Top German Court Rules Facebook's Collection And Use Of Data From Third-Party Sources Requires 'Voluntary' Consent

from the oh-no,-not-more-pop-ups dept

Back at the end of 2017, Germany's competition authority, the Bundeskartellamt, made a preliminary assessment that Facebook's data collection is "abusive". At issue was a key component of Facebook's business model: amassing huge quantities of personal data about people, not just from their use of Facebook, WhatsApp and Instagram, but also from other sites. If a third-party website has embedded Facebook code for things such as the 'like' button or a 'Facebook login' option, or uses analytical services such as 'Facebook Analytics', data will be transmitted to Facebook via APIs when a user calls up that third party's website for the first time. The user is not given any choice in this, and it was this aspect that the Bundeskartellamt saw as "abusive".

After the preliminary assessment, in February 2019 the German competition authority went on to forbid Facebook from gathering information in this way without voluntary permission from users:

(i) Facebook-owned services like WhatsApp and Instagram can continue to collect data. However, assigning the data to Facebook user accounts will only be possible subject to the users' voluntary consent. Where consent is not given, the data must remain with the respective service and cannot be processed in combination with Facebook data.

(ii) Collecting data from third party websites and assigning them to a Facebook user account will also only be possible if users give their voluntary consent.

If consent is not given for data from Facebook-owned services and third party websites, Facebook will have to substantially restrict its collection and combining of data. Facebook is to develop proposals for solutions to this effect.

Naturally, Facebook appealed against this decision, and the Düsseldorf Higher Regional Court found in its favor. However, as the New York Times reports, the Federal Court of Justice, which monitors compliance with the German constitution, has just reversed that:

On Tuesday, the federal court said regulators were right in concluding that Facebook was abusing its dominant position in the market.

"There are neither serious doubts about Facebook's dominant position on the German social network market nor the fact that Facebook is abusing this dominant position," the court said. "As the market-dominating network operator, Facebook bears a special responsibility for maintaining still-existing competition in the social networking market."

Needless to say, Facebook vowed to fight on -- and to ignore the defeat for the moment. The case goes back to the lower court to rule again on the matter, but after the Federal Court of Justice guidance, it is unlikely to be in Facebook's favor this time. There is also the possibility that the case could be referred to the EU's top court, the Court of Justice of the European Union, to give its opinion on the matter.

Assuming that doesn't happen, the ruling could have a big impact not only on Facebook, but on all the other Internet giants that gather personal details from third-party sites without asking their visitors for explicit, voluntary permission. Although the ruling only applies to Germany, the country is the EU's biggest market, and likely to influence what happens elsewhere in the region, and maybe beyond. One bad outcome might be even more pop-ups asking you to give permission to have your data gathered, and be tracked as you move around the Internet.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: data collection, data privacy, germany, permission
Companies: facebook

Libraries Have Never Needed Permission To Lend Books, And The Move To Change That Is A Big Problem

from the permission-culture dept

There are a variety of opinions concerning the Internet Archive's National Emergency Library in response to the pandemic. I've made it clear in multiple posts why I believe the freakout from some publishers and authors is misguided, and that the details of the program are very different than those crying about it have led you to believe. If you don't trust my analysis and want to whine about how I'm biased, I'd at least suggest reading a fairly balanced review of the issues by the Congressional Research Service.

However, Kyle Courtney, the Copyright Advisor for Harvard University, has a truly masterful post highlighting not just why the NEL makes sense, but just how problematic it is that many -- including the US Copyright Office -- seem to want to move to a world of permission and licensing for culture that has never required such things in the past.

Licensing culture is out of control. This has never been clearer than during this time when hundreds of millions of books and media that were purchased by libraries, archives, and other cultural intuitions have become inaccessible due to COVID-19 closures or, worse, are closed off further by restrictive licensing.

What's really set Courtney off is that the Copyright Office has come out, in response to the NEL, to suggest that the solution to any such concerns raised by books being locked up by the pandemic must be more licensing:

The ultimate example of this licensing culture gone wild is captured in a recent U.S. Copyright Office letter. Note that this letter is not a legally binding document. It is the opinion of an office under the control of the Library of Congress, that is tasked among other missions, with advising Congress when they ask copyright questions, as in this case.

Senator Tom Udall asked the Copyright Office to give its legal analysis of the NEL and similar library efforts, and it did so... badly.

The Office responded with a letter revealing their recommendation was not going to be the guidance document to “help libraries, authors, and online outlets,” but, ultimately, called for more licensing. It also continued a common misunderstanding of an important case, Capitol Records, LLC v. ReDigi Inc., 910 F. 3d 649 (2d Cir 2018).

We've written about the Redigi case a few times, but as Courtney details, the anti-internet, pro-extreme copyright folks have embraced it to mean much more than it actually means (we'll get back that shortly). Courtney points out that the Copyright Office seems to view everything through a single lens: "licensing" (i.e., permission). So while the letter applauds more licensing, that's really just a celebration of greater permission when none is necessary. And through that lens the Copyright Office seems to think that the NEL isn't really necessary because publishers have been choosing to make some of their books more widely available (via still restrictive licensing). But, as Courtney explains, libraries aren't supposed to need permission:

Here’s the problem though: these vendors and publishers are not libraries. The law does not treat them the same. Vendors must must ask permission, they must license, this is their business model. Libraries are special creatures of copyright. Libraries have a legally authorized mandate granted by Congress to complete their mission to provide access to materials. They put many of these in copyright exemptions for libraries in the Copyright Act itself.

The Copyright Office missed this critical difference completely when it said digital, temporary, or emergency libraries should “seek permission from authors or publishers prior” to the use. I think think this is flat-out wrong. And I have heard this in multiple settings over the last few months: somehow it has crept into our dialog that libraries should have always sought a license to lend books, even digital books, exactly like the vendors and publishers who sought permission first. Again, this is fundamentally wrong.

Let me make this clear: Libraries do not need a license to loan books. What libraries do (give access to their acquired collections of acquired books) is not illegal. And libraries generally do not need to license or contract before sharing these legally acquired works, digital or not. Additionally, libraries, and their users, can make (and do make) many uses of these works under the law including interlibrary loan, reserves, preservation, fair use, and more!

And, yes, Congress has already made it clear that libraries hold a special place with regard to copyright:

Libraries can make these uses of their legal acquired books without permission because the copyright system, via Section 109 first sale, maintains the market balance long recognized by the courts and Congress as between rightsholders and libraries. Libraries sit right in the middle of the economic purpose of copyright (we buy the books!) and the access purpose of copyright (we loan the books!) – or in the Constitutional narrative, “to Promote the Progress of Science and the Useful Arts” libraries provide unfettered access and freedom to the books they purchase.

