The Pervasive Data Center

The Richter Scales have reposted their "Here Comes Another Bubble" video sans the much-disputed Lane Hartwell photograph of Owen Thomas that they used in the original video without permission and without attribution. Lane has also made a statement:

As the Richter Scales stated in their blog, the video that used my image--without my permission--was viewed just under one million times on YouTube. In the end, the band opted not to work with me toward a fair resolution of the issue. I have to say that I'm very disappointed with the members of the band I negotiated with in good faith.

Lane goes on to say:

I will be sending the band an invoice for their use of my image in the first version of the video. I hope they pay it as I'll use the money to pay my lawyer and donate the rest to KidsWithCameras.org. Kids with Cameras is a nonprofit organization that teaches the art of photography to marginalized children in communities around the world. This was the offer I proposed to the Richter Scales that they chose to disregard.

Thus, it doesn't appear that, in this particular case, attribution in the original video would have put a stop to this controversy before it began. Perhaps if the band had asked in advance. I don't know. When people have requested to use my photographs in a book and, in one case, a PBS documentary I've always said yes for the price of a photo credit. But that's me. And I'm not a professional photographer with a history of having her photos and those of her friends ripped off.

Jonathan at Plagiarism Today has a great recap of the entire imbroglio. Among his lessons learned:

Attribute obsessively: If you use other people's content in any way, attribute, attribute well, and attribute graciously. It is best to follow industry standards here and to start out with the intention of doing so rather than having to go back and do it later, when it is much harder.

And:

Remain calm: When emotions get involved, as they often do with content theft and plagiarism issues, it is easy to lose sight of how important a case really is. Some are more important than they seem, others are less. This case was the latter. It is important to focus less on feelings and more on legal issues and how a case of plagiarism can potentially help or hurt you.

As I noted yesterday, my own feelings were pretty conflicted about this tempest. Lane's DMCA takedown notice that bumped the original video off YouTube seemed somewhat disproportionate to me. On the other hand, the Richter Scales largely hid behind a Fair Use copyright defense. Leaving aside whether Fair Use applied here (it's at best a borderline case); it's just bad manners and bad practice to not give attribution to all the people whose work the group used--as they have now done in the revised video. This case--and many others like it--is far more about proper societal behavior than it is about the nuances of copyright law.

As "Miss Rogue" writes in "Tragedy of the Commons: Lane Hartwell vs Richter Scales:

Since the video was viewed hundreds of thousands of times (prior to takedown), there was a missed opportunity there for the many photographers whose photos were used to make this group famous. In a post titled Credit and "Here Comes Another Bubble", the author explains:

"We did make an effort to credit those people we actively worked with on the video, as well as Billy Joel, which we listed in the comments on YouTube and on our blog. But, given the large number of sources we used, the task of assigning credit for each source seemed impractical."

He goes on to mention Lane Hartwell...without linking to her photos or her Web site. As one commenter said, "Basically if I am reading your post correct, what I hear you saying is, 'Mea Culpa, but we're lazy.'" In actuality, the time one can take to list the photo credits is a fraction of the time it would take to go out and duplicate the work of those artists to make the same presentation.

I'm unsure what good will come out of this whole incident. The problem is that when emotions run high, as they did here, people tend to spend more time fortifying their own positions rather than exploring new ones. However, I can at least hope that it's at least raised a little bit the general awareness around giving proper credit for images and other material from the Web.

I've held off posting about the whole Lane Hartwell, Richter Scales, "Here Comes Another Bubble" brouhaha. I've done so, in no small part, because my own feelings on the topic are...complicated.

On the one hand, I generally favor people sharing their creative output to the degree that it's economically feasible to do so. Our culture is richer and more interesting for the widespread tearing down of walled gardens.

Just to be clear, I'm not advocating some parodic version of free culture in which any content that can be grabbed should be grabbed and there's nothing anyone can do about it. Rather, I'm just suggesting that rigid and unrelenting copyright enforcement for even relatively minor infractions doesn't make me terribly comfortable. (I understand that, for Lane Hartwell, the Richter Scales' use of her photo was a sort of "straw that broke the camel's back" because of past use of her pictures without permission.)

