Underexposed

When writing earlier this week about Adobe's sponsoring of the SQLite project, I ran into a complicated issue: is software released into the public domain also open-source software?

I have an editor who hates headlines with question marks, but I'm afraid this time it's appropriate, because even experts disagree.

For background, software or other material in the public domain simply means that it's not copyrighted. Requirements to meet the official Open Source Definition are listed by the Open Source Initiative. Two programmers, Eric Raymond and Bruce Perens, founded the OSI about 10 years ago to formalize and codify the open-source idea as it branched off the free-software movement Richard Stallman founded in the 1980s, and OSI lists 68 compliant licenses.

Richard Hipp, who founded the SQLite database project in 2000 as a public-domain project, believes it does qualify as open-source software.

"I've had a number of conversations on this topic with corporate lawyers for companies that are actively using SQLite. The consensus there seems to be that 'public domain' is valid and is a proper subset of 'open source'--except in France and Germany where the concept of 'public domain' is not recognized," he told me in an e-mail discussion prompted by the Adobe story.

But not so fast. Take the view of Mark Radcliffe, the intellectual property attorney who's general counsel to the Open Source Initiative.

When I asked Radcliffe if public domain software was open-source, he was clear: "No. Truly public domain software is no longer protected by copyright, thus it cannot have a license which would impose the terms necessary to comply with any of the open source licenses," he said.

Agreeing with him is Louis Rosen, an attorney with Rosenlaw and Einschlag who previously led OSI's legal work and who still is involved. He directed me to an older but still relevant piece he wrote about why the public domain isn't a license.

"'Public domain' will never be a license. It actually means 'No license required,'" Rosen said. "Software that is 'dedicated to the public' or 'to the public domain' is pretty safe. I just worry a bit when people or companies give software away in such an amateurish way, without understanding that licenses or covenants are far more efficient and effective."

While "public domain" isn't a license on OSI's official list of open-source licenses, Perens said it's not far off: "Software that has been formally dedicated to the public domain through some sort of written statement meets the requirements of the Open Source definition only if the source code is available. Surprisingly, 'public-domain' binary-only software exists in some odd corners of the Net."

And Raymond added, "Public-domain software qualifies...The users are guaranteed all the redistribution and reuse rights that the Open Source Definition seeks to secure by the fact that there is no owner to enforce restrictions."

Moving from the theoretical realm into the practical, though, the SQLite project appears more open-source than not. The project's source code is available without restriction, and programmers who contribute code it to it must explicitly declare their contribution is given to the public domain for perpetuity, which appears to satisfy Perens' opinions.

Update 4:15 p.m. PST: I added a comment from Guðleifsdóttir and corrected that the earlier incident involved selling eight individual photos.

An Icelandic photographer has for a second time encountered the ugly side of Internet photo sharing, finding photos she published at Yahoo's Flickr site being sold by somebody else through the iStockphoto Web site.

Rebekka Guðleifsdóttir, a professional photographer, found a picture she took of three frolicking horses on iStockphoto, a "microstock" site that licenses images for relatively low prices.

"I mean for crying out loud, out of 31 images this particular user has on his 'portfolio,' 25 of them are mine, and at least 3 are of me," she said in the caption for a screenshot of the iStockphoto page.

iStockphoto, a division of Getty Images, removed the photo and the user, named "vulcanacar."

"As soon as we get a report of something like that, we investigate right away," said iStockphoto Executive Vice President Kelly Thompson. "We have a compliance officer right here. It's important, and we have to do it." Usually the shoe is on the other foot, he added: iStockphoto sends several takedown notices per week to go after unauthorized use of iStockphoto images.

As for justice, Thompson said it would be tough to pursue this particular iStockphoto user. "He is in a country where it would be very difficult to do too much to him, which is unfortunate," Thompson said.

And on Guðleifsdóttir's side of the equation, "iStock will strive to make the situation right...We'll have to talk with Rebekka and see what needs to be done," potentially including paying her royalties.

iStockphoto did indeed get in touch, Guðleifsdóttir said. "I have been contacted by the CEO of iStockphoto, and the matter will be handled in an appropriate way, I'm sure," Guðleifsdóttir said, though she declined to comment on specifics.