When a library legally acquires a book via a sale, it has the right, under the first sale doctrine, to continue to loan that work unimpeded by any further permission or additional fees to the copyright holder. No license is needed. A digitized copy replaces the legitimately acquired copy, not an unpurchased copy in the marketplace. To the extent there is a “market harm,” it is one that is already built into the transaction and built into copyright law: libraries are already legally permitted to circulate and loan their materials. The authors have been paid (as have the publishers) in that first transaction.

Congress, when it legislated the copyright exceptions, made it possible for libraries to fulfill their “vital function in society” by enabling the lending of books to benefit the general learning, research, and intellectual enrichment of readers by allowing access to these materials. And arguably, now that we are in the 21st century, why should we not use technology to allow this loaning to continue online? Let libraries use technology (the same used by the publishers, for example) to INCREASE access to these works, especially during a pandemic.

Courtney then goes on to point out that the whole "license everything" concept fundamentally eviscerates the concept of ownership of private property. Once we've bought something, we should be able to do what we want with it, and the push here to now force libraries to get licenses for books they already own is a direct attack on property rights:

Licenses continue to eviscerate ownership rights for patrons, libraries, and the general public under very restrictive terms. And, these licenses are absolutely not the equivalent of a purchase. These vendors may use the word “buy it now” or “purchase” or “for sale” but, when you read the fine print – it is absolutely the opposite....

When a library or patron agrees to these licenses, at best they are merely renting or leasing temporary access to these works.

Even worse, because a library has special exceptions to copyright as built into law, when we move into a copyright world, libraries are effectively giving up those rights:

Or, in some licenses, the terms are so limited that libraries or their patrons are restricted from the very uses, exceptions, or exemptions made legal in the Copyright Act. I pulled an example of one of the more common licensing clauses:

“Except as explicitly authorized in this License, you agree not to archive, download, reproduce, distribute, modify, display, perform, publish, license, create derivative works from, or use content and information contained on or obtained from the Work....” and “articles, chapters, and other materials made available via this License may not be used for the purpose of interlibrary loan...”

This license takes away nearly all the copyright exceptions for libraries, and many exceptions for the public as well. Licenses do often restrict use beyond what copyright law might otherwise allow. And the licenses do not have consistent language relating to library uses, so they are all different, and all full of boilerplate limiting terms. What other rights are these licenses interfering with?

And after digging into the variety of ways in which copyright law is structured, Courtney makes it clear that libraries have a clear first sale right to lend out books they have in their possession:

Additionally, under Section 109, first sale, a library can place a book on reserve and let it be accessed or checked out as many times as it can. Each patron uses and returns the book – and there is no license, no additional payment, and the library or user does not have to seek any further permission from the copyright holder. Some books have been read hundreds of thousands of times on reserves! The author and publisher were compensated for that first purchase, and from there, the access and loaning can continue unfettered.

As for the ReDigi case regarding digital first sale, Courtney points out that the Copyright Office is blatantly misreading it to make it say a lot more than it really does, specifically with regard to how it impacts libraries and their first sale rights:

Here is the main difference: these ReDigi resales the court examined were exact, bit-for-bit replicas of the original sold in direct competition with “new” mp3s online through other marketplaces, such as iTunes. The substitutionary effect was clear, especially since the mp3 format is the working market experiencing harm.

However, again, a library is not a commercial for-profit company. The books they own, via first sale, are not licensed mp3s. There is clearly a distinguishable analysis here.

For digitized copies of legally acquired print books under the first sale doctrine, the substitutionary effect is

far less clear. With most 20th-century books, the vast majority of books in a library’s collection, the market has almost been exclusively print-based. And, for those books, some new evidence from the Google Books digitization project suggests that digitization may in fact act as a complementary good, allowing digital discovery to encourage new interest in long-neglected works.

Secondarily, the ReDigi court raises a significant question as to whether using digitized copies of legally acquired books may be “transformative” in nature – a modern fair use test adopted by the U.S. Supreme Court. In the decision, examining the first factor of fair use, Judge Level, who established the concept of transformative fair use in a law review article, explained that a use can be transformative when it “utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder.” This sounds awfully close to correct analysis for modern libraries loaning digital copies of books.

There's a lot more in Courtney's analysis, but it is very thorough, and a fairly complete debunking of the Copyright Office's (and others') push that the answer to libraries being shuttered due to the pandemic is merely "more licensing."

Filed Under: copyright office, covid-19, culture, first sale, lending, libraries, licensing, national emergency library, permission
Companies: internet archive

The Associated Press Has Some Explaining To Do About Its 'Tweeted Contract' To Reuse Viral Content

from the this-is-bullshit dept

Five years ago, we wrote a post detailing the crazy permission-asking media scrum that forms on Twitter when people post photographic or video documentation of something major happening. Under such tweets, you'll often see dozens of reporters asking for "permission" to use the images or videos in news reports. In many cases, fair use would likely cover the usage, but news organizations are understandably gun shy about copyright lawsuits from greedy lawyers who would be all too quick to sue them for merely embedding a tweet.

However, it appears that the Associated Press takes this to absolutely insane, and legally problematic, levels. And it appears that the AP would rather not talk about this.

You may have seen that, over the weekend, there was an explosion in downtown LA. Others in Los Angeles were able to see the fire and posted images and videos on Twitter. One of these was Brian Magno, who tweeted a 21 second video of the fire:

In response, the usual media scrum descended. Among them was an editor for the Associated Press, named RJ Rico. Rico didn't just ask for permission to use the video, like most other reporters, but with the request, he posted an image of what he called a "social media release form." I can't link you to the tweet because by Sunday evening Rico had protected his Twitter account (we'll come back to that later). Thankfully, I got a screenshot before all that happened:

The "Social Media Release Form" is truly a piece of work. Here's what it says:

Social Media Release Form

Please respond to this message with confirmation that you agree to the following:

The Associated Press and its subsidiaries and affiliates ("AP") shall have the world-wide, non-exclusive right to (and all consents necessary to) use, reproduce, prepare derivative works of, edit, translate, distribute, publicly perform, and publicly display the content throughout the world in perpetuity by any and all means now known or hereafter created in all media known or hereafter created, and AP shall further have the right to license these rights to others; and

That you are the copyright owner or the copyright owner's authorized agent and that you are full entitled to grant these rights in favor of AP and that there is no agreement or other restriction preventing this grant of rights. You agree to indemnify and hold harmless the AP and its licensees from and against any claims, losses, liability, damages, costs and expenses arising from any breach or alleged breach of these representations and warranties.

