6 ms·

Art can't be stolen by NFTs because NFTs don't contain content, only links to content. When you buy an NFT, you're buying some metadata containing a URL of som

Art can't be stolen by NFTs because NFTs don't contain content, only links to content. When you buy an NFT, you're buying some metadata containing a URL of some art -- a pointer. Artists that are upset about hyperlinks to copyrighted images should go after the hosting servers with DMCA claims or the equivalent. Consider: Is an NFT that points to another NFT stolen?

verdverm 5y ago
Consider, is OpenSea displaying copyrighted images, what is their legal liability?
- politician 5y ago
  Forget OpenSea. If Wikipedia willfully displays unlicensed images taken from Getty Images, Getty Images could get them taken down using existing legal tools.
  - verdverm 5y ago
    Also consider copyright holders are free to choose who they enforce their rights against. Same applies to licenses.
noodle 5y ago
Isn't the NFT selling the premise that the owner of the NFT owns the art being pointed to? Maybe it isn't theft but it does seem to be fraud? Or if the argument is that NFTs don't convey some sort of ownership over the thing it points to, what's even the point of NFTs?
- politician 5y ago
  No, what's being sold is ownership of a unique set of metadata stored in a blockchain. There's nothing connecting a NFT to an underlying asset. It's like if I gave you the opportunity to buy the words "The Empire State Building" written on a napkin with a promise to never write those words on any other napkin. You might buy that if, say, I was famous. That's an NFT. You're not the new owner of the Empire State building.
  - edmundsauto 5y ago
    I admit I don't understand NFTs much, but would a reasonable analogy be a photograph? I could take a picture of the Empire State Building, sell you the rights to the picture? Except, with an NFT, it's a blockchain identified bit of numbers rather than a picture?
    - politician 5y ago
      Yes, that's a reasonable analogy. Now extend it with some crypto-magic that makes duplicating that picture impossible, that's an NFT.
      - noodle 5y ago
        But the complaint is that people are selling the rights to pictures via NFTs that they don't have the rights to sell in the first place, isn't it? So the analogy would be that some third party took a copy of your photograph of the building and sold the rights to it despite them not having the ability to do so?
        politician 5y ago
        No, the complaint is that OpenSea is distributing images that were uploaded by users that lack licenses to do so and that OpenSea does not have a compliant DMCA process. Therefore it is being asserted that OpenSea cannot claim a 512(c) exemption from liability. [1] https://crsreports.congress.gov/product/pdf/IF/IF11478 https://crsreports.congress.gov/product/pdf/IF/IF11478 In other words, the complaint is that when you curl e.g. https://images.opensea.com/some-pixel-artwork https://images.opensea.com/some-pixel-artwork it returns a PNG of the pixel art without adequate license metadata, and there's no one to talk to that will fix the issue.
        basch 5y ago
        Dont confuse selling a picture for selling the rights to a picture. An NFT could include the rights to the actual art itself, but most likely youre buying a sole reproduction. Similar to how going and buying a copy of a photograph at the store doesnt necessarily give you the explicit right to reproduce it for profit. Copyright is different from possession. NFTs are possession, unless they spell out that the purchase also transfers the copyright.
- chizhik-pyzhik 5y ago
  > Isn't the NFT selling the premise that the owner of the NFT owns the art being pointed to? Correct. The victims here are both the buyer (who bought thinking they purchased from the creator) and the creator (who would have earned that revenue if they created the NFT). The solution is really just better moderation and UX- OpenSea needs to make it easy to determine whether the creator is actually the creator, or just someone who re-uploaded the content.
arcticbull 5y ago
Sure if we pretend really hard. The thing is, NFT folks can't have it both ways. The advocates say it's not a URL - it's the art you're buying, that it's going to support artists, that everyone can share in the rewards. As soon as something goes wrong, well it's actually a URL so take it up with Google, a centralized service, and file a DMCA take-down. No matter what these grifters are taking advantage of the artist and the buyer. I'm loving this web3 thing.
- anonymousab 5y ago
  > The advocates say it's not a URL - it's the art you're buying I've found that most NFT advocates will agree that you are only paying for a receipt on the blockchain that some central service like OpenSeas equates to you 'owning' a piece of art, and maybe the original artist too, but only conceptually and not legally (services that include signing over copyright notwithstanding). That this is mostly a status symbol for the wealthy to dump cash into, like digital diamonds, is also a not uncommon view - but the difference is that they think that is a valuable end unto itself, and people like myself don't.