On the other hand, as I've read through some of the commentary and comments in this case, I've gotten a bit irritated. This comment is fairly typical: "A photo of some grinning geek is not protected art. It's a commodity, such as a phone number or the atomic weight of carbon." In other words: eh, it's only a photograph. What's the big deal? As a sometimes photographer, I can't tell you how many times I've run into a similar attitude, even from writers who would have plenty to say if you grabbed a piece they had written and "repurposed" it.

There's also been a great deal of poorly informed commentary about Fair Use. Jason Schultz at LawGeek gives the best rundown of the legal issues in this case that I've seen. I'm not sure, based on a lot of discussions and reading about copyright law in the past, that I agree with his ultimate conclusion (that the use of the photo was probably Fair Use). In any case, as he says, it's a close call in an area of copyright law that is notoriously squishy and very dependent on the specific facts in a given instance. So, if you want to read up on the legal issues involved, I defer to Jason's post.

However, in my view, Jason's most important point has nothing to do with the law.

I'm no Internet ethicist, of course, so I can't really say what the proper ethical outcome should be for this or other similar situations. However, for me, the idea of attribution and promotion have strong appeal. They respect who the artist is and try to help them thrive in their work. I also think ethical online users should consider tithing any financial gain from the use of other people's works back to the original creator--in essence voluntarily offer to post-date royalties if the project amounts to anything profitable. Such steps would, IMO, go a long way to building a stronger online creative community rather than tearing it down or apart.

There are, of course, cases where misappropriation of posted material isn't going to be remedied by adding a photo caption or a byline, but it's often all anyone is looking for. I have no idea whether that would have been sufficient in this particular case or not, but for a lot of us, getting the proper credit is mostly what we're looking for.

Those of us who have actually read through many of the Open Source licenses and have spent a fair bit of time mulling and discussing their consequences take a lot of things for granted.

One of those things is that once a program, or anything else, is released under an Open Source license you can't just take it back. Maybe this seems obvious to you, or maybe not, but it isn't to everyone. Perhaps especially as we depart the realm of software where most developers involved with Open Source have given at least passing thought to the implications of the GPL and other such licenses.

This was brought home to me the other week in this comment on Flickr by Lane Hartwell (username "fetching"). (The context isn't especially relevant to this discussion; I suggest reading the whole heated thread if you're really interested.) "[this discussion] has brought attention to some issues and may help change things on both ends. Who knew that CC Licenses were permanent? Flickr sure doesn't tell you when you choose that option."

There are a variety of of issues raised in this case, but the one I want to focus on is that a photographer initially posted a picture on Flickr under a Creative Commons license and subsequently changed its license to the default "All rights reserved" (i.e., any use beyond that allowed by Fair Use requires the explicit permission of the photographer). There is a family of Creative Commons licenses. They vary, essentially, in whether the licensed work can be altered and whether it can be used for commercial purposes. However, for our purposes here, we can just think of all of them as "Open Source licenses."

Physical world intuition might suggest that of course the copyright holder, the owner of the property in a sense, can unshare a work anytime he or she chooses. If I give you permission to borrow my car, I can certainly give you permission on a one-time basis or can withdraw that permission at any time (subject to any contractual agreements).

But Open Source licenses are different. Once I put a photograph, a novel, or a program out in the world under an Open Source license, it's out there. I can't go "never mind" and withdraw whatever rights the license granted in the first place.

I'm not saying that the copyright owner can't change the license. In the case of works to which multiple people have contributed, there are a variety of complications and legal theories around changing licenses, but that's a separate issue. The bits or the words or the arrangement of ink droplets that have already been released into the world remain covered by the Open Source license they were originally released under.

A Mattel court case involving their CyberPatrol software and a program by Eddy Jahnsson and Matthew Skala called cphack raised the issue of whether a GPL license could be withdrawn. However, the case was such that no definitive legal conclusion came about. In addition, there were questions over whether cphack was even properly licensed under the GPL.

In any case, the widespread opinion among those who work with Open Source licenses is that what's been released into the world can't be subsequently withdrawn. As stated in this FreeBSD document:

No license can guarantee future software availability. Although a copyright holder can traditionally change the terms of a copyright at anytime, the presumption in the BSD community is that such an attempt simply causes the source to fork.

In other words, if the license is changed to an "unfree" license, you don't get the right to enjoy any downstream changes--whether enhancements to a software program or touchups to a photograph. But the specific work that's been released to the world can't be withdrawn.