Okay, so, first things first, you should basically never, ever, ever just "agree" to a contract that someone tweets at you as an image. But there are some really problematic elements of this "release form." First is the fact that it grants relicensing rights to the AP, so that they somehow can pass along this image to anyone they want without any restriction. From this, it certainly seems like the AP could then choose to sell the licensing to others and the original copyright holder couldn't do anything about that even if he didn't like it. This term probably isn't quite as bad as some people are making it out to be, and is more in line with typical website terms of service licensing grants, that just cover that the rights can be passed on to future entities (should the organization come under control of another entity, for example). It's still pretty broadly worded though, and anyone agreeing to it should be careful.

But the much bigger issue is the indemnity clause, which would mean that if there were some sort of legal dispute over the image, all of the costs would basically fall back on poor Brian Magno. And that includes if there were a legal dispute with one of those licensees down the road that he agreed to let the AP pass along the license to. The indemnification clauses are, tragically, common in many freelance contracts, and I've taken to simply crossing them out of any writing contract I've engaged in (and have not had anyone push back on that yet). Suffice it to say, no one should agree to these AP terms. If you want a thorough explanation of how these clauses could come back to bite you, this is a good thread:

A bunch of folks started calling this nonsense out, including lawyer Jay Wolman, who worried that people were agreeing to the "release form" without speaking to a lawyer or understanding what they were agreeing to. In response, Rico blocked him on Twitter, which is pretty fucked up. Indeed, a bunch of law twitter started pointing out how ridiculous this policy is, and Rico started blocking more of them:

In short, you never know if there might be a legal dispute down the road, and there are countless reasons why there might be, even if you don't care about the image at all. And, yet, if there is, you've just agreed to pay a giant company's legal fees. With a tweet. Think about that.

That's bad. And, then on Sunday (as already noted), Rico took his entire account private.

I'm kind of wondering what that even means for anyone who agreed to Rico's tweeted contract in the first place. Unless they took a screenshot of it, they can't even prove that they ever saw it or what they agreed to -- because it's now hidden away.

Wolman began investigating this entire practice, and has traced it back at least to 2015 (coincidentally, a month after my article about how this Twitter media scrum descends on such things):

It's possible it goes back even earlier, but as Wolman has investigated, another AP reporter blocked him and then went private.

This is a horrific practice by the Associated Press, and it really should (1) apologize, (2) revoke any of those agreements for anyone who did agree to them, and (3) no longer do that again.

Filed Under: embedding, fair use, indemnification, journalists, permission, rj rico, scrum, social media release, tweeted contracts, viral content
Companies: associated press

Facebook Claims Users Sign Up Because They Want To See Personalized Ads, Max Schrems Disagrees -- And Usually Wins These GDPR Arguments

from the time-to-start-planning-for-defeat dept

The privacy activist Max Schrems has been conducting a battle on multiple fronts against Facebook's use of personal data. Last year, Techdirt wrote about one of the skirmishes, which saw the EU's highest court, the Court of Justice of the European Union (CJEU), ruling that Schrems could use the GDPR to litigate in Austria, where he is based, rather than in Ireland, where Facebook has its international headquarters. The latter option would have been prohibitively expensive for Schrems, and would probably have meant he dropped the case.

Schems has now begun his legal action in Austria, before the Vienna Regional Court. According to Schrems, Facebook admitted that it has been collecting and processing data without users' consent since the introduction of the GDPR last year. However, in an interesting move, Facebook has claimed that it is not breaking EU law for the following reason:

According to the GDPR, in addition to consent, there is also the possibility of processing data for the "performance of a contract" (Article 6(1)(b) GDPR). Facebook now claims to have concluded such an "advertising contract" with users who, according to Facebook, have ordered "personalized advertising" when they signed up to the new terms and conditions on May 25, 2018.

Essentially, Facebook is claiming that people join its service because they are simply dying to see all those personalized ads that Facebook wants to show them. To counter that novel claim, Schrem's organization NOYB commissioned a study by the Austrian Gallup Institute, which interviewed a representative sample of 1000 Austrians (original in German - pdf). According to Gallup, only 4% of the sample actually loved the ads, with 6% liking them slightly, 21% indifferent and 69% disliking them or really disliking them. That's only one survey, but it certainly suggests that Facebook is clutching at straws with its new line of arguing. According to NOYB:

Cecilia Álvarez (Privacy Policy Director of Facebook EMEA) was questioned by the Viennese judge yesterday. However, she was unable to answer many of the questions. Facebook's lawyers argued that she lacked the "technical understanding" to answer questions on Facebook's handling of personal data.

As Schrems points out, Facebook would have the court believe that users know exactly what they are committing to when they agree to the service's terms and conditions, and yet: "not even the top Facebook privacy expert can explain exactly what the company does with our data." The hearing before the Viennese court to decide the issue has been adjourned until February, so nothing more will happen until then. But the stakes are high. Schrems comments: "If we succeed, Facebook will have to change its practices to comply with the GDPR and give users real voting rights. That’s our goal."

Moreover, a victory by NOYB on this point, if confirmed by the CJEU, would affect every company operating in the EU that gathers private data from its users, and sells advertising based on the personal details. However much Internet services like Facebook and Google might hate that prospect, they know that it is a real possibility, as proved by Schrems' already impressive track record of winning these kind of GDPR arguments.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: austria, eu, gdpr, max schrems, permission, personalized ads, privacy
Companies: facebook, noyb

The End Of The Open Internet: Cory Doctorow's Op-Ed From The Future

from the let's-hope-it-doesn't-come-to-this dept

The NY Times is running an "Op-Eds From the Future" series, which is a creative idea. In a recent one, Cory Doctorow matched the theme perfectly by highlighting what world looks like without an open internet, when companies are forced to monitor and filter everything. The point he's making is that, especially with changing laws in the EU and some of the proposals in the US, the liability for hosting content will become too great, and we'll shift from an internet that is open for communmications to one that is a "broacast" world of carefully vetted and fully "licensed" content. His title makes the premise clear: I Shouldn’t Have to Publish This in The New York Times.

Ten years ago, I could have published this on my personal website, or shared it on one of the big social media platforms. But that was before the United States government decided to regulate both the social media platforms and blogging sites as if they were newspapers, making them legally responsible for the content they published.