- politician 5y ago
  I mean, at some point isn't it reasonable to expect people to do some basic due diligence before dropping 10k on some metadata. If they don't, who's fault is that really? Read the spec. Jeez (not aimed at you, just generalized exasperation). https://ethereum.org/en/developers/docs/standards/tokens/erc-721 https://ethereum.org/en/developers/docs/standards/tokens/erc...
  - Gigachad 5y ago
    If people did due diligence, there would be no such thing as an NFT.
    - politician 5y ago
      I wouldn't go that far. I think there's legitimate value in a digital product that is one-of-a-kind for which the creator is cryptographically prevented from duplicating in an undetectable way. I think there's also value in the idea of some attributes of the instance not being settled or known until the initial transaction completes. This early phase where NFTs contain URLs to images hosted off-chain is just a situation where an example used to explain the concept ("it's like art") blew up in a completely hilarious way.
gpm 5y ago
Art can't be stolen by NFTs, it can be stolen (for a slightly loose definition of steal, including copyright infringement and wire fraud) by people selling NFTs though. Openseas looks to be serving up the images, and according to that thread they aren't respecting DMCA requests ("apparently the only way to get them removed is by writing individual emails for each listing"), that's illegal, intentionally doing that is criminal. The people uploading the art without a license are breaking the law regardless of whether or not the site respects the DMCA. The people fraudulently representing themselves as the original artist when they aren't are breaking the law.
- politician 5y ago
  That's a good clarification. My point is that there's nothing special happening here legally just because cryptocurrency is involved. It's illegal to distribute copyrighted content without appropriate licenses.
  - gpm 5y ago
    I don't believe anyone ever said it was illegal because cryptocurrency is involved... Indeed this thread started with the comment "[...] Putting utter ridiculousness of NFTs aside [...] I'd also emphasize the fraud part more here, it's not just copyright infringement, it's lying about authorship for financial gain, that's a separate (and in my mind much more serious) crime.
anonymousab 5y ago
They're hosting copyrighted material (images, perhaps just cached?) without permission. They had a takedown process that they've now eschewed in favor of making artists give up more personal details to get something taken down. The interesting problem here is that they have started giving artists and their takedown requests the runaround. Like they're running out the clock and trying to placate the bots for as long as possible without taking things down. The intent and actions here is what may get them in trouble. Artists can go to their host directly (Google) but that doesn't mean that OpenSeas isn't liable the same way torrent sites might be for their users' content.
lewispollard 5y ago
I work with a pixel artist whose work was sold on OpenSea. The "owners" of the NFTs certainly didn't seem to understand the nuances you've commented in this thread with - they (and all their buddies) straight up harassed him on every online channel they could find him demanding to talk about "ownership" or otherwise spamming obnoxious and obscene things. So it's not just potential IP theft and fraud, it's also harassment from an army of crypto cultists who don't even understand what it is they're rallying around.
- politician 5y ago
  I agree that people can be both stupid and cruel.
atom_arranger 5y ago
Torrent websites tried to use the same defense and it didn’t work, unfortunately IMO. Personally I think information should be free.
- aspenmayer 5y ago
  What do you mean? Torrents are legal in many jurisdictions around the world. How do you feel about DMCA being used to takedown NFTs via Google and Cloudflare, in some cases against the original artist?
  - atom_arranger 5y ago
    I mean in many countries torrent search/website operators were prosecuted despite only hosting links/metadata. e.g. People involved with The Pirate Bay. I feel bad about DMCA being used at all. I don’t want anyone prosecuted for sharing information. I’m just mentioning that the “it’s just links” defense might not hold up, based on prior events.
munk-a 5y ago
