Politics and Law

Flickr has adopted a less severe way of handling copyright infringement claims after a small firestorm of controversy erupted about a photograph of President Barack Obama modified to look like The Dark Knight's rendition of the Joker comic-book villain.

Previously, certain copyright infringement complaints were met with the removal of an image, and if the complaint was overruled, the Flickr member who posted the image was allowed to repost it. After the Joker Obama case, Flickr decided to merely replace the image in question with a message, a move that means the discussion below the image is preserved and that eases republication if the removal is overturned.

The Obama Joker image still is widespread on Flickr.

(Credit: Screenshot by Stephen Shankland/CNET)

The move illustrates the complexities that have arisen in the digital era where photos can be transferred and modified with ease. Copyright law is a much older concept than the Internet, though it's been renovated a bit relatively recently with the Digital Millennium Copyright Act.

Under the DMCA, a party holding copyright to a photo or other work can request that a Web site remove content posted by a third party that infringes that copyright; the Web site can avoid liability in the matter if it takes down the work in question when it receives the notice of infringement. The DMCA also includes a provision to let the third party that published the content challenge the claim.

The Joker Obama image was swept up in this DMCA process in August. The resulting discussion led the Yahoo photo-sharing site to change its policy Tuesday:

"Upon receipt of a complete NOI (notice of infringement), the U.S. Copyright Team will replace the image with a new static image that bears the following copy: 'This image has been removed due to a claim of copyright infringement,'" said Heather Champ, Flickr's director of community, in a comment.

The change was the suggestion of a Flickr user, The Searcher, and Flickr said it liked the idea.

The Obama Joker image was posted on the Flickr site of Firas Alkhateeb, who told the Los Angeles Times he created the Obama Joker image using Photoshop and a Time Magazine cover photograph. The Obama Joker image spread farther after somebody else created a poster with the image and the word "socialism."

Flickr, though, removed the image after it received a DMCA notice of infringement, Champ said in a forum posting.

Among those to criticize the move were Thomas Hawk, an outspoken critic of what he sees as Flickr censorship and the chief executive of Flickr rival Zooomr. He argued in a blog post that the image qualified as a parody under the fair-use provision of copyright law that permits some uses of copyright material.

"Whatever you may or may not think about this image and its appropriateness, the image would absolutely and unequivocally be considered parody and parody has always been one of the most effective defenses against any copyright complaint," Hawk wrote.

Added TechCrunch's Mike Arrington, "In the past Flickr has deleted accounts of users who are critical of President Obama, but as far as I know nothing like this was done to users who were critical of Bush. It's clear that the Flickr team wanted to take this image down."

However, image copying and modification permissions can vary according to context. While creating a parody from an image might be permitted under fair use, copying that parody might not be.

And there's evidence some original rights holders aren't involved. Photo District News reported that Time and DC Comics both said they hadn't send Yahoo the DMCA notice, and that the office of the original Obama photographer, Platon, wasn't even aware of the controversy.

Hawk also quoted the DMCA notice Flickr sent Alkhateeb letter that identified the infringement complainant to be Edward Przydzia.

Yahoo hasn't detailed its rationale for removing the image, saying its privacy policy forbids it from discussing particulars of the situation. However, it did indicate politics were not involved.

"There appears to be a whole lot of makey uppey going in the news and blogosphere about this event," Champ said in a forum post. "We very much value freedom of speech and creativity...I'm not sure how complying with the law has led to the idea that we (the Flickr team) have a particular political agenda."

MobileRead.com posted a letter this week that Amazon.com apparently sent regarding alleged copyright violations. This is an excerpt.

When President Clinton signed the Digital Millennium Copyright Act into law 11 years ago, he predicted it will "protect from digital piracy the copyright industries that comprise the leading export of the United States."

The DMCA turned out to be much broader than that. This week, an e-book Web site said Amazon.com invoked the 1998 law to prevent books from some non-Amazon sources from working on its Kindle reader.

Amazon sent a legal notice to MobileRead.com complaining that information relating to a computer utility written in the Python programming language "constitutes a violation" of the DMCA, according to a copy of the warning letter that the site posted. MobileRead.com is an e-book news and community site.

MobileRead.com forum moderator Alexander Turcic said in a post on Thursday that although he did not believe the program violated the law, the site would "voluntarily follow their request and remove links and detailed instructions related to it." Turcic said that, contrary to Amazon's claim, his site never "hosted" the software.

Amazon did not respond to a request for comment on Friday.

The author of the software in question, titled Kindlepid.py, is listed as Igor Skochinsky, a hardware hacker who performed a remarkable analysis of the Kindle and described in December 2007 how he was able to gain access to the device.

It's unclear why Amazon waited so long to respond with a legal threat, and why the company targeted MobileRead.com: Skochinsky's original blog post about Kindlepid.py is dated December 2007, and the copy of the Kindlepid.py software hosted at the Googlepages.com Web-page posting site is still available for download at http://skochinsky.googlepages.com/azw-0.2.zip.