The move was spurred on by an unholy and unlikely coalition of media companies crying copyright; national security experts wringing their hands about terrorism; and people who were dismayed that our digital public squares had become infested by fascists, harassers and cybercriminals. Bit by bit, the legal immunity of the platforms was eroded — from the judges who put Facebook on the line for the platform’s inaction during the Provo Uprising to the lawmakers who amended section 230 of the Communications Decency Act in a bid to get Twitter to clean up its Nazi problem.

He goes through the inevitable progression of events in a world without Section 230, in which various countries enact stricter and stricter laws, and the liability burdens become increasingly too great on companies, leading them to ramp up automated filters that don't work very well, and then nothing works right, especially if you're discussing a serious topic:

The platforms and personal websites are fine if you want to talk about sports, relate your kids’ latest escapades or shop. But if you want to write something about how the platforms and government legislation can’t tell the difference between sex trafficking and sex, nudity and pornography, terrorism investigations and terrorism itself or copyright infringement and parody, you’re out of luck. Any one of those keywords will give the filters an incurable case of machine anxiety — but all of them together? Forget it.

And the real kicker, none of that automation solved any of the "issues" that lawmakers insisted they were solving in the first place. And the key point in all of this: in deciding that bad stuff on the internet was the fault of big internet companies, you inevitably lock in those giants:

But instead, we decided to vest the platforms with statelike duties to punish them for their domination. In doing so, we cemented that domination. Only the largest companies can afford the kinds of filters we’ve demanded of them, and that means that any would-be trustbuster who wants to break up the companies and bring them to heel first must unwind the mesh of obligations we’ve ensnared the platforms in and build new, state-based mechanisms to perform those duties.

It's a good, fun, readable vision of the world we're currently heading for based on EU regulations and some of the nonsense being suggested regarding Section 230 today.

The really annoying part is how little those who are pushing these regulations seem to realize what they're doing. Everyone is so focused on Section 230 these days as if it's the only "lever" they have to pull in regards to their complaints (some of which are totally reasonable) about the big internet companies. Very few of them bother to consider how all of this plays out -- which is why it's great that Cory is doing so. Of course, those who don't want to recognize what will happen don't seem to care. I've seen a few people dismissing the story as "fiction," which kind of misses the point. Hilariously, they're doing so on social media platforms enabled by the laws that these people are now trying to kill.

Filed Under: broadcast, communications, cory doctorow, filters, gatekeepers, intermediary liability, op-ed from the future, permission

EU Gives Up On The Open Web Experiment, Decides It Will Be The Licensed Web Going Forward

from the this-is-bad dept

Well, this was not entirely unexpected at this point, but in the EU Parliament earlier today, they voted to end the open web and move to a future of a licensed-only web. It is not final yet, as the adopted version by the EU Parliament is different than the (even worse) version that was agreed to by the EU Council. The two will now need to iron out the differences and then there will be a final vote on whatever awful consolidated version they eventually come up with. There will be plenty to say on this in the coming weeks, months and years, but let's just summarize what has happened.

For nearly two decades, the legacy entertainment industries have always hated the nature of the open web. Their entire business models were based on being gatekeepers, and a "broadcast" world in which everything was licensed and curated was perfect for that. It allowed the gatekeepers to have ultimate control -- and with it the power to extract massive rents from actual creators (including taking control over their copyright). The open web changed much of that. By allowing anyone to publicize, distribute and sell works by themselves, directly to end users, the middlemen were no longer important.

The fundamental nature of the internet was that it was a communications medium rather than a broadcast medium, and as such it allowed for permissionless distribution of content and communication. This has always infuriated the legacy gatekeepers as it completely undermined the control and leverage they had over the market. If you look back at nearly every legal move by these gatekeepers over the last twenty five years concerning the internet, it has always been about trying to move the internet away from an open, permissionless system back towards one that was a closed, licensed, broadcast, curated one. There's historical precedence for this as well. It's the same thing that happened to radio a century ago.

For the most part, the old gatekeepers have not been able to succeed, but that changed today. The proposal adopted by the EU Parliament makes a major move towards ending the open web in the EU and moving to a licensed, curated one, which will limit innovation, harm creators, and only serve to empower the largest internet platforms and some legacy gatekeepers. As Julia Reda notes:

Today’s decision is a severe blow to the free and open internet. By endorsing new legal and technical limits on what we can post and share online, the European Parliament is putting corporate profits over freedom of speech and abandoning long-standing principles that made the internet what it is today.

The Parliament’s version of Article 13 (366 for, 297 against) seeks to make all but the smallest internet platforms liable for any copyright infringements committed by their users. This law leaves sites and apps no choice but to install error-prone upload filters. Anything we want to publish will need to first be approved by these filters, and perfectly legal content like parodies and memes will be caught in the crosshairs.

The adopted version of Article 11 (393 for, 279 against) allows only “individual words” of news articles to be reproduced for free, including in hyperlinks – closely following an existing German law. Five years after the ‘link tax’ came into force in Germany, no journalist or publisher has made an extra penny, startups in the news sector have had to shut down and courts have yet to clear up the legal uncertainty on exactly where to draw the line. The same quagmire will now repeat at the EU level – no argument has been made why it wouldn’t, apart from wishful thinking.

This is a dark day for the open internet in the EU... and around the world. Expect the same gatekeepers to use this move by the EU to put pressure on the US and lots of other countries around the world to "harmonize" and adopt similar standards in trade agreements.

I know that many authors, musicians, journalists and other content creators cheered this on, incorrectly thinking that was a blow to Google and would magically benefit them. But they should recognize just what they've supported. It is not a bill designed to help creators. It is a bill designed to prevent innovation, lock up paths for content creators to have alternatives, and force them back into the greedy, open arms of giant gatekeepers.

Filed Under: article 11, article 13, broadcast, copyright, eu copyright directive, gatekeepers, internet, license, link tax, open web, permission, upload filters

The Demise Of Copyright Toleration

from the permissionland dept

In the Supreme Court oral argument (p. 12) of MGM Studios, Inc. v. Grokster, Ltd, Don Verrilli, attorney for the Recording Industry Association and other content owners, raised eyebrows:

“The record companies, my clients, have said, for some time now … that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod.”

Counsel for these content owners seemed to be acknowledging, before our highest court, that if you copy a prerecorded song into a more convenient format strictly for your own use it is a fair use under Section 107 of the Copyright Act. But less than a year later they explained away the statement that the Court transcript had “attributed” to their attorney. In a filing with the Copyright Office in the 2006 round of use exemptions under the Digital Millennium Copyright Act, counsel for a group of content owners, including the RIAA, said (n.46, emphasis added):

“Nor does the fact that permission to make a copy in particular circumstances is often or even routinely granted, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright owners in the MGM v. Grokster case is simply a statement about authorization, not about fair use.”