Consider for a moment that I am comic book artist and have made a wonderful popular series. I consider myself a purist so I've decided to decline offers for merchandising and make plenty of cash just off of comic sales alone. You figure people would really want a t-shirt with my character on it and so you start printing some and selling them - it even turns into an overnight success and suddenly my comic sales are up because memes have caused the character to go mainstream. You've used my creation without my license in a way that certainly violates current law - just because I had eschewed merchandising myself and just because your impact on my sales was positive and not negative - doesn't negate that you took my creative work and profited off of it without any meaningful fair use exception (like making a transformative work). The NFT you could create to my photo has value because it's to my photo - additionally it prevents me from releasing an NFT and profiting similarly whether or not I ever chose to do so. Go ahead and create a Mickey Mouse NFT and see just how many seconds it takes for Disney to crush you into the ground - then realize that the only reason most NFTs of unlicensed material go unchallenged is because there isn't a clear precedent yet established that makes it a knock out case - but there absolutely will be.
- politician 5y ago
  I'm pretty sure your example doesn't apply to NFTs but am willing to think through it with you. Consider the following counter example: You serve a PNG of your comic character at https://images.munk-a.com/character.png https://images.munk-a.com/character.png. (1) I create a website with some HTML including <img src="https://images.munk-a.com/character.png"/> https://images.munk-a.com/character.png"/>. Did I break a law? (2) I create a JSON document with the text {"url":"https://images.munk-a.com/character.png https://images.munk-a.com/character.png"}. Did I break a law? (3) I create an NFT transaction on a blockchain conforming the ERC-721 specification that contains an optional URL of "https://images.munk-a.com/character.png https://images.munk-a.com/character.png". Did I break a law? As the site operator for images.munk-a.com, do you not have complete control of what is served at path /character.png?
  - munk-a 5y ago
    I am pretty sure, legally speaking that for both 1, 2 and 3 The answer is Yes - but generally nobody cares. I'd briefly clarify that IANAL so take everything with a grain of salt but I suspect that if you publish my email address in a manner to invite harassment without me being a public figure you could be served a take down notice to force its removal - similar things have happened with people publishing the addresses of private individuals. I suspect that if you linked to my favorite picture of me relaxing on the beach in the middle of you describing some truly offensive opinions I'd have a right to disassociate my image from your content. Lastly there's a classic "loophole" (which isn't it's illegal) to get around requiring a liquor license by selling maps to a location where booze can be freely required - I think that's a pretty good mark of precedent that references to things can be equated with the things themselves in the view of the law. If I printed some t-shirts with some notable trademarks on them and didn't offer to sell you one - but did sell you some instructions so that you could pick it up by getting a key out of such-and-such postbox and then opening a safe in the alley behind the parking lot - I'm pretty sure that carries the exact same legal implications as directly selling you a shirt I'd printed without a license.
commoner 5y ago
Embedding copyrighted images into social media posts without the necessary publishing rights has already been found to be illegal in some cases:[1] > Federal courts are split, and recent rulings found that embedding social media posts on third-party websites could be copyright infringement. > Some decisions have even stated that while social media sites “clearly foresee the possibility of entities…using web embeds to share other users’ content, none of them expressly grants a sublicense to those who embed publicly posted content.” The courts rejected motions to dismiss for fair use, stating that sharing such content is not a transformative use. A seller who embeds a copyrighted image into an NFT marketplace listing without the necessary publishing rights and then sells the NFT would be more likely to be liable for copyright infringement than the social media embedder. This is because commercial use of copyrighted content is less likely to satisfy the fair use criteria:[2] > Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work. Someone who sells an NFT without publishing rights is harming the market for NFTs derived from the copyrighted work. This also reduces the chance that a fair use defense would be accepted in court:[2] > Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread. [1] https://news.bloomberglaw.com/us-law-week/is-embedding-social-media-content-legal-courts-disagree https://news.bloomberglaw.com/us-law-week/is-embedding-socia... [2] https://www.copyright.gov/fair-use/more-info.html https://www.copyright.gov/fair-use/more-info.html

