of a particular sporting event participant utilizing the identifying data; and

displaying the photograph of the sporting event participant for inspection and ordering.

Or, as EFF's Vera Ranieri summarizes:

In plain English: Take photos of a race, tag and sort by bib number and date, and search for photos based on that tag via the Internet. That’s it.

This, of course, is the problem with many patents these days. You could take nearly any half-competent programmer, explain to him what you wanted to do, and they could build you a system like this without any trouble at all. Because there's nothing tricky here at all. It's just putting together a few basic obvious ideas that were really only limited in the past by the underlying technology not being ready. But now that it is... one guy has patents to block anyone else from implementing such an obvious idea. These patents aren't promoting the progress, they're hindering it. It seems likely that under the Alice v. CLS ruling, this patent is not valid.

Wolf is suing a small (mostly part time!) photography company called Capstone for doing some of this. While it's already likely that the patents are invalid, with Capstone, because of how it works, and because of the Limelight v. Akamai ruling, it's likely that Capstone itself isn't even infringing (that ruling said that if separate parties do separate parts of the claim, you can't say that the original party "induced infringement" because there is no direct infringement). But, still, as we've discussed many times, patent lawsuits are crazy expensive. And Capstone is a tiny company:

Capstone doesn’t have a widely-distributed podcast that it can use to drum up the backing of thousands of fans and supporters. Its owner’s own attempt to crowdfund the defense raised only about $5,000. And although Capstone’s business has been profitable, the owner tells us that because of the patent lawsuit and the costs his company is facing, his business faces the very real prospect of shutting down.

Recent reforms have been helpful to reduce costs for some defendants. For example, the Inter Partes Review (“IPR”) program now being implemented at the Patent Office promises to be a much cheaper way to determine validity.  One problem though, is that it is still too expensive for businesses like Capstone. An IPR costs $23,000 in filing fees alone, and requires paying lawyers and often experts as well. 

Ranieri notes that the US Patent Office is accepting comments about dealing with post-grant challenges, and now might be a good time to highlight that it's impossibly expensive for small businesses being sued over questionable patents:

EFF previously advocated for reduced fees for IPR filings by small businesses and others without the ability to fund patent challenges. Unfortunately, the PTO ignored our request. However, the PTO is currently accepting comments regarding the post-grant challenges such as the IPR process. We encourage the public, especially small business owners, to let the PTO know by September 16 that the costs are still too high for many, and absent a lower cost, patent trolls will continue to assert dubious patents against companies they know can’t afford to do anything but settle.

Filed Under: innovation, patent troll, patents, peter wolf, photography, races
Companies: capstone, photocrazy

Photographer Still Insisting He Holds Copyright On Photo By A Monkey, Hints At Possibly Suing Wikimedia

from the test-cases dept

Three years ago, we wrote about the bizarre case of a monkey who apparently grabbed a photographer's camera in a national park in Indonesia and snapped a selfie (that was back before "selfie" was so common a term -- and we just called it a "self-portrait"). There were a few different shots, but the one that clearly got the most attention is this one: As we noted when we wrote about it, it seems fairly clear that the work is in the public domain. We were idly curious about how a news licensing agency (Caters New Agency) could claim the rights to the photograph. A few days later Caters itself demanded that we take down the photo, claiming that the copyright was held by the owner of the camera, David Slater. Slater himself insisted the copyright was his. However, as we explained in fairly great detail, looking at the laws of the US, the UK (where Slater is from) and Indonesia (where the picture was taken) the image is almost certainly in the public domain, no matter how you look at it.

Under all three laws, the rules say that the work needs to be done by a person, and a monkey doesn't count. Slater, however, claims that because the camera is his, it's still his copyright. While that's what many people think copyright law says, it's not actually what copyright law says at all.

The latest is that Slater is apparently still considering legal action against Wikimedia for refusing to take down the image from Wikimedia Commons.

The Gloucestershire-based photographer now claims that the decision is jeopardising his income as anyone can take the image and publish it for free, without having to pay him a royalty. He complained To Wikimedia that he owned the copyright of the image, but a recent transparency report from the group, which details all the removal requests it has received, reveals that editors decided that the monkey itself actually owned the copyright because it was the one that pressed the shutter button.

Mr Slater now faces an estimated £10,000 legal bill to take the matter to court.

First, I should note that if someone thinks the monkey holds the copyright, that's incorrect as well. While it's true that, in most cases, the person who takes the pictures gets the copyright, as noted above, the laws say it needs to be a person, so monkeys don't count. The image is public domain. The "monkey holds the copyright" claim appears to be a mistake by the author of the Telegraph piece. The guy who uploaded it has directly stated that he said there was no copyright (i.e., public domain) because there was no human author.

From here, Slater tries to flip the burden of proof, and claims that the copyright is his until proven otherwise in court:

“If the monkey took it, it owns copyright, not me, that’s their basic argument. What they don’t realise is that it needs a court to decide that,” he said.

While it's true that a court would decide the final result, the burden is actually on the copyright holder. To bring a copyright claim, you first have to prove that you hold the copyright. It's not the other way around. As Sherwin Siy of Public Knowledge notes, a system in which you needed a court to assert an affirmative defense would mean that no one could ever claim self-defense. That's just not how it works.

Slater also seems to believe in an odd "sweat of the brow" concept of copyright that simply isn't relevant:

“That trip cost me about £2,000 for that monkey shot. Not to mention the £5,000 of equipment I carried, the insurance, the computer stuff I used to process the images. Photography is an expensive profession that’s being encroached upon. They’re taking our livelihoods away,” he said.

The amount that the trip cost is meaningless on the copyright status of the photo. Photography is an expensive profession, but sometimes, apparently, it's so simple that... well... even a monkey can do it.

That said, the whole "jeopardizing his income" and "taking livelihoods away" lines are pretty extreme and ridiculous. This photo got Slater a tremendous amount of fame, and a chance to capitalize on that. If he wasn't so focused on a misguided legal fight against Wikimedia, why not use the photo as a calling card to get hired to do all sorts of other wildlife shots?

So why is this even an issue again at all? Well, that's partly Wikimedia's fault. It just released a transparency report, which discusses the whole monkey situation in a case study.

Filed Under: copyright, david slater, monkeys, photography, public domain