

Flickr yanks image of Obama as Joker - miked
http://yro.slashdot.org/story/09/08/19/1836210/Flickr-Yanks-Image-of-Obama-as-Joker

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tjic
This _so_ clearly falls under Fair Use:

[http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_...](http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_States_law)

    
    
           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
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
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
_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
> 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
_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_...](http://en.wikipedia.org/wiki/OCILLA#Knowledge_of_Infringing_Material)

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
> 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/>].

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.

~~~
_pius
I'm not sure why you're still arguing, but that wasn't convincing at all. I'll
quickly address what you've said and then I'm done with the thread. Beyond
that, I don't know what else to do other than _again_ point you to the law and
encourage you to talk to some experts in the field if you don't believe me.
This isn't my analysis ... I'm just repeating what I learned when I took a
class on the subject. Thankfully, it's also supported by the law. :)

 _"Common" does not imply correct. I will grant you that its common._

I'm not sure what you mean by "correct" in this domain. I don't think
"correct" is defined here; there are only "legal" strategies and "liability-
minimizing" strategies. The legality is a binary question and I think you'd
agree that what Yahoo did was legal. Whether Yahoo's strategy is the most
effective at limiting the liability is almost a closed question as well. You
conceded earlier that it is a common strategy. The reason it is common for
online service providers is that it is currently the most sure-fire strategy
for limiting liability stemming from speech that users make.

 _... it explicitly counters your broad "better safe than sorry aproach"_
[sic]

No, actually it confirms what I said and explicitly debunks your claim that
taking down the content is equivalent to adjudicating the copyright issues.
The point of the provision is that you don't need to make a judgment; as long
as you take the content down upon being made aware of potential copyright
violations, you're fine. Hence, "better safe than sorry."

 _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._

What makes you think there was no such notice?

~~~
ynniv
> This isn't my analysis ... I'm just repeating what I learned in this guy's
> class: [redacted]

I am also not a lawyer and I am interpreting the law as written on my own, so
my opinions probably differ from top law professors. I am a a little
disappointed at the argument from authority, but I can't say that I wouldn't
have done the same given the situation.

> I'm not sure what you mean by "correct" in this domain.

Thats a very good point, and I think that by correct I mean "most morally
correct in the bounds of the law". Certainly, what Yahoo did was legal, but it
was also unnecessary. As far as I can tell, the photo posed them no liability,
nor were they legally required to remove it.

> No, actually it confirms what I said and explicitly debunks your claim

You are correct. I was wrong in saying that it countered your argument, and
should have said that it provides a wider berth for Yahoo to retain their safe
harbor status. Their actions were unnecessary in the eyes of the law (as
written).

> What makes you think there was no such notice?

The LA Times article says that Flickr removed the image "due to copyright-
infringement concerns". That doesn't prove that there was no notice, but
citing "notice" sounds a lot better than citing "concerns" and I would expect
them to do so.

> I'm not sure why you're still arguing

I'm not sure either. Partly, this thread started with the blanket statement
that "'fair use' is not a right", which while correct, is a bit of a troll and
got me emotionally involved. More generally, I feel that your implicit
argument that Flickr did nothing wrong is pervasive but incorrect. The way in
which they handled this case combined with their legal liabilities suggest
that their actions were based on the popularity and political views of the
photograph posted.

As you mentioned, if one cares about their rights, they should host their own
content. I couldn't agree more, and this is a clear public display of the
disadvantages in relying on corporate services.

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vinutheraj
This will become another example of the _Streisand effect_ most probably -
<http://en.wikipedia.org/wiki/Streisand_effect>

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hughprime
If true, they haven't done a very good job of it:

[http://www.flickr.com/search/?w=all&q=obama+joker&m=...](http://www.flickr.com/search/?w=all&q=obama+joker&m=text)

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msie
So what? I've heard of television stations and publications refusing to show
certain political ads. I've heard of a bus company that won't carry atheism
ads.

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socratees
Is this frickin China?

~~~
kragen
Oh come on. When was the last time you heard about someone getting their stuff
deleted in China over something so trivial as _copyright infringement_?