verdverm 5y ago

Consider, is OpenSea displaying copyrighted images, what is their legal liability?

politician 5y ago
Forget OpenSea. If Wikipedia willfully displays unlicensed images taken from Getty Images, Getty Images could get them taken down using existing legal tools.
- verdverm 5y ago
  Also consider copyright holders are free to choose who they enforce their rights against. Same applies to licenses.

noodle 5y ago

Isn't the NFT selling the premise that the owner of the NFT owns the art being pointed to? Maybe it isn't theft but it does seem to be fraud? Or if the argument is that NFTs don't convey some sort of ownership over the thing it points to, what's even the point of NFTs?

politician 5y ago
No, what's being sold is ownership of a unique set of metadata stored in a blockchain. There's nothing connecting a NFT to an underlying asset. It's like if I gave you the opportunity to buy the words "The Empire State Building" written on a napkin with a promise to never write those words on any other napkin. You might buy that if, say, I was famous. That's an NFT. You're not the new owner of the Empire State building.
- edmundsauto 5y ago
  I admit I don't understand NFTs much, but would a reasonable analogy be a photograph? I could take a picture of the Empire State Building, sell you the rights to the picture? Except, with an NFT, it's a blockchain identified bit of numbers rather than a picture?
  - politician 5y ago
    Yes, that's a reasonable analogy. Now extend it with some crypto-magic that makes duplicating that picture impossible, that's an NFT.
    - noodle 5y ago
      But the complaint is that people are selling the rights to pictures via NFTs that they don't have the rights to sell in the first place, isn't it? So the analogy would be that some third party took a copy of your photograph of the building and sold the rights to it despite them not having the ability to do so?
      - politician 5y ago
        No, the complaint is that OpenSea is distributing images that were uploaded by users that lack licenses to do so and that OpenSea does not have a compliant DMCA process. Therefore it is being asserted that OpenSea cannot claim a 512(c) exemption from liability. [1] https://crsreports.congress.gov/product/pdf/IF/IF11478 https://crsreports.congress.gov/product/pdf/IF/IF11478 In other words, the complaint is that when you curl e.g. https://images.opensea.com/some-pixel-artwork https://images.opensea.com/some-pixel-artwork it returns a PNG of the pixel art without adequate license metadata, and there's no one to talk to that will fix the issue.
      - basch 5y ago
        Dont confuse selling a picture for selling the rights to a picture. An NFT could include the rights to the actual art itself, but most likely youre buying a sole reproduction. Similar to how going and buying a copy of a photograph at the store doesnt necessarily give you the explicit right to reproduce it for profit. Copyright is different from possession. NFTs are possession, unless they spell out that the purchase also transfers the copyright.
chizhik-pyzhik 5y ago
> Isn't the NFT selling the premise that the owner of the NFT owns the art being pointed to? Correct. The victims here are both the buyer (who bought thinking they purchased from the creator) and the creator (who would have earned that revenue if they created the NFT). The solution is really just better moderation and UX- OpenSea needs to make it easy to determine whether the creator is actually the creator, or just someone who re-uploaded the content.

arcticbull 5y ago

Sure if we pretend really hard. The thing is, NFT folks can't have it both ways. The advocates say it's not a URL - it's the art you're buying, that it's going to support artists, that everyone can share in the rewards. As soon as something goes wrong, well it's actually a URL so take it up with Google, a centralized service, and file a DMCA take-down. No matter what these grifters are taking advantage of the artist and the buyer. I'm loving this web3 thing.