This is the second time Guðleifsdóttir has found images she posted on Flickr for sale elsewhere. In 2007, she discovered a company selling eight landscape pictures. She complained about the incident on Flickr only to have her image and the discussion below it deleted because, Flickr told her, "Flickr is not a venue for you to harass, abuse, impersonate, or intimidate others."

Flickr co-founder Stewart Butterfield later issued an apology; Guðleifsdóttir decided to restrict her Flickr uploads to a maximum width of 800 pixels.

Thompson said it's "very, very, very rare" for iStockphoto to sell photos that have been uploaded without the copyright holder's permission, but given that the site has "almost 3 million images" available, it's also inevitable.

"We usually catch these way before the images are even sold," not the few months that happened in this case, Thompson said. "The community is pretty amazing at finding things like this. And our inspectors are usually pretty good at it too."

(Via Thomas Hawk)

• Picasa Web Albums Uploader for BlackBerry--Upload to Picasa Web Albums from a BlackBerry smartphone. Bonus: automatic geotagging if your BlackBerry supports it.
• Jeffrey Friedl offers "Piglets": Plug-ins for Lightroom Plug-ins--This time, Friedl has built Tim Armes' LR/Mogrify export plug-in so it can be used as a subcomponent of Friedl's Flickr/Zenfolio/SmugMug/Picasa export plug-in. First time I've seen the word "fourth-party" used in a while. World's longest dialog box too.
• ImageReporter: Extract data from Lightroom database--Analysis tool for extracting information from the metadata stored in Lightroom's catalog. It's a free download.
• 5,000 Flickr photos lost to a phishing scam--This fellow lost his Flickr identity to a phishing scam that meant all his photos, comments, and online conversations were deleted. "How does one download all the metadata? Flickr should have an export feature that creates a .flk file on your PC." I don't think it's as clear as that.
• BreezeBrowser Pro supports 1Ds Mark III, D3, D300, E-3, A700--Raw files from the latest SLRs are now supported. That includes Canon's 1Ds Mark III, Nikon's D3 and D300, Olympus' E-3, and Sony's Alpha A700.
• CoastalOpt 60mm UV-VIS-IR 1:4 Apo Macro lens--Transmits ultraviolet and near-infrared light with no chromatic aberration. "The 60mm UV-VIS-IR 1:4 Apo Macro lens achieves unprecedented correction...by combining fluorite and quartz with elements made from carefully selected high-transmission glasses."
• State of the Art: Marilyn Wars:The Empire Strikes Back--Who's allowed to sell images of Marilyn Monroe? Copyright vs. rights of publicity.
• Thomas Hawk: Copyright Schmopyright--Provocative words from a compulsive (and good, in my opinion) photographer. "Fair use? Who the hell cares. The images need to be captured. And they need to be presented to the world in new and exciting and fun ways."
• Paleo-Future: Bearded Men of the 21st Century (1939)--Dang, and here I just shaved my beard off. I guess I just am too cowed by authority and missed the revolt.
• Rusty Russell gripes about git--A Linux kernel programmer ascends the learning curve of Git, the source code management system Linus Torvalds wrote to manage the kernel programming project.
• Call for community testers for Intel driver--Intel wants outside help testing its open-source graphics drivers. The "Intel team is not able to cover all hardware configurations, hence not able to reproduce or verify some bugs." Sign up at Intellinuxgraphics.org
• Havoc Pennington leaving Red Hat--A longtime coder is departing, but he's not saying yet what his new gig is.
• Intel 965 chipset blacklisted in Ubuntu 8.4 Hardy Heron--Programmers couldn't get good 3D support out of the new Intel graphics chipset.
• Ohloh Goes Open Source--An open-source command line tool to identify the language a program is written in and count how many lines it's made of. It's under the General Public License version 2 (GPLv2).

