4 ms·

This so clearly falls under Fair Use: http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_States_law http://en.wikipedia.org/wiki/Fair_use#Fair_use_und

by tjic 17y ago

This so clearly falls under Fair Use: http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_States_law http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_... 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work.

_pius 17y ago
A lot of people don't realize this, but Fair Use in the United States is not a "right," but rather an accepted legal defense to copyright infringement. There is a difference.
- ynniv 17y ago
  I'm not sure what your point is (or why people upvoted this). Are you suggesting that Flickr's Terms of Service provide them a broader interpretation of copyright infringement? The logical extension of what you're saying is that "Fair Use" should not be invoked until there is a lawsuit. AFAICT, there will never be a lawsuit, as Flickr preemptively removed the "offending" content. Since Flickr is effectively acting as judge and jury in a closed doors case that the defendant wasn't invited to, when does he get to use his clearly applicable "Fair Use" defense?
  - _pius 17y ago
    I'm not sure what your point is (or why people upvoted this). Are you suggesting that Flickr's Terms of Service provide them a broader interpretation of copyright infringement? Not at all, but your response betrays the fundamental misunderstanding here. It's not Flickr's job to adjudicate copyright disputes or have any "interpretation of copyright infringement." No, the point here is that Flickr is not infringing some "fair use" right. That right doesn't exist. The right that does exist is Flickr's right not to host the picture. If someone complains to Flickr that a user's image is infringing their copyright, it's certainly not incumbent upon Flickr to pre-emptively argue "fair use" on the user's behalf. If Flickr is truly concerned that the picture is infringing a copyright, why in the world would it be their job to absorb that legal risk on some user's behalf? If the user is so confident that it's a fair use, they can host the image on their own server and be prepared to make that defense in court, rather than expect Flickr to go to court and argue it for them. This is not to say I agree or disagree with the photo being taken down; I'm going to remain agnostic on that point. But implying that Flickr has to defend someone's mythical "fair use" right is nowhere near accurate.
    - ynniv 17y ago
      > It's not Flickr's job to adjudicate copyright disputes or have any "interpretation of copyright infringement." Indeed, but clearly they are adjudicating, so to say it is unfair to hold them to the standards of the position is ridiculous. > No, the point here is that Flickr is not infringing some "fair use" right. That right doesn't exist. No one has used the term "right", except yourself. The original poster's intention was to point out the baselessness of Flickr's actions. Due to the political and parody aspects of the picture, the general public would assume that this content would not result in a lawsuit. If there were documentation to the contrary, Flickr's actions would have some merit.
      - _pius 17y ago
        Indeed, but clearly they are adjudicating ... That's not true. It may seem counterintuitive, but they are doing the opposite. They are specifically not adjudicating it, but rather taking the "better safe than sorry" approach. I understand your position, but I think you're lacking some useful context. There's a lot of established case law in the United States (going way back to when Prodigy and Compuserve were in their respective heydays) about what types of behavior make entities that provide fora for online content more like libraries (and thus more or less held harmless for content inside) and what behaviors make them more like newspapers (that exercise editorial control over their content and thus liable for the "speech" that they allow to be published, even if the "speech" is user-provided). IANAL, so I'm not going to rehash all of this law here; instead I will direct you to the Safe Harbor provision of the Online Copyright Infringement Liability Limitation Act, which I think will rebut you far more directly than I can. http://en.wikipedia.org/wiki/OCILLA#Knowledge_of_Infringing_Material http://en.wikipedia.org/wiki/OCILLA#Knowledge_of_Infringing_... Suffice it to say, the "better safe than sorry" approach taken here by Yahoo/Flickr is a very common, standard technique for limiting liability online.
        ynniv 17y ago
        > Suffice it to say, the "better safe than sorry" approach taken here by Yahoo/Flickr is a very common "Common" does not imply correct. I will grant you that its common. > Safe Harbor provision of the Online Copyright Infringement Liability Limitation Act The Safe Harbor provision of §512(c) requires the provider to take down content given 1) notice from the content owner, or 2) the presence of "red flags". References to red flags in the DMCA suggest gross infraction, which in this case would look like a Flickr account dedicated to reproducing copyrighted content. This does not appear to be the case [http://www.flickr.com/photos/khateeb88/ http://www.flickr.com/photos/khateeb88/]. The "red flag" provision was also added to §512(d) for link indexing sites. There is more descriptive text attached to this "red flag" and it explicitly counters your broad "better safe than sorry aproach": catalogers would not be required to make discriminating judgments about potential copyright infringement. Without a takedown notice from a copyright holder, or an account dedicated to reproduction of unlicensed content, this is no legal reason for taking this content down. It is hopefully the work of a single moderator, and not corporate policy.
hughprime 17y ago
One could argue that it doesn't. Not necessarily what I think, but enough to make a difficult case out of it if it ever came to court. In particular, the "amount and substantiality of the portion used" is "the whole damn thing". As far as I know, each photograph counts as an individual work. The defense of "parody" is pretty strong, but as far as I know only applies if the subject of the parody is the copyrighted work itself. In this case the copyrighted work (a fairly neutral sort of photo) has been used to parody a third party (Mr Obama) who isn't the owner of the copyright. It's like Weird Al: his version of "Beat It" is a parody of "Beat It" so he didn't need permission, but his version of "American Pie" was actually a parody of "Star Wars", so he did.
tedunangst 17y ago
I'm pretty sure Flickr isn't obligated to host images they don't want to. Given that, they need some placeholder text to put up in place of the image, so whatever moderator took it down probably clicked the copyright button (as opposed to the porn button). If you want your day in court to prove your images are a fair use, host them on your own server. Why would you expect Flickr to pay to defend you?