anonymousab 5y ago
> The advocates say it's not a URL - it's the art you're buying I've found that most NFT advocates will agree that you are only paying for a receipt on the blockchain that some central service like OpenSeas equates to you 'owning' a piece of art, and maybe the original artist too, but only conceptually and not legally (services that include signing over copyright notwithstanding). That this is mostly a status symbol for the wealthy to dump cash into, like digital diamonds, is also a not uncommon view - but the difference is that they think that is a valuable end unto itself, and people like myself don't.
politician 5y ago
I mean, at some point isn't it reasonable to expect people to do some basic due diligence before dropping 10k on some metadata. If they don't, who's fault is that really? Read the spec. Jeez (not aimed at you, just generalized exasperation). https://ethereum.org/en/developers/docs/standards/tokens/erc-721 https://ethereum.org/en/developers/docs/standards/tokens/erc...
- Gigachad 5y ago
  If people did due diligence, there would be no such thing as an NFT.
  - politician 5y ago
    I wouldn't go that far. I think there's legitimate value in a digital product that is one-of-a-kind for which the creator is cryptographically prevented from duplicating in an undetectable way. I think there's also value in the idea of some attributes of the instance not being settled or known until the initial transaction completes. This early phase where NFTs contain URLs to images hosted off-chain is just a situation where an example used to explain the concept ("it's like art") blew up in a completely hilarious way.

gpm 5y ago

Art can't be stolen by NFTs, it can be stolen (for a slightly loose definition of steal, including copyright infringement and wire fraud) by people selling NFTs though. Openseas looks to be serving up the images, and according to that thread they aren't respecting DMCA requests ("apparently the only way to get them removed is by writing individual emails for each listing"), that's illegal, intentionally doing that is criminal. The people uploading the art without a license are breaking the law regardless of whether or not the site respects the DMCA. The people fraudulently representing themselves as the original artist when they aren't are breaking the law.

politician 5y ago
That's a good clarification. My point is that there's nothing special happening here legally just because cryptocurrency is involved. It's illegal to distribute copyrighted content without appropriate licenses.
- gpm 5y ago
  I don't believe anyone ever said it was illegal because cryptocurrency is involved... Indeed this thread started with the comment "[...] Putting utter ridiculousness of NFTs aside [...] I'd also emphasize the fraud part more here, it's not just copyright infringement, it's lying about authorship for financial gain, that's a separate (and in my mind much more serious) crime.

anonymousab 5y ago

They're hosting copyrighted material (images, perhaps just cached?) without permission. They had a takedown process that they've now eschewed in favor of making artists give up more personal details to get something taken down. The interesting problem here is that they have started giving artists and their takedown requests the runaround. Like they're running out the clock and trying to placate the bots for as long as possible without taking things down. The intent and actions here is what may get them in trouble. Artists can go to their host directly (Google) but that doesn't mean that OpenSeas isn't liable the same way torrent sites might be for their users' content.

lewispollard 5y ago

I work with a pixel artist whose work was sold on OpenSea. The "owners" of the NFTs certainly didn't seem to understand the nuances you've commented in this thread with - they (and all their buddies) straight up harassed him on every online channel they could find him demanding to talk about "ownership" or otherwise spamming obnoxious and obscene things. So it's not just potential IP theft and fraud, it's also harassment from an army of crypto cultists who don't even understand what it is they're rallying around.

politician 5y ago
I agree that people can be both stupid and cruel.

atom_arranger 5y ago

Torrent websites tried to use the same defense and it didn’t work, unfortunately IMO. Personally I think information should be free.

aspenmayer 5y ago
What do you mean? Torrents are legal in many jurisdictions around the world. How do you feel about DMCA being used to takedown NFTs via Google and Cloudflare, in some cases against the original artist?
- atom_arranger 5y ago
  I mean in many countries torrent search/website operators were prosecuted despite only hosting links/metadata. e.g. People involved with The Pirate Bay. I feel bad about DMCA being used at all. I don’t want anyone prosecuted for sharing information. I’m just mentioning that the “it’s just links” defense might not hold up, based on prior events.