The good news is the Library of Congress is putting 3,000 images up at Flickr. The bad news is they're relying on us to tag them all.

In a pilot project announced Wednesday, the government archive put the public-domain, copyright-free photos on the Library of Congress Flickr page. That's just a small fraction of 14 million photos and other visual materials at the Library of Congress, according to the archive's blog, but hey, it's a pilot project.

If you're like me, you recognize the value of tagged photos when you're looking for a particular shot but can't remember when or where you took it, or when you want to sift photos to zero in only those with something like "birthday" and "grandma." But also if you're like me, you probably tag your photos only intermittently.

So it's a safe bet that the Library of Congress photos won't immediately sport a huge range of highly descriptive tags. But I'm inclined to see the glass as well over half full: having the photos easily available is great, and I can't imagine the government would pay on its own to fund some dedicated tagging effort.

• Nikon still leads Canon for SLR market in Japan - It's not the whole world, but Japan is a very important market. Pentax is a distant third.
• Novel GPS widget geotags photos on your flash card - This is a great idea: you insert your camera's flash card into this GPS device and it handles the geotagging from there. A much simpler work flow. But does it work with raw formats?
• Wacky Microsoft Popfly live-action demo - Putting something of a human face on an obscure coding exercise.
• Dan Heller's Photography Business Blog: Gaming the Creative Commons for Profit - Upshot of a three-part series: "The Creative Commons just doesn't fit in the photo world...no teeth for well-intentioned photographers...sharp and dangerous teeth for those who want to abuse the system and entrap anyone into paying big settlements."
• Ubuntu Hardy Heron Alpha 3 | Ubuntu - Details of Alpha 3 of Ubuntu's Hardy Heron release, due to ship in final form in April 2008.
• Flickr: The Photophlow emotes pool - For setting graphical emotes during Photophlow chats
• Flickr Set Manager - A tool to automatically create sets based on parameters such as tags.
• Economist uses CC-licensed photos on its Web site - This blog quotes a photog unhappy to find the Economist used his Creative Commons-licensed photo on its Web site. Sure sounds like commercial use to me, which the photog had precluded.
• 30-minute Olympus E-3 Promotional Video - A loooong Olympus promotional video with detailed descriptions of the E-3's abilities. Some nice illustrations of why a swiveling LCD is useful. Painful background music.
• Penguinistas hack Android onto real hardware | LinuxDevices.com - Programmers get Android working on Sharp Zaurus and various other devices.

• BBC NEWS | Egypt 'to copyright antiquities' including pyramids - Looks like people trying to sell pictures of the pyramids or sphinx will have to reckon with the Egyptian government.
• The Generational divide in copyright morality - The New York Times - David Pogue on the latest generation's opinion about copyright.
• Technology in 2008 | The Economist predicts 3 big trends for 2008 - I'm skeptical Linux on the desktop will catch on too much, and Linux already won long before the SCO Group's legal attack fell apart, and Ubuntu doesn't deserve quite that much credit. Otherwise interesting reading.
• Mark Radcliffe: 2007 top ten free and open source legal issues - A good recap of the intersection of open-source issues and the legal realm by a respected attorney in the area.
• Adobe's Outlook: A pretty picture - Barron's Online - Barron's stands by its bullish assessment of Adobe stock.
• HP: Snapfish cuts 4x6 print prices to 9 cents - I've been impressed how much prices have dropped in this industry. It's not over yet.
• Sony releases firmware version 3 for the A700 digital SLR - A couple bug fixes, one with a situation that could cause the camera to lock up and one with camera settings staying put when they shouldn't.
• ActivePerl 5.10 - Online Docs : ActivePerl 5.10 change log - New features in ActiveState's version of Perl 5.10
• Nikon videos for Coolpix S51, S51c - I like the idea of instructional videos from camera makers. Better have broadband, though: 250MB for the high-res version.
• The Online Photographer: Fujifilm Digicam appreciation - Apparently the now-discontinued Fujifilm F30 and F31 compact cameras are selling for well over their price at introduction and over price of the company's replacement. Why? Some people realize lower noise is better than gratuitous megapixels.
• Olympus SP-560UZ Review: Digital photography review - So-so. "You could use this camera for years without ever finding all the (often fairly pointless) things it can do, so numerous and deeply buried in menus are they." Slow raw, but better than nothing. I wasn't wowed by the SP-550UZ before it.
• Ricoh GR Digital II firmware v1.12: Digital photography review - Some bug fixes and tweaks.