Kindlepid.py and a related piece of accompanying Python code don't allow piracy. Rather, they accomplish something akin to the opposite: they allow legally purchased books from other e-book stores to be used on the Kindle. (Amazon owns MobiPocket, one of those stores. Another would be OverDrive.com, which counts schools and libraries as customers.)

In theory, at least, this could threaten Amazon's business model, which provides wireless connectivity through Sprint's EV-DO cellular data network and covers the cost through items purchased from the Amazon Kindle Store. Kindle customers can also e-mail themselves documents to be converted at 10 cents per conversion.

A copy of a MobileRead.com wiki page--now empty--saved in Google's cache says Kindlepid.py allows you to "obtain books from sites that use DRM (Digital Rights Management - encryption) on their books for specific devices. This includes book sellers and public libraries." It provides instructions on how to install and use the software.

MobileRead.com readers with Kindles were not pleased with Amazon. "What this script does is make the Kindle more useful," wrote one reader. "With Amazon using the DMCA to get rid of this, they are alienating their customers and causing prospective customers to purchase a different device."

And the Kindlefix.py code is already being mirrored, including in a post on Slashdot.org.

Section 1201 of the DMCA says: "No person shall... offer to the public, provide, or otherwise traffic in any technology... is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title."

One exception to the DMCA's general rule, however, comes a few paragraphs later. It says circumvention is permissible for "interoperability" of computer programs, with interoperability defined as the "ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged."

If Amazon were to press its case against Kindlefix.py, another legal claim could involve reverse engineering, which is prohibited by the Kindle terms of use. They say users may not "circumvent any of the functions or protections of the Device or Software or any mechanisms operatively linked to the Software, including, but not limited to, augmenting or substituting any digital rights management functionality of the Device or Software."

This isn't the only legal spat that's arisen over the Kindle 2. Last month, the Authors Guild claimed that the mechanical text-to-speech converter was a violation of copyright law.

(Credit: SHARK)

A rodeo association has agreed to pay $25,000 to an animal welfare group to settle a lawsuit over the improper removal of videos from YouTube that showed roped calves being dragged off to die and tasers being used on tame horses to get them to buck.

In December 2007, YouTube removed dozens of rodeo videos after getting takedown notices from the Colorado-based Professional Rodeo Cowboys Association that claimed copyright violations under the Digital Millennium Copyright Act (DMCA).

The group that posted them, Showing Animals Respect and Kindness (SHARK), with the help of the Electronic Frontier Foundation, sued the rodeo group last summer. The group sued for misrepresentation, alleging that the videos could not have infringed any copyright because the rodeos themselves weren't copyrightable, the EFF said.

The EFF announced on Thursday that the two sides had settled the case. In addition to the payment, the agreement requires the rodeo group to run any future copyright claims by its own general counsel and by SHARK before notices are sent to YouTube. It also bars the group from selectively enforcing a "no videotaping" provision against SHARK.

The settlement, which is available on the EFF Web site (PDF), is part of the EFF's No Downtime for Free Speech Campaign, which fights misuse of the DMCA.

With just two weeks left until the presidential elections, a coalition of public interest groups is calling on both broadcast networks and YouTube to modify their approaches to copyright infringement claims that involve political content.

On Monday, groups including the Electronic Frontier Foundation, the American Civil Liberties Union, and American University's Center for Social Media, sent an open letter (PDF) to CBS, the Christian Broadcasting Network (CBN), Fox, and NBC, asking them to stop sending Digital Millenium Copyright Act takedown notices to YouTube over short clips of news footage used in election-related videos. (Disclaimer: CNET is published by CBS Networks, home of CBS News.)

"Not only are such notices contrary to the law, but they also threaten to silence an exciting new source of political expression," the letter says. "This new form of expression, often built on quoting and remixing from news and other mainstream media sources, does not threaten the copyright interests of your organizations."

The letter notes that the networks have sent takedown notices to YouTube targeting videos made by both the Republican and Democratic presidential campaigns. It cites complaints from Republican John McCain's presidential campaign that its videos were removed from YouTube on unfounded copyright infringement claims.

"We understand your organizations' desire to be seen as neutral, but given the extremely short nature of the news clips at issue and the context in which these clips appear, it is unlikely that anyone would believe that the use of the clips by a candidate means that your organizations are somehow supporting that candidate," Monday's letter says.

YouTube responded to the McCain campaign's complaints last week, saying it could not give the campaigns special treatment by conducting a "full legal review" of political videos subject to takedown notices before removing them.

Yet in a second letter (PDF) sent Monday, the coalition of public interest groups also asks YouTube to more carefully review videos in question. The letter says YouTube staff should review counter-notices, and YouTube should immediately re-post the video in question if it clearly falls under the category of fair use, rather than wait 10 to 14 days.

"The relatively small number of counter-notices filed by users should make this a manageable task for YouTube personnel," the letter says.

The letter also suggests that once a user has submitted a valid counter-notice, any takedown notices issued against his or her account should be reviewed by YouTube staff before acted upon.

"We understand that whether a particular video constitutes a fair use can be a difficult determination to make," the letter says. "Nevertheless, there are clear cases, particularly where short news clips are used in the course of a political video intended as commentary or criticism."