3 ms·

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 me

by 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.
  - politician 5y ago
    Am I correct in understanding your position as saying that a member of the public offering a URL without the explicit permission of site operator may not just be against the site's TOS but may be illegal? If that's the case, then yes, I would agree that using a URL would require permission from the site operator. That would basically bring to a halt the Internet, but yes. In the context of NFTs, it presents a real problem because they are immutable. If the NFT contains a URL that is not authorized or if the authorization is subsequently withdrawn for any reason, then the NFT is tainted but cannot be destroyed. There's probably a start up idea around creating a catalog of tainted and untainted NFTs where regulated entities like Coinbase, OpenSea would pay to determine whether there are any claims against an NFT by a rightsholder. But, if OpenSea isn't implementing a proper DMCA process right now, they're probably an unlikely partner and there's not really a deep moat around that idea anyway.
    - 5y ago

by munk-a 5y ago

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.
- politician 5y ago
  Am I correct in understanding your position as saying that a member of the public offering a URL without the explicit permission of site operator may not just be against the site's TOS but may be illegal? If that's the case, then yes, I would agree that using a URL would require permission from the site operator. That would basically bring to a halt the Internet, but yes. In the context of NFTs, it presents a real problem because they are immutable. If the NFT contains a URL that is not authorized or if the authorization is subsequently withdrawn for any reason, then the NFT is tainted but cannot be destroyed. There's probably a start up idea around creating a catalog of tainted and untainted NFTs where regulated entities like Coinbase, OpenSea would pay to determine whether there are any claims against an NFT by a rightsholder. But, if OpenSea isn't implementing a proper DMCA process right now, they're probably an unlikely partner and there's not really a deep moat around that idea anyway.
  - 5y ago