by tjic 17y ago

_pius 17y ago

A lot of people don't realize this, but Fair Use in the United States is not a "right," but rather an accepted legal defense to copyright infringement. There is a difference.

ynniv 17y ago
I'm not sure what your point is (or why people upvoted this). Are you suggesting that Flickr's Terms of Service provide them a broader interpretation of copyright infringement? The logical extension of what you're saying is that "Fair Use" should not be invoked until there is a lawsuit. AFAICT, there will never be a lawsuit, as Flickr preemptively removed the "offending" content. Since Flickr is effectively acting as judge and jury in a closed doors case that the defendant wasn't invited to, when does he get to use his clearly applicable "Fair Use" defense?
- _pius 17y ago
  I'm not sure what your point is (or why people upvoted this). Are you suggesting that Flickr's Terms of Service provide them a broader interpretation of copyright infringement? Not at all, but your response betrays the fundamental misunderstanding here. It's not Flickr's job to adjudicate copyright disputes or have any "interpretation of copyright infringement." No, the point here is that Flickr is not infringing some "fair use" right. That right doesn't exist. The right that does exist is Flickr's right not to host the picture. If someone complains to Flickr that a user's image is infringing their copyright, it's certainly not incumbent upon Flickr to pre-emptively argue "fair use" on the user's behalf. If Flickr is truly concerned that the picture is infringing a copyright, why in the world would it be their job to absorb that legal risk on some user's behalf? If the user is so confident that it's a fair use, they can host the image on their own server and be prepared to make that defense in court, rather than expect Flickr to go to court and argue it for them. This is not to say I agree or disagree with the photo being taken down; I'm going to remain agnostic on that point. But implying that Flickr has to defend someone's mythical "fair use" right is nowhere near accurate.
  - ynniv 17y ago
    > It's not Flickr's job to adjudicate copyright disputes or have any "interpretation of copyright infringement." Indeed, but clearly they are adjudicating, so to say it is unfair to hold them to the standards of the position is ridiculous. > No, the point here is that Flickr is not infringing some "fair use" right. That right doesn't exist. No one has used the term "right", except yourself. The original poster's intention was to point out the baselessness of Flickr's actions. Due to the political and parody aspects of the picture, the general public would assume that this content would not result in a lawsuit. If there were documentation to the contrary, Flickr's actions would have some merit.
    - _pius 17y ago
      Indeed, but clearly they are adjudicating ... That's not true. It may seem counterintuitive, but they are doing the opposite. They are specifically not adjudicating it, but rather taking the "better safe than sorry" approach. I understand your position, but I think you're lacking some useful context. There's a lot of established case law in the United States (going way back to when Prodigy and Compuserve were in their respective heydays) about what types of behavior make entities that provide fora for online content more like libraries (and thus more or less held harmless for content inside) and what behaviors make them more like newspapers (that exercise editorial control over their content and thus liable for the "speech" that they allow to be published, even if the "speech" is user-provided). IANAL, so I'm not going to rehash all of this law here; instead I will direct you to the Safe Harbor provision of the Online Copyright Infringement Liability Limitation Act, which I think will rebut you far more directly than I can. http://en.wikipedia.org/wiki/OCILLA#Knowledge_of_Infringing_Material http://en.wikipedia.org/wiki/OCILLA#Knowledge_of_Infringing_... Suffice it to say, the "better safe than sorry" approach taken here by Yahoo/Flickr is a very common, standard technique for limiting liability online.
      - ynniv 17y ago
        > Suffice it to say, the "better safe than sorry" approach taken here by Yahoo/Flickr is a very common "Common" does not imply correct. I will grant you that its common. > Safe Harbor provision of the Online Copyright Infringement Liability Limitation Act The Safe Harbor provision of §512(c) requires the provider to take down content given 1) notice from the content owner, or 2) the presence of "red flags". References to red flags in the DMCA suggest gross infraction, which in this case would look like a Flickr account dedicated to reproducing copyrighted content. This does not appear to be the case [http://www.flickr.com/photos/khateeb88/ http://www.flickr.com/photos/khateeb88/]. The "red flag" provision was also added to §512(d) for link indexing sites. There is more descriptive text attached to this "red flag" and it explicitly counters your broad "better safe than sorry aproach": catalogers would not be required to make discriminating judgments about potential copyright infringement. Without a takedown notice from a copyright holder, or an account dedicated to reproduction of unlicensed content, this is no legal reason for taking this content down. It is hopefully the work of a single moderator, and not corporate policy.

hughprime 17y ago

One could argue that it doesn't. Not necessarily what I think, but enough to make a difficult case out of it if it ever came to court. In particular, the "amount and substantiality of the portion used" is "the whole damn thing". As far as I know, each photograph counts as an individual work. The defense of "parody" is pretty strong, but as far as I know only applies if the subject of the parody is the copyrighted work itself. In this case the copyrighted work (a fairly neutral sort of photo) has been used to parody a third party (Mr Obama) who isn't the owner of the copyright. It's like Weird Al: his version of "Beat It" is a parody of "Beat It" so he didn't need permission, but his version of "American Pie" was actually a parody of "Star Wars", so he did.

tedunangst 17y ago

I'm pretty sure Flickr isn't obligated to host images they don't want to. Given that, they need some placeholder text to put up in place of the image, so whatever moderator took it down probably clicked the copyright button (as opposed to the porn button). If you want your day in court to prove your images are a fair use, host them on your own server. Why would you expect Flickr to pay to defend you?