It wasn't Lane Hartwell's first heated exchange over a photo copyright issue, but a tussle involving a witty YouTube video probably was the one with the highest profile for the professional photographer.

Last week, a not-for-profit San Francisco singing group called the Richter Scales posted a Web 2.0-mocking video, Here Comes Another Bubble, set to the tune of Billy Joel's We Didn't Start the Fire. One of the many photos that flashed by in the video was one Hartwell took of Valleywag's Owen Thomas.

The problem: Although Hartwell had posted the image publicly at her Flickr account, she had kept copyright, labeling it as "all rights reserved," and the Richter Scales didn't license its use. When Hartwell found out about it, she took action, and YouTube pulled the video down. Hartwell sought payment for the photo's use, but Tuesday night, the Richter Scales posted an updated version without the Thomas photo. Hartwell now says she'll send an invoice to the band for the times it was viewed.

Hartwell, who turned pro three years ago and now shoots for clients including San Francisco magazine, Wired News, and Valleywag, took fairly aggressive measures, stepping on some toes on the way. But in her view as a professional photographer, protecting copyright is paramount, particularly in a day and age when digital photography and the Internet make copying photos very easy.

Here comes another trouble: even after the Richter Scales posted a list of photo credits with the updated video, another photographer, Ramona Rosales, apparently isn't happy. She took the photo of TechCrunch chief Michael Arrington that appeared in Newsweek that's also in the video.

One issue at the heart of the matter is the doctrine of "fair use," which permits free use of copyrighted materials for purposes including commentary, criticism, news, and research. Opinions differ on whether the Richter Scales' use qualifies--fellow CNET blogger Gordon Haff has a reasonable wrap-up--but there's no question that digital photography and the Internet has focused more attention on the gray area between obviously permissible and obviously forbidden uses.

Indeed, I first got in touch with Hartwell after my employer, CNET News.com, became one of her earlier targets. We had published a photo of Yahoo CEO Jerry Yang taken by Hartwell's fellow photographer, Mitchell Aidelbaum. CNET had obtained permission directly to use the photo earlier, when it also had been available under a Creative Commons license that permitted others to use it as long as credit was included. But we used the image again later in a small thumbnail size without giving credit.

(I asked the editor in charge of the situation what our current policy is, and he told me News.com avoids using photos licensed under Creative Commons in thumbnail form. Some of the debate is recorded here at Digg, but Hartwell has since made private the Flickr photo where the debate took place.)

After the Richter Scales fracas, I thought it would be interesting to hear from someone who has chosen to draw a line in the sand. Here's an edited version of our chat.

CNET News.com: You seem to have a passion for the issue of copyright-infringing copying of photos. Has this become something of a crusade for you beyond just protecting your own rights?
My only intention going into this was to resolve the issue regarding the use of my image in the video. It's what I do every time someone uses my imagery without permission. I never expected the response it's generated, but I think the discussion is healthy and necessary.

How did you find your Owen Thomas photo was in the Richter Scales' video?
A friend told me. It's usually friends that tip me off when they stumble across my images on Web sites and blogs.

How did you feel when you saw the image?
While I thought the video was funny, my first thought about seeing my image was, "How come I was not asked for permission?" I also recognized another photographer's work in there. I can't say I was surprised; it was more a feeling of "Here we go again."

And how did you approach them about the issue?
I wrote them an e-mail and asked them to explain what my all-rights-reserved image was doing in their video. I explained that I am a professional, that the image is copyrighted, and that I license my work. I told him I had not been contacted to use the image.