Although denying fair use, these content owners were acknowledging a larger truth about copyright, the Internet, and even the law in general: It works largely due to toleration. Not every case is clear; not every outcome can be enforced; and not every potential legal outcome can be endured. Instead, “grey area” conduct must be impliedly licensed, or at least tolerated.

Counsel then or now could not have cited a single court holding on whether the private, noncommercial recording of a song is a lawful fair use. Long before the Supreme Court in Sony Corp. of America v. Universal City Studios, Inc. said that video home recording from broadcasts as a fair use, the music industry could have pursued consumers for home audio recording from vinyl records. But the risk of losing and establishing a bad precedent was too great.

Toleration endured because fair use, and the practicalities of enforcement, had to be endured by content owners. They recognized that their own creative members also relied on fair use in adapting and building on the works of contemporaries as well as earlier generations. They also realized that offending consumers by suing them might not be a good idea – a reason (in addition to the possibility of losing) why the Sony plaintiffs dropped the individual consumer defendants they had originally named.

But one of the virtues of fair use is that it often points to directions that authorized users had failed to notice. And once “the street” has shown the way, the content owners cite the new genre as a form of “derivative work” – and seek to monetize it. The Supreme Court, in the course of protecting a parody of Pretty Woman in Campbell v. Acuff-Rose Music, Inc., left the door to this grey area wide open:

“The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.”

Those with a stake in precedents still approach this door with caution. But the emergence of Internet search and tagging, social media, and troll lawyers has meant that the climate of toleration may be ending, as the door to grey areas is being forced closed.

• First came the patent trolls – plaintiffs who essentially buy the right to sue, with little to lose from any adverse precedent. They find, sue, and harass entrepreneurs, retailers and consumers, as leverage for settlements.

• Then came the copyright trolls – rights aggregators and their lawyers who find web and social media postings and links that were posted under assumptions of fair use, rights holder marketing encouragement, or toleration. Consumer defendants are accustomed to seeing such posts by rights holders themselves; they assume that any complaint about their own use must be spam.

• Classic copyright “troll” clients have been pornographers. But rights aggregators and their attorneys have now branched out to, and beyond, making deals with individual photographers and cartoonists who seek to further monetize their work. At least one has signed up major music publishers as clients and moved from harassing school and college marching bands and choirs to threatening symphony orchestras. They threaten to sue over commissioned or in-house arrangements as derivative works, in need of an additional license beyond blanket performance rights – a grey area long respected and tolerated by the music industry. (A strict interpretation of such a “right” would mean the end of academic and group member jazz arranging of copyrighted works.)

Now to apply the coup de grace to implied license and toleration comes the CASE Act – “Copyright Alternative in Small-Claims Enforcement Act of 2017 – H.R. 3945, before the House Judiciary Committee. It disregards grey areas and would destroy the toleration that has made copyright viable in the face of swiftly changing times and technologies. It would set up “commissioners” within the Copyright Office to rule on “small claims” cases without precedent or appeal on the merits to any court. Yet “statutory damages,” pursued at the discretion of the plaintiff, could still reach $30,000.

Techdirt recently reviewed here what a bad idea this bill is. It is also probably unconstitutional. But a larger issue is what such a law would say about copyright, and about grey areas and tolerance. It denies the existence and necessity of each. This may be the biggest reason why this bill should never become law.

Guest contributor Robert S. Schwartz practices law at Constantine Cannon LLP. The views expressed are his own.

Filed Under: case act, copyright, copyright toleration, fair use, permission, small claims

Many Of Those Desperate GDPR Emails You've Been Getting Are Violating A Different EU Regulation

from the not-to-mention-unnecessary dept

As we careen wildly into a post-GDPR world at the end of this week, you've probably already been inundated with tons upon tons of emails from various companies where you either have an account or have been signed up for their mailing list. Some of these emails likely note that they want you to confirm that you want to remain on their list because of the GDPR. Others pretend they're just checking in with you for the hell of it. According to an expert in EU regulation, many of these emails probably violate another EU regulation, one designed to make spamming illegal. As for the others? They're almost certainly not necessary under the GDPR and appear to be people misunderstanding the GDPR "out of an abundance of caution."

In short, if a service already has proper permission from you, then it doesn't need to get it again. If it doesn't, it's violating EU spam regulations by asking you to give your consent to receive such messages.

Vitale said, if the business really does lack the necessary consent to communicate with you, it probably lacks the consent even to email to ask you to give it that consent.

“In many cases the sender will be breaching another set of regulations, the Privacy and Electronic Communications Regulations, which makes it an offence to email someone to ask them for consent to send them marketing by email.”

And, yes, EU regulators are aware of all of this:

“We’ve heard stories of email inboxes bursting with long emails from organisations asking people if they’re still happy to hear from them,” Steve Wood, the deputy information commissioner, wrote in guidance for businesses. “So think about whether you actually need to refresh consent before you send that email, and don’t forget to put in place mechanisms for people to withdraw their consent easily.”

Like Vitale, Wood emphasised that asking for marketing consent from people who had not given it initially could be illegal. “It’s also important to remember that in some cases it may not be appropriate to seek fresh consent if you are unsure how you collected the contact information in the first place, and the consent would not have met the standard under our existing Data Protection Act,” he said.

Depending on how you look at this, it's either the most European of European regulation situations -- in which efforts to comply with a new set of convoluted regulations means violating existing convoluted EU regulations -- or just another example of how ridiculous companies act. Still, it does seem fairly clear that the whole GDPR situation is an utter mess, with tons of companies having no idea what they actually need to do, or how to actually comply with the law.

Whether you think the GDPR is a wonderful innovation in protecting our privacy, or you think it's a giant clusterfuck of bureaucratic virtue signaling, it does seem like it could be something of a general problem if basically every internet company everywhere has no idea how to actually be in compliance.

