
Did I Just Give My Permission? The Hashtag as Consent - negrit
http://blog.photoshelter.com/2015/09/did-i-just-give-my-permission-the-hashtag-as-consent/
======
delinka
This is worse than "by continuing to use this site/software you are agreeing
to our terms" and would basically be saying "by mentioning this string of
characters, you grant us a worldwide, non-exclusive, royalty-free license to
your content with or without attribution at our discretion."

Unacceptable. I don't see how this should work out any way except in the favor
of the copyright holders.

~~~
digisth
Well, using the standard embedding tools, you do get attribution, and a link
back to the source (see Twitter, Vine, and Instagram web embeds for examples),
but the other parts are generally in the services' TOS. This is from Twitter:

"You retain your rights to any Content you submit, post or display on or
through the Services. By submitting, posting or displaying Content on or
through the Services, you grant us a worldwide, non-exclusive, royalty-free
license (with the right to sublicense) to use, copy, reproduce, process,
adapt, modify, publish, transmit, display and distribute such Content in any
and all media or distribution methods (now known or later developed).

Tip: This license is you authorizing us to make your Tweets on the Twitter
Services available to the rest of the world and to let others do the same."

Without this, all those embedded Tweets you see everywhere (like in news
stories) wouldn't be available (this is why I think these services should all
give you the ability to disable embedding your post(s) like Flickr/YouTube do.
It would make everything much clearer and more straightforward.)

------
jrandm
"If you Tweet with a hashtag on a public account, anyone who does a search for
that hashtag may find your Tweet"
[https://support.twitter.com/articles/49309](https://support.twitter.com/articles/49309)
\- and first result searching for anything like 'Twitter hashtag'.

I think that's pretty clearly publishing and explicitly choosing to make your
image/thought/whatever available to whatever you #mention. That does seem like
granting permission for the #brand to share the content through social spaces.
I'd expect them to ask permission before using it in "actual" advertisements
(billboards, signs, commercials, etc), but anything shy of that seems like
fair game.

The nearest thing I can think to compare it to (pre-Internet) would be mailing
a photo to the company; what would you expect them to do with it?

~~~
scintill76
Just because content is discoverable by anyone, does not give them license to
reproduce it. (In this case, it was reproduced on their website.)

I think you are putting too much weight on hashtags' "meaning", too. See:
[https://news.ycombinator.com/item?id=10367901](https://news.ycombinator.com/item?id=10367901)

~~~
jrandm
What's ambiguous about #crocs (which is a registered trademark) in that
context?

I don't believe they should directly use other's content for material gain (in
advertisements, essentially), but a photo/comment the creator willingly
released to the public and attached to the brand logically allows for re-
sharing that content to me, especially by the entity explicitly mentioned.

I wouldn't be on the business's side had this been a private account or even a
blog somewhere, but she published an image to the public on a hugely popular
platform and tagged it with the company's name. How is that different than
sending the image to the company saying "Look at how cute my daughter is in
these crocs?" Other than that millions of people could see the image prior to
the company reproducing it.

~~~
scintill76
If someone posted a photo with an individual with crocodiles, who happened to
be wearing Crocs™, and it was hashtagged "#crocs", it's possible they did not
intend to consent to be used for Crocs™ advertising material, but your
proposal would assume they are. It may be contrived, but I don't think it's so
contrived as to be automatically dismissed as a problem with your position. It
goes to the general problem of ambiguity in hashtags.[0]

IANAL, but AFAIK having a trademark (in what jurisdiction?) does not confer
the ability to appropriate others' IP even if they used your trademark. At
best Crocs, Inc. can probably censor uses of the #crocs hashtag.

If she had snail-mailed Crocs, Inc. her photo with nothing else but the
caption she wrote on Instagram, it would not give them a license to copy it! I
feel like a broken record at this point... I agree it would be bizarre, and
some people's social media behavior like this case is bizarre, but it would
not justify them reproducing it without her permission.

They reproduced it on their own website, which is different than retweeting or
whatever analog Instagram might have. Honestly I'm not sure exactly where I
draw the line, especially given I don't know all the nuances of social media's
features and etiquette, but rehosting crosses the line.

(I don't typically defend IP law as it exists today, but as long as it remains
the law, I will when rich corporations try to trample lowly individuals' IP
rights.)

[0] Edit: In the spirit of IP attribution, I will note I did read another
commenter's post here about crocodiles and have probably derived this scenario
from it. :)

~~~
jrandm
I can see potential ambiguity in hashtags and wouldn't apply my argument carte
blanche, but this specific instance doesn't have any confusion in usage.

My main concern here is that the positions are often reversed -- in this
instance a company used an individual's content in a friendly, appropriate
way, and did ask permission before any standard commercial use. Usually an
individual is using a corporation's content in a friendly, appropriate way and
is forced to desist.

I'd rather see more sanity in IP rights and look at specific instances than
broadly apply some one-size-fits-none legal interpretation. I'd also rather
the discussion be about practical concerns in (public) sharing on social
media; any image tagged with popular terms and public is out of your control
regardless of IP enforcement. My point is more that the chain of events is
predictable and will continue to happen, so rather than attempt to enforce a
virtually-meaningless copyright on a photo tell people this is normal and be
mindful of what and how you share your content.