What kind of response did you get from the Richter Scales? Did they or you contact YouTube or other sites where the video was posted?
I'd really rather not go into all the details of the negotiations, but I did file the takedown notice on the advice of my lawyer when it became apparent that the members of the band decided to not take any action regarding my requests related to the use of my photograph.

Are you concerned that your forceful stance might cause some kind of backlash?
I was concerned at first, but my friends, my clients, and total strangers have thanked me for standing up for what I believe is right.

Do think you might have made more progress in the long run, both with your career or in copyright education, with a more forgiving approach to the Richter Scales? You seem to have made a vocal opponent rather than a potential ally in your cause.
I had been in e-mail communication with three different members of the band for three days before making the decision to send the takedown notice, after consulting my lawyer. After three days of exchanges, one of the band members announced they wanted to take several days for a "cooling-off period" and that we could resume negotiations then. That was unacceptable to me. The video was still online and they'd made none of the changes I'd requested. I really wasn't left with much of a choice.

On the one hand, with digital photography and the Internet, it's easier for a photographer to publish on the Net and reach a broad audience. On the other, the same technology makes copying easier and more common. Would you rather be a photographer now or in the pre-Internet, pre-digital era?
I love digital! I honestly think there are pluses and minuses to any advance in technology and I'd like to believe I approach things looking for benefits while knowing I'll probably have to deal with some of the downsides. Shooting digitally allows me to turn around client projects in hours instead of days. It's made my work visible to more people than previously possible. The downside is that I've had to deal with people who feel they can use my work without getting permission. One the whole, it's great. But dealing with infringers still takes up more time that I wish it did.

On about how many occasions have you had to deal with copyright infringement issues with your photos?
It's been happening a lot lately. In the past two weeks I have had five separate cases of it. I would say generally a few times a month. And mind you, these are ones that I have found out about; I'm sure there are far more. There are currently three sites using my work right now, uncredited and unauthorized. They all have advertising on the site. I will be sending them e-mails soon.

How do you think Flickr and the Web in general affected photo-copying issues?
I've spoken with countless photographers who express frustration that many people feel that anything found on the Internet should be freely available for their use. I quit my day job to be a full-time photographer. It's how I pay my bills. I can imagine how these people would feel if they were expected to work for free because other people were taking the things they made without paying for them. I've donated work to charitable organizations, and I've traded services for my photography. I can't, however, just stand by and let anyone who wants to use my work without being fairly compensated for it.

Do you think the Creative Commons licenses are a good idea?
In theory, I think it's great, but in practice, it's got a ways to go. If people don't respect something marked all rights reserved, and we are having this kind of confusion over a copyrighted image, are people going to respect the terms of CC licensing? Although I personally don't employ CC, I know many people who use CC licenses for their work and have been ripped off anyhow, as in those who take don't bother to follow the terms of the license, don't credit or link back. I also think it's become a way for large, for-profit corporations to find and use free content instead of hiring professionals. Was CC designed for Virgin to make advertising with Flickr images, or was it designed for the average person to use an image in a presentation or in some creative way without having to pay a small fortune to do so? Lawrence Lessig himself says: "A culture without property, or in which creators can't get paid, is anarchy, not freedom." I don't think a free-for-all is the intention of CC.

What do you think of technical measures to address the issue--watermarking, for example?
I think watermarks are a great idea, but it does take some time to do. Sites like Flickr need to employ an automatic watermarking system. The site I am moving my work to, Photoshelter, allows me to set that all up in advance and I never have to deal with it again. It's applied to every photo.

How much did you bill the Richter Scales, if I might ask?
They haven't received the invoice yet. I'd prefer to wait till after it arrives. I can tell you that I used a professional computer program called Fotoquote and calculated the invoice based on usage, the market where the photograph is to be used and various other factors, which are the typical parameters photographers use when pricing an image.

Earlier, you said on your blog that when you turned pro, you decided to follow the advice of another photographer who said never to shoot anything again for free--even friends' parties. Is that a little extreme, or is it really that serious a slippery slope?
Her point was this is my only source of income now. That my friends and community would be the first people to understand that and want me to succeed, and many friends have since commissioned me to do work. The bottom line is, I have to make sure I am able to make a living. It's called survival. Having said that, I have always been, and will continue to be, generous with my photography. But it's my choice to make...I should not be forced into it.