Filed Under: data protection, email, eu, gdpr, opt-in, permission, privacy, spam

Nintendo Nixes Live Streams For Its Own Creators Program For Some Reason

from the nintendon't dept

In 2014, following nearly a full year of waging an intellectual property war on YouTubers doing "let's play" videos with its games, Nintendo unleashed upon the world what would eventually become its "Creators Program". Through the program, YouTubers would be allowed to put videos including Nintendo IP on their channels in exchange for revenue sharing between the creator and Nintendo itself. For a company like Nintendo, which had built a reputation for exerting strict control in this arena, it felt like a huge step forward. It took only a few months before the whole thing began devolving into a bureaucratic mess, with: language in the affiliate agreement clearly geared towards garnering positive coverage from YouTubers; a mishandling of the influx of interest in the program by creators themselves; and a strange whitelist and blacklist of what games could be covered, which hurt channels with extensive back catalogs of content that might need to be deleted. Some high profile YouTubers swore off covering Nintendo games in revolt, while everyone else was left wondering why this had to be handled so badly.

It doesn't seem to be getting any better. For some reason, in the past few days, Nintendo suddenly nixed live-streams from channels affiliated with the Creators Program.

As of today, YouTubers who are also registered members of the Nintendo Creators Program are no longer allowed to broadcast content on YouTube Live. Nintendo gives partners two options: they can broadcast content on YouTube Live from a channel that isn't registered to the program, or they can cancel their channel's registration to the program, and instead register their videos to the program separately. The changes were announced in an email sent to content creators yesterday evening, although Nintendo didn't officially publish the changes to the program until today.

Some Twitter users have posted the contents of the email, which announces that changes have been made as to how the Nintendo Creators Program will handle revenue generated from live streams. It adds that live streaming falls “outside the scope” of the program.

If that sounds like a confusing mess to you, you aren't alone. YouTubers themselves, who actually have to navigate these waters as professionals, have expressed reactions ranging from outrage to disappointment to downright confusion. Some are calling the move stupid. Others are pointing out that any random person not in the Creators Program is able to live-stream Nintendo games, yet officially sanctioned creators cannot. Most reactions amount to pointing out that this doesn't make any sense. Even those covering the story, such as Kotaku, seem to be at a complete loss.

It's uncertain as to why Nintendo introduced this policy. It's also unclear if Nintendo has similar rules for those live streaming Nintendo-copyrighted content on other sites such as Twitch. Representatives for Nintendo did not respond by press time.

When the two chief reactions to a policy shift from those affected by it amount to anger and confusion as to why the shift was even necessary, that's not a good look. With Nintendo staring blankly at requests for clarification from the press, both YouTubers and the public are left to speculate as they please. Though it seems most are content to rage at Nintendo for this decision.

Filed Under: let's play, permission, video games, video streams
Companies: nintendo

The Crazy Permission-Asking Media Scrum That Descends When Photographic News Happens On Twitter

from the insanity-in-the-making dept

As you may have heard last week, a British Airways plane caught fire as it was taxiing on the runway preparing for takeoff. Thankfully, everyone on board escaped with just a few minors scratches and bruises. The plane wasn't so lucky. However, there were lots of other people around on other flights witnessing the whole thing and -- not surprisingly -- many of them have Twitter accounts. And, as has become fairly standard when visual news breaks somewhere with people around, they started tweeting photos. Here's David L. Somers at 4:16pm:

Just landed in Vegas to see this...plane on fire on the Tarmac...people still onboard and running off! pic.twitter.com/ul10hFFw9j

— David L. Somers (@DL_Somers) September 8, 2015

And here's Bradley Hampton at 4:17pm:

Plane on fire on LAS runway! @FoxNews pic.twitter.com/iQiHzV22Bq

— Bradley Hampton (@Bradley_Hampton) September 8, 2015

And here's Eric Hays at 4:20pm:

Just landed in Las Vegas, plane is on fire. People were on boaard but it looks like they all got off in time. pic.twitter.com/0AN5HvBB5G

— Eric Hays (@ericmhays) September 8, 2015

There were a bunch of others as well, but those were three of the earliest that got the most attention.

Now, some of us might marvel at this amazing world we now live in, where everyone can be a broadcast reporter should news suddenly happen around them. It's kind of amazing. But, perhaps even more fascinating is the somewhat insane mainstream media scrum that immediately follows. All three of these guys were almost immediately bombarded with news producers from TV, newspaper and online media, all asking for permission to use their photos. This is just a sampling because if I posted them all, i think my hand would cramp up from cutting and pasting so many embed codes. Notice that a bunch of the requests come from the very same news organizations, many asking if they can use it on all platforms/affiliates and such:

@DL_Somers Hi David. May we get your permission to use this photo?

— FOX5 Las Vegas (@FOX5Vegas) September 8, 2015

@DL_Somers can we please use your pic on @23ABCNews? thx in advance either way

— Justin Burton (@jburtonnews) September 8, 2015

@DL_Somers David, may KING 5 in Seattle use your photo, with credit?

— KING 5 News (@KING5Seattle) September 8, 2015

@DL_Somers, Hi, I'm a reporter for @ABC's @WNTonight. Glad you're okay. May we have permission to use this photo on all platforms?

— Erin Dooley (@erindooley) September 8, 2015

@DL_Somers Hi David, may Fox 10 in Phx have permission to use this photo as well?

— Linda Fox 10 (@lindawfox10) September 9, 2015

@DL_Somers I'm sure you're annoyed by these requests... but can we also use this pic on-air tonight? Thanks.

— Seth Kaplan (@Seth_Kaplan) September 8, 2015

@DL_Somers Hello! Can we please have your permission to use this photo on-air and online?

— ABC7 News (@abc7newsBayArea) September 8, 2015

@DL_Somers can we use this picture?

— FOX21 News (@FOX21News) September 9, 2015

@DL_Somers hey there -- i'm with @KATUNews, may we use this image on air?

— Mila Mimica (@MilaMimica1) September 8, 2015

@DL_Somers Hi, I'm with NBC Bay Area? Is it OK to use photos on all NBCU platforms w/ credit to you? thx!

— NBC Bay Area (@nbcbayarea) September 8, 2015

@DL_Somers I work for Channel 13 in Las Vegas. Can we use your picture on our newscast?

— Tessie Sanchez (@vegassanchez24) September 8, 2015

@DL_Somers Andres here with CNN, Can we use your photo permanently on all our platforms and affiliates?

— Andres Gonzalez (@andago101) September 8, 2015

@DL_Somers Hi David - may we please use this photo on @itvnews?

— Stephen Jones (@SteveJonesITV) September 8, 2015

@DL_Somers Is this your picture? If so, please can we use it for our coverage on Sky News (UK), obviously with a credit? Let me know, thanks

— Huw Borland (@SkyNewsHuw) September 9, 2015

@DL_Somers Hi, I'm requesting on behalf of all media agencies in Kenya, can we use this photo on all our platforms before it's stolen?