~~~
delinka
In this instance, they did not get permission first. From the article:

"...posted it to their website with other UGC content. It was only much later
that Crocs sought explicit permission..."

And that's unacceptable. The TOS of these sites with embeddable content have
content creators licensing their creations for embedding, provide attribution
when embedded correctly, and generally attempt to be fair in the arrangement.
Explicitly taking content from any place online simply because it was publicly
accessible and dropping it into your site without the proper embedding code is
not acceptable. It doesn't matter that there's a mention of a hashtag that the
company's marketing department encouraged the creator to use.

------
Dylan16807
> Legally speaking, a lack of case law means the jury’s out. But for brands
> striving to connect with their constituency, it’s clear that more explicit
> permission is needed for brand-based tags (e.g. #calvinklein), or more
> complicated tags (e.g. #caughtondropcam) need to be used so that the claim
> of implied consent is more defensible.

Specific tags only solve half the problem. Someone could copy the tag from
someone else without being aware of the campaign going on.

------
rrauenza
Hashtags can be vague as well -- what if it was a picture of a child at the
zoo in front of crocodiles? Who says _that_ particular hashtag gives _that_
particular party permission to use the photo?

------
jackvalentine
I think its reasonable to think that your content will only be used in a way
the platform supports - retweets on twitter, embeds on instagram. The use of
those "re-gramming" apps has always seemed a bit wrong to me and ripping the
image from the context of the app and using it on your website is a step even
further in to wrong.

------
mc32
I think this can depend on a few things. The license terms under which UGC is
uploaded, how UGC is (re-)distributed, (for example retweet vs a capture vs a
DL.) and context (part of a news item, or commercial endeavor).

However, I think parents especially overshare things about their children.
Once you let something out of the bag, it's going to be hard to put it back.

And, of course, if you're using something for commercial purpose, you need to
seek permission, if you're unsure about the license. However, much of the
public's loosey goosey attitude toward copyright can filter into the attitudes
of unsophisticated marketing organizations (an intern etc. not familiar with
IP thinks they are doing "guerilla" mkting, for example).

~~~
TeMPOraL
> _(an intern etc. not familiar with IP thinks they are doing "guerilla"
> mkting, for example)._

Try: senior marketer perfectly familiar with IP decides to ignore it thinking
they're doing "guerilla" marketing, and then blaming it on an intern if
caught. Sleazy industry, sleazy standard practices.

------
digisth
It's a complicated topic without nearly enough exploration in the legal area,
and without any real agreement from the companies that run these social media
platforms. Twitter's ToS (and their reps) have said you can embed anything
without needing advanced permission; Instagram says the opposite. Media
outlets use embedded tweets/Instagrams for editorial purposes everywhere, and
this seems like it would be fair use (taking a snippet of a 140 character
message as you would with an article makes no sense) but some people still
complain. No one has any problem with embedding YouTube videos or Vines. How
this all plays out is likely to be decided in the coming decades in courts and
the media.

Three things that would be incredibly helpful in this area:

1) All these services should give users the ability to prevent embedding of
their posts either globally or on a post by post basis. Drawing a very bright
line like this makes what is and is not OK very clear. Off or on by default
would be debatable.

2) Supply a UI or API for automatically obtaining licensing permission
(requester goes to an Instagram post, clicks/taps "request license to use
in/on {web, billboard, TV commercial, etc.}" which sends a message to the
original poster, poster can than choose to consent/refuse, response is sent to
the requester.

3) Make some public statements / legal guarantees (i.e., a promise to stand
behind people who get sued even when using service-provided embedding tools)
about what they consider acceptable usage.

Right now it's just very gray, and the safe route is to obtain advanced
permission for anything with a photo, which I think goes against the
frictionless spirit of the old web (i.e., just put up a link or excerpt a post
and be done with it.) The service-provided embedding tools try to maintain
that spirit in the more walled-gardeny world, but legal uncertainties still
make that iffy. I wrote a bit more on this previously:
[https://medium.com/@sthware/user-generated-content-
embedding...](https://medium.com/@sthware/user-generated-content-embedding-
and-permission-2ae8b2edcf74)

I'm not sure what the legal reasoning would be for "hashtags as consent for
photo usage", but something tells me that it probably wouldn't hold up in
court if it came down to it.

Edit: another thing that needs discussion is things that seem innocent to
many, but could be legally questionable. Prominent example: retweets. Let's
say you embed a Twitter widget of your company's feed on your web site's
product page. You retweet something someone has posted about your product. It
then appears in the feed, on the web site, next to your products. Protected or
not? Using some of the logic from Heigl vs Duane Reade, it might not be:
[https://social.ogilvy.com/celebrities-suing-brands-for-a-
twe...](https://social.ogilvy.com/celebrities-suing-brands-for-a-tweet/)

~~~
TeMPOraL
What's wrong with embedding per se? We should be preventing companies from
monetizing other people's works without permission and knowledge, but
disabling embedding - especially with all the cruft that usually comes with
it, that points towards the source - is going too far. It's trying to protect
user rights so much that it overflows the counter and wraps back around to
damaging them.