munk-a 5y ago

Consider for a moment that I am comic book artist and have made a wonderful popular series. I consider myself a purist so I've decided to decline offers for merchandising and make plenty of cash just off of comic sales alone. You figure people would really want a t-shirt with my character on it and so you start printing some and selling them - it even turns into an overnight success and suddenly my comic sales are up because memes have caused the character to go mainstream. You've used my creation without my license in a way that certainly violates current law - just because I had eschewed merchandising myself and just because your impact on my sales was positive and not negative - doesn't negate that you took my creative work and profited off of it without any meaningful fair use exception (like making a transformative work). The NFT you could create to my photo has value because it's to my photo - additionally it prevents me from releasing an NFT and profiting similarly whether or not I ever chose to do so. Go ahead and create a Mickey Mouse NFT and see just how many seconds it takes for Disney to crush you into the ground - then realize that the only reason most NFTs of unlicensed material go unchallenged is because there isn't a clear precedent yet established that makes it a knock out case - but there absolutely will be.

politician 5y ago
I'm pretty sure your example doesn't apply to NFTs but am willing to think through it with you. Consider the following counter example: You serve a PNG of your comic character at https://images.munk-a.com/character.png https://images.munk-a.com/character.png. (1) I create a website with some HTML including <img src="https://images.munk-a.com/character.png"/> https://images.munk-a.com/character.png"/>. Did I break a law? (2) I create a JSON document with the text {"url":"https://images.munk-a.com/character.png https://images.munk-a.com/character.png"}. Did I break a law? (3) I create an NFT transaction on a blockchain conforming the ERC-721 specification that contains an optional URL of "https://images.munk-a.com/character.png https://images.munk-a.com/character.png". Did I break a law? As the site operator for images.munk-a.com, do you not have complete control of what is served at path /character.png?
- munk-a 5y ago
  I am pretty sure, legally speaking that for both 1, 2 and 3 The answer is Yes - but generally nobody cares. I'd briefly clarify that IANAL so take everything with a grain of salt but I suspect that if you publish my email address in a manner to invite harassment without me being a public figure you could be served a take down notice to force its removal - similar things have happened with people publishing the addresses of private individuals. I suspect that if you linked to my favorite picture of me relaxing on the beach in the middle of you describing some truly offensive opinions I'd have a right to disassociate my image from your content. Lastly there's a classic "loophole" (which isn't it's illegal) to get around requiring a liquor license by selling maps to a location where booze can be freely required - I think that's a pretty good mark of precedent that references to things can be equated with the things themselves in the view of the law. If I printed some t-shirts with some notable trademarks on them and didn't offer to sell you one - but did sell you some instructions so that you could pick it up by getting a key out of such-and-such postbox and then opening a safe in the alley behind the parking lot - I'm pretty sure that carries the exact same legal implications as directly selling you a shirt I'd printed without a license.

commoner 5y ago

Embedding copyrighted images into social media posts without the necessary publishing rights has already been found to be illegal in some cases:[1] > Federal courts are split, and recent rulings found that embedding social media posts on third-party websites could be copyright infringement. > Some decisions have even stated that while social media sites “clearly foresee the possibility of entities…using web embeds to share other users’ content, none of them expressly grants a sublicense to those who embed publicly posted content.” The courts rejected motions to dismiss for fair use, stating that sharing such content is not a transformative use. A seller who embeds a copyrighted image into an NFT marketplace listing without the necessary publishing rights and then sells the NFT would be more likely to be liable for copyright infringement than the social media embedder. This is because commercial use of copyrighted content is less likely to satisfy the fair use criteria:[2] > Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work. Someone who sells an NFT without publishing rights is harming the market for NFTs derived from the copyrighted work. This also reduces the chance that a fair use defense would be accepted in court:[2] > Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread. [1] https://news.bloomberglaw.com/us-law-week/is-embedding-social-media-content-legal-courts-disagree https://news.bloomberglaw.com/us-law-week/is-embedding-socia... [2] https://www.copyright.gov/fair-use/more-info.html https://www.copyright.gov/fair-use/more-info.html