What have you learned from this particular episode? Is there a moral to this story for you, for the Richter Scales, or for the public at large?
I certainly can't speak for the band. They've made their choices and will have to live with them. I think if I hadn't raised the issue, sooner or later another photographer would have. I'm disappointed with some of the personal insults I've received from people who don't know me, but they've been more than offset by the support I've gotten from the photographic and tech communities. This issue isn't going to go away. I think this is just the start of the discussion. I wish I could tell you there's some great moral to this story, but really, I'm just going to keep doing what I'm doing and part of that is protecting the use of my imagery online.

• Uh-oh--More photo copyright concerns for the Richter Scales - Some photographers weigh in with concerns about the Richter Scales' video.
• YouTube - Here Comes Another Bubble v1.1 - The Richter Scales - The new version with Lane Hartwell's photo of Owen Thomas excised and replaced by Kara Swisher.
• The Richter Scales discuss copyright and v1.1 of their Here Comes Another Bubble video - The singing group bypassed Lane Hartwell's copyright by substituting another photo.
• Lane Hartwell » My statement regarding the new version of the Richter Scales video - She'll be sending the Richter Scales an invoice.
• Mozilla Developer News » Firefox 3 Beta 2 now available for download - The second beta of Firefox 3. Brings changes to security, download manager, page rendering speed, and other stuff.
• Sigma's 18-200mm lens is now available for Nikon SLRs, too. - The 18-200mm F3.5-6.3 DC for Nikon SLRs. Vignetting on the D3 camera body, though, since the lens is geared for small-frame cameras.
• onOne Software - Press - onOne Software Announces Compatibility with Mac OS X Leopard Operating System - onOne (Genuine Fractals, Mask Pro, etc.) catches up to Mac OS X 10.5 aka Leopard.
• Virtualization Benchmarking on a Mac - VMware Fusion vs. Boot Camp vs. Parallels performance tests.
• Digium passes 1 million download milestone - The Asterisk VOIP software isn't the kind of thing most folks would run, but it looks to me to be a pretty popular project. One million downloads is impressive.

Update: I updated this posting to correct my misunderstanding of an ambiguous point in the news release--the ar5k-based OpenBSD driver isn't proprietary.

The Software Freedom Law Center, which provides free legal advice to free and open-source software projects, has declared an open-source project to support Atheros Communications wireless network devices to be free of copyright infringement.

The group--which employs notable attorney and former Free Software Foundation counsel Eben Moglen--performed a confidential comparison of the OpenHAL project and the Atheros HAL software whose functions it attempts to duplicate, the center said Tuesday. The audit was a response to allegations of HAL copyright infringement, the center said.

"After performing the audit, SFLC concluded that OpenHAL does not infringe copyrights held by Atheros. As a result, OpenHAL development can now continue safely, unencumbered by legal uncertainty so long as the OpenHAL developers continue their work in isolation from Atheros' proprietary code," the center said in a statement.

OpenHAL was based initially on an open-source project called ar5k that was used in an Atheros driver for the the open-source OpenBSD variant of Unix, the center said. However, Atheros cards aren't supported in Linux with an open-source driver.

"We believe that this outcome will clear the way for eventual acceptance of a new wireless driver into the Linux kernel," said John Linville, who maintains wireless networking software in the Linux kernel, in the center's statement.

But this isn't the first time the center got involved in trying to clear the software. In November, Linville said in a 2006 mailing list posting that the center already made inquiries about the source of the ar5k software.

"The responses received provide a reasonable basis for SFLC to believe that the OpenBSD developers who worked on ar5k did not misappropriate code, and that the ar5k implementation is OpenBSD's original copyrighted work," Linville said in the message. "This announcement should serve to remove the cloud which has prevented progress towards an in-kernel driver for Atheros hardware," he added, overoptimistically as it turned out.