— *Michael Shoe Maker* (@ki_bet) September 9, 2015

@DL_Somers Hi David! Here's another request from the CBS in San Diego... Can we add it to our story?

— Paco Ramos (@kicknpac) September 9, 2015

@DL_Somers Hi, I'm with the NY Daily News. Could we have permission to use this pic if we credit back to you? Thanks.

— TWLevinson (@TmasReports) September 8, 2015

@DL_Somers Hi David - can we use your picture on @SkyNews platforms? Thanks

— Tom Boadle (@TomBoadle) September 9, 2015

@DL_Somers Would it be OK for FOX11 in Los Angeles to use your photo? We can give you a credit.

— Steve Herren (@Pasadenanews) September 9, 2015

@DL_Somers Hey David. I'm with NBC News. May we have permission to use your photo across all our platforms? Thank!!

— Gemma (@GemmaDiCas) September 8, 2015

@DL_Somers May CBS News use this photo for affiliates, web, international and network thanks stay safe!

— Sammy Rose Been (@Sammy_Roses) September 9, 2015

@DL_Somers CAN CBS USE THIS PIC?

— david parrish (@dparrishcbs2) September 8, 2015

@DL_Somers CBS in Las Vegas, can we use your picture?

— Rebecca Krshul (@rebeccanicolle) September 8, 2015

@DL_Somers we are SaferSkies Nigeria do we have your permission to use this picture on our site and sister publications? @NLIGlobal1

— Safer SkiesNG (@SaferSkiesNG) September 9, 2015

@DL_Somers my name is Rugba Karika with NTA 2 channel 5 news. Please can I have your permission to use this picture? Thanks in advance.

— Elyon (@fega_RK) September 9, 2015

@DL_Somers hi I work for saudi channel 2 , may I get your permission to use this pic?

— Mawzez! (@Sooma_4) September 9, 2015

@DL_Somers hi david CBS Channel 2 news here can we have permission to use this photo? we will credit u on allmedia platforms plz let us know

— Jen P (@Jenwestbay) September 9, 2015

@DL_Somers AMAZING PIC DAVID! can we show on the news in Orlando tonight?

— ERIN DREW KENT (@ERINDREWKENT) September 9, 2015

@DL_Somers @7ANQ_ hi david , can we use your pic on @spagov ?

— ): #56 (@milani_1899) September 9, 2015

@DL_Somers Hi May I have permission to use this photo on all platforms?

— AZoooz (@AZIZALALI1) September 9, 2015

@DL_Somers Hi David did you take this pic? Could we please use it for our FOX News coverage?

— John Potratz (@johnpotratz) September 9, 2015

@DL_Somers Hi David. I work for the NBC station in Houston (KPRC-TV). May we have permission to use your photo?

— Steve Lulgjuraj (@EPSteveL) September 9, 2015

@DL_Somers Hi David. I work for Reuters and we're reporting on this. Would you mind following me so I can DM you about the picture? Thanks.

— George Sargent (@georgesarge) September 9, 2015

@DL_Somers Hi there! I'm from WCBS News New York...can we use this photo on air and all platforms? We will credit you!

— Ariana Induddi (@Ariana_Induddi) September 8, 2015

@Bradley_Hampton Hi Bradley... FOX31 in Denver would like to see if we can get permission to use your photos on air and online.

— KDVR FOX31 Denver (@KDVR) September 9, 2015

@Bradley_Hampton I work for NBC Bay Area News. Can we please use your photos. We would credit you.

— Anthony Leong (@anthonyleong83) September 8, 2015

@Bradley_Hampton Hi Bradley, I work for ABC11 in North Carolina, can we use this picture online and on-air?

— Taylor Lisenby (@TaylorLisenbyTV) September 9, 2015

@Bradley_Hampton @Bradley_Hampton Hi Bradley, Can we use your images with credit at The Australian? Many regards, hope everyone is safe

— Marc Dodd (@marcdodd) September 9, 2015

@Bradley_Hampton Bradley, Kelsey from CBS News here. May we have permission to use your images of this event on our platforms w/ credit?Thx

— Kelsey Gore (@KGoreCBS) September 8, 2015

@Bradley_Hampton I'm with CBSNews - May we use your plane on fire photos for affiliates, web, international and web? Thanks stay safe

— Sammy Rose Been (@Sammy_Roses) September 8, 2015

@Bradley_Hampton Andres here with CNN, Can we use your photo permanently on all our platforms and affiliates?

— Andres Gonzalez (@andago101) September 8, 2015

@Bradley_Hampton Are you okay? If so, can CNN use this photo?

— Adrienne (@adriennelu15) September 8, 2015

@Bradley_Hampton Hi, I'm with the NY Daily News. Could we have permission to use your pics if we credit back to you? Thanks!

— TWLevinson (@TmasReports) September 8, 2015

@Bradley_Hampton @FoxNews would like to use for Cox Media Group, with credit

— Bonnie Buck (@bonniebuck) September 8, 2015

@Bradley_Hampton Hi, can NBC Bay Area use these photos across all NBCU platforms with credit to you? thanks!

— NBC Bay Area (@nbcbayarea) September 8, 2015

@Bradley_Hampton Oh no! HOpe everyone's ok. Can we share this photo on our platforms? You'll be credited.

— Fresco News License (@frescolicense) September 8, 2015

@Bradley_Hampton hi Bradley, Polly with @Newsweek. Can we use this photo with credit?

— Polly Mosendz (@polly) September 8, 2015

@Bradley_Hampton Bradley, may KING 5 in Seattle use your photo, with credit?

— KING 5 News (@KING5Seattle) September 8, 2015

@Bradley_Hampton Hi Bradley, I work with NBC News. Can we have permission to use your photos across all platforms? Will credit you. Thanks!

— Michelle Cho (@mcho24) September 9, 2015

@Bradley_Hampton Hi Bradley. Can we use your pics on BBC News please?

— James Cook (@BBCJamesCook) September 8, 2015

@Bradley_Hampton What a picture! Can FOX31 in Denver get your permission to use on air and on http://t.co/bBIlMoRQV7 with credit to you?

— KDVR FOX31 Denver (@KDVR) September 8, 2015

@Bradley_Hampton Hi Bradley, may we use your photo w/ credit at @wsvn?

— Brandon (@Launerts) September 8, 2015

@Bradley_Hampton Hi Bradley--Can we have permission to use South Florida Reporter with credit to you?

— Media Alert (@MediaAlert) September 9, 2015

@Bradley_Hampton May the European Pressphoto Agency move your photos on our wire with credit to you?