As a user I want the right to embed any publicly available work for purpose of
commentary, as long as I'm doing it non-profit. Yes, if someone posts a public
photo of their kid, I want to be able to embed it on my non-profit website (if
I run ads, go ahead and sue me) to comment about that absolutely awesome/awful
photo I've just found. Disabling embedding wholesale is throwing baby out with
bathwater - it's hurting cultural development.

~~~
digisth
There's nothing wrong with it, but having the ability for people to opt-out
(some professional photographers, for example, don't want any kind of usage
that isn't pre-approved, even if editorial) would be a way to make it crystal
clear whether that user is OK with it or not. What we have right now leaves
everyone in a murky area legally, and adds friction and annoyance. "Embed
controls" would remove any questions about it, which would give users a say in
how their content is used without having to give permission for each usage
request, and would protect the people that want to use the posts without
having to make a request for each one. Everyone would be covered.

Also, there are many different kinds of uses, some commercial-y. Here are a
few:

\- Display on Twitter itself (retweet)

\- Use in a news story, near an ad

\- Display in a Twitter widget on a web site

\- Embedded Instagram photos on a company gallery page

\- Use in an email ad campaign

\- Use on a billboard

The list of things above exist on spectrum of "commercial-ness", and
reasonable people can disagree on which they think are OK and which aren't as
far as obtaining advanced permission. What many would like to see are much
more explicit rules or technical controls so that the ambiguities are removed.

Embed controls might not be ideal from a fair use perspective, but it's a lot
better than the "let the courts figure out" situation we have now.

------
lukeh
I got this other day for a music sync. Retweet to approve. C'mon guys...

[https://twitter.com/_Live_Better/status/651734344487333888](https://twitter.com/_Live_Better/status/651734344487333888)

------
mirceal
Once you put it online w/ public access I think it's fair game.

I'm more in the camp of: don't put things you don't want other to share / look
at online (yes, pictures of your kids especially)

~~~
csydas
I think this is slightly misguided in this case; I think your position is more
used for safety purposes rather than the copyright purposes here (i.e., while
both touch on what happens to someone's personal data once online, your
example seems to be more about protection and the article is talking about a
business agreement)

If the door was allowed to swing both ways, and users could assume that
anything that businesses upload is fair game to copy and use for their
personal sites, it wouldn't be as egregious. But in many cases, corporations
hold far more power when it comes to takedowns for copyrighted material.

What is being argued here is that the hashtags should count as consent, but I
think that's really bad because there isn't really any way to give informed
consent in the form of a hashtag. Each corporation is going to have different
media replication terms and conditions that they offer, and I don't think that
you should be able to give away rights to a work without actually knowing what
you're agreeing to.

As an aside, I'm aware that often people sign agreements without reading the
entirety of the agreement and have no idea what they're agreeing to. In that
instance, they at least have the chance to know what it is they're agreeing to
and they choose to ignore it. If hashtags become consent, the users wouldn't
even have a chance to read the agreement before they agree to it. That just
seems like horrible precedent to set.

------
marknadal
I find it interesting that nobody is mentioning the inverse - plenty of HNers
seem to think it is okay to redistribute companies' generated content (and I
agree with piracy) yet many of you here are somehow thinking that because of
"privacy" on a perfectly public website like Twitter that a company shouldn't
be allowed to redistribute what (unfortunately) is content that Twitter owns
(because the user submitted to Twitter and Twitter's terms). But what ever
happened to the privacy rights of companies' generated content, why shouldn't
they require you to get permission before you reshare that pirated content? I
sniff double standards.

------
TickleMeHellNo
You can't inadvertently shill if you keep your mouth shut, you can't be
misconstrued as consenting if you don't hashtag.

Maybe it's time to think about how unnatural it is for us to be sharing this
much of our lives online, instead of complaining about corporations doing what
corporations do, which is overstep the bounds of good taste and sanity in the
name of making another buck.

~~~
kylnew
No kidding. I don't use a hashtag or even mention a brand name online without
understanding the consequences.

~~~
TeMPOraL
No, this is wrong. We should have an ability to discuss any brand however we
like without said brand pulling it into their marketing engine.

~~~
kylnew
Say crappy things about a brand online and I promise it won`t go in the
marketing engine. What positive things are you saying publicly about a brand
with hashtags that you also are trying to protect from being reused?

Honestly though, I don't really advocate the way corporations do these things
but I'm also in support of using my brain before posting content given the
current circumstances.

------
TazeTSchnitzel
OT, but from the title I expected this would be about people who treat Twitter
as if it were a discussion forum and expect a debate from someone who uses a
hashtag. It's an obnoxious behaviour, #gamergate is the most famous example.