— Matt Campbell (@EPAFOTOG) September 9, 2015

@Bradley_Hampton Hi Bradley, hope everyone is alright, can we use please?

— Alexander Ward (@alexanderj_ward) September 9, 2015

@Bradley_Hampton Hi Bradley, I work for 10News in San Diego. Can we use your photo online if we credit you?

— Stacy Haynes (@StacyeHaynes) September 8, 2015

@Bradley_Hampton Great photo. May we use your photos with credit for our news coverage? Please reply. TX

— MailOnline Pictures (@MailOnline_Pics) September 8, 2015

@Bradley_Hampton CBS in Las Vegas, can we use your picture?

— Rebecca Krshul (@rebeccanicolle) September 8, 2015

@Bradley_Hampton Can Demotix news agency in the UK syndicate this photo and the others you have to our media clients with a credit to you?

— Matthew Richards (@forestmat) September 8, 2015

@Bradley_Hampton hi bradley, can we use your photo with credit in Manfouha, (Riyadh, Saudi Arabia) newspaper!

— مجلاد (@jallad) September 9, 2015

@Bradley_Hampton hi CBS Channel 2 news here, can we have permission to use this photo we will credit you on all media platforms. thank you!

— Jen P (@Jenwestbay) September 9, 2015

@Bradley_Hampton Hi there! I'm from WCBS News New York...can we use this photo on air and all platforms? We will credit you!

— Ariana Induddi (@Ariana_Induddi) September 9, 2015

@Bradley_Hampton can we use this image on our platforms for Newsday please respond thanks and great photo Bill Perlman Newsday Photo Editor

— Newsday Photography (@newsdayphoto) September 9, 2015

@ericmhays Hey Eric. Can KTLA use your pic with on screen credit to you? Thanks.

— Nidia Becerra (@nidia_b) September 8, 2015

@ericmhays can we please use your plane fire pic on @23ABCNews? - thx either way in advance

— Justin Burton (@jburtonnews) September 8, 2015

@ericmhays Hi Eric, may we have permission to use this photo on-air and online?

— ABC7 News (@abc7newsBayArea) September 8, 2015

@ericmhays We hope everyone is okay! Can we share this with news outlets on our platform? All uses will credit you as the photographer.

— Fresco News License (@frescolicense) September 8, 2015

@ericmhays ----- Is this ok if WBZ-TV in Boston uses?

— Chris (@ChrisNWBZTV) September 8, 2015

@ericmhays Are you okay? If so, can CNN use this photo?

— Adrienne (@adriennelu15) September 8, 2015

@ericmhays Hi Eric. I'm with ABC/KGO in San Francisco. May we air your photo?

— hjtuggle (@hjtuggle) September 8, 2015

@ericmhays hey there -- could we please use this photo on @KATUNews?

— Mila Mimica (@MilaMimica1) September 8, 2015

@ericmhays Glad to see you’re OK. Can KMGH-TV in Denver use this image for all of our platforms? Please let us know.

— 7NEWS Denver Channel (@DenverChannel) September 8, 2015

@ericmhays Can we use your pic with credit on Sanook News (Thailand) ? Thanks.

— Sanook! News (@SanookNews) September 9, 2015

@ericmhays Sir, may MMB air this photo?

— Анхны Индиго© (@anhniiindigo) September 9, 2015

@ericmhays Can we use your photo? What's your #? THanks.

— Chuck (@CNNEditorChuck) September 8, 2015

@ericmhays Hi Eric I'm with ABC News. Wondering if we have permission to use this photo on all ABC platforms with courtesy? Thanks!

— Emerald Zellers (@EmeraldZellers) September 8, 2015

@ericmhays CBS in Las Vegas, may we use your picture?

— Rebecca Krshul (@rebeccanicolle) September 8, 2015

@ericmhays newsday would love to use your photo in our paper tomorrow, can you give us permission? with credit of course photo@newsday.com

— Newsday Photography (@newsdayphoto) September 9, 2015

@ericmhays can we use this photo on all of our platforms @WAOW in Wisconsin? We'll give you credit.

— John Laughrin (@jlaughrin_WAOW) September 9, 2015

@ericmhays Hi, I'm with the NY Daily News. Could we have permission to use this pic? Thanks!

— TWLevinson (@TmasReports) September 8, 2015

@ericmhays Hi Eric, can KDVR/KWGN in Denver use your picture with credit? Thank you!

— 小鬼。 (@svmmmer) September 8, 2015

What's kind of amazing is that all three guys basically sat around after all this graciously giving permission to most of the requests over and over and over and over and over again. Some of the requests were more detailed. Some asked the tweeters to get in contact to sign something. The most forward one was the AP who actually sent a "social media release form" as an attached image to a tweet:

@Bradley_Hampton Please reply if you agree with attached statement so @AP can use your photo of plane fire. Thanks. pic.twitter.com/84npYJ5XBw

— Joseph Altman (@APaltman) September 8, 2015

The Weather Channel wanted Eric to "verify" his permission:

@ericmhays may we have permission to feature your photo? Verify here: https://t.co/HKODFM0luo

— The Weather Channel (@weatherchannel) September 8, 2015

A bunch of other people noticed the nutty scrum and had fun with it, including jokingly asking for permission to retweet, to share on other social networks, to describe on the radio, to draw the picture, to look at and (my favorite) to look at and then not have nightmares about flying.

So what to make of all this? On the one hand, it seems like a fairly strong graphical representation of permission culture these days. In nearly every one of these cases, the news organizations in question would likely have extremely strong fair use protections. And it doesn't look like any of the three guys above were looking to profit from their photos. To some extent, having taken and posted the photo may have actually been more of a nuisance for them, since they all then had to spend time responding to all those requests. As filmmaker Nina Paley has discussed in the past, permission culture gets super annoying when everyone has to keep asking, and you just want them to be free to use it. But, of course, in an age where every news organization is afraid to get hit with a massive damages award in a copyright lawsuit, they're all going to ask.

That system seems fairly broken. We have at least some solutions for this. Creative Commons can handle some of it, but Twitter has no way to officially designate a CC license on a photo you've posted. That would certainly help a lot. But, overall, the whole thing just seems silly. These photos are news -- and they're initially being posted on public social media for a reason -- because those who took them wanted them to be shared and spread. It seems silly that we need such an insane level of permission gating that every news agency on the planet has to bother these guys to ask for permission.

Filed Under: airplane, copyright, fire, journalism, las vegas, news, permission, permission culture, photographs, social media, twitter