Monday, January 26, 2009

Where do we stand on Internet Copyright Law?



Do you see the image above the text? I chose it without the artist's approval from this website but traced the origin of the image back to this website. Should I feel guilty about it? I've done it hundreds of times before. If I stand guilty of this crime, I stand guilty of many others too.

I'm going to go out on a limb here and assume I'm not alone. The Internet is a vast cauldron of video-sharing, link-sharing, knowledge-sharing, and yes, image-sharing. The spirit of the Internet seems to be that of a free culture. We are less concerned with property rights in cyberspace, and more concerned with community and conversation.

I'm writing this essay because I want to know what are the claims to ownership on the Internet. Nobody seems to know the answer to this question. There is no absolute law we can refer to. And if there is an absolute law, then the spirit of the Net seems to challenge that rule, provoke the law, even mock its upholders. But there are also some of us who place a high value on the individual and therefore demand the individual know her work is being shared; we must ask her approval.

If getting an artist's approval to post her image on my site is necessary and universal, then I should probably go back and obtain a plethora of approvals. Surely some will not be granted and then I must find another approval and another. Does it seem to you that this is the way things work on the Net? Or do people merely take what they like (like myself) and showcase it. Keep in mind in no way am I trying to pass off these images as my own. In fact, I credit the artists here. But I do not go so far as to ask each and every one of them if I can post their pictures. Many are in fact dead.

The Internet poses this contradiction. We recognize that file-sharing is rampant and that the wheels and cogs of the Web involve a dissemination of information; and yet we also feel the twinge of our old system of rights, copy rights, property rights, etc. To what extent is cyberspace a common space? And to what extent is it privatized? At what point should one say, "No, that's not yours; that's mine. I know I put it out there for all of you to see, but I only wanted it to appear on my site and not anyone else's."

Luckily nobody has ever said this to me. And if they wanted their image taken down, I would immediately do so. But I do not feel the need--in this wave of free-culture dissemination--to ask each artist for the approval to use their image.

I was provoked into writing this essay because of a post on a favorite blog of mine. The article, entitled "How to use Hyperlinks in Blog Fiction" didn't specifically address copyright, but the nebulous area of Internet copyright turned up in the comments.

Bekah, a blog fiction writer, wrote:

"Yes, linking to things should be fine, although not if you pretend it's your own work. But otherwise, of course that works. But putting non-stock images in blogs-- definitely a copyright infringement, even if you give credit. It is true that a lot of illegal activity occurs on the web, but it's also true that many lawsuits have followed. This isn't likely in any case, but I don't want to get near that."

I don't know much about the "many lawsuits" of Internet copyright law. What I'm more familiar with is the excess of abuses of copyright law. Especially surrounding file sharing. In the music industry in particular, copyright law is bending toward the file-sharers' favor. Apple has removed the copyright protection on its mp3s and the music industry has publicly declared that it will no longer sue individual file-sharers.

Bekah continues:

"That being said, I don't think it'll ever be okay to post someone else's picture on your blog without permission, but I don't think that anyone is suggesting that you can or should do that."

Now, artists who do not want their images shared take precautions. Some photos on Flickr for example will not copy to your hard drive because the artist has formerly set restrictions on them. In this case, it is impossible for me to copy them and the issue is moot. But what about in the cases where I can copy people's pictures. Is it wrong?

Another blogger, who runs an art blog called Vince's Ear, writes:

"Well, Chris that's an interesting question because copyrights and copyright law can be interpreted in a number of different ways, including in the courts. The main thing for me to know is something called "Fair Use." I won't be able to sell a copyrighted image in any certain form, but I can perfectly legally display the image on my site for educational purposes."

He goes on to say:

"Sorry for such a long response but I'd mainly say if a blogger is just putting images on a site, there is no need to worry at all, it's Fair Use. If you were to print and sell the Novel of Life, make sure any illustrations are in the Public Domain, or you have permission if they're not."

I consider my writing educational and therefore the "Fair Use" clause may apply to me. The educational purpose behind this essay (and its adjoining image) is to make people think. But I must be honest here. I pick the images for aesthetic reasons mainly. This reflects a deeper attitude I have about the Internet, art, and information.

I suggest we are entering a new model of human relations, one based on the macro level of exchange, not the micro level. The individual will benefit from this system just as she benefited from the old system; she may even benefit more. When information/art/work is shared by the media, libraries, universities, publications, and organizations more fluidly and freely, there is less emphasis on individual compensation and more on communal benefit. Pictures, photographs, and images are floating around everywhere. If you wanted to track down every "thief" who re-posted an image on the Internet, you would be swimming against the current not with it. The current is in favor of shared knowledge and shared art.

It will take us some time to re-imagine ourselves with fewer boundaries. Because that's what this all points to. The boundaries are dissolving all around us, geographical, political, cultural, racial, economic. The mutual exchange of ideas, images and texts will benefit us all, as it already has. We will only see this when we see it as giving work/information/art to each other, rather than taking it.

I am an artist myself. I write novels. But I've chosen not to pursue the path of traditional publishing (A) because it is crumbling and (B) because I feel I am part of a different economic model. I'd rather give my content away for free. What is a publisher but a protector, someone to handle my money? I don't need a publisher. What I need is an audience. When I find an audience, I will get paid by myself.

The tectonic plates are shifting. We will soon come to realize that the proliferation of an artist's work is worthwhile to everyone, artist, community and God. (I don't believe in God but I think He will benefit too.) So called "property rights" in an online world is a chimera.

Silvio Gaggi's scholarly work elucidates these truths. In From Text to Hypertext , the distinction between print and online worlds is made evident:

"Walter J. Ong argues that 'print creates a new sense of the private ownership of words' and that a 'resentment at plagiarism' develops with writing. Hypertext, in contrast, reinforces a sense of learning more as a communal than an individual endeavor. It creates situations in which individual contributions are likely to get lost within the conversation as a whole, and it creates new kinds of communities emancipated from physical, geographical, or political boundaries."

This book written in 1997 presages much of what is going on today. The author uses the term "hypertext" to describe the textual networks of the Internet. While that word sounds outdated, the gist of it has relevance. Hypertext is shared text, linked text, common text. Blogging is a form of hypertext. From their niches blogs are woven into the greater body of the Net. Blogging is also a conversation. Search engines determine the relevance and popularity of a site based on its links. Complex algorithms pick up on strong and weak links and thereby rank the page. This essentially means that the search engine, that great, sacred filter of online knowledge, values conversation and exchange over private ownership. In essence, what is shared is of higher value than what is not.

Silvio talks about the two mindsets behind the print and online world:

"Individuals accustomed to an ethical system based on the book regard any infringement on their authorial rights or any use of a published text, without appropriate permission, as a moral and legal wrong . . . In contrast, individuals who have become accustomed to hypertextual exchange tend to regard any impediment to free exchange as a serious wrong. The free development and dissemination of knowledge is more important than always giving precise credit where credit is due."

And here:

"Richard A. Lanham says that 'electronic information seems to resist ownership', and and Landow argues that 'from the point of view of the author of hypertext, for whom collaboration and sharing are of the essence of 'writing,' restrictions on the availability of the text, like prohibitions against copying or linking, appear absurd, indeed immoral, constraints".

So where do we stand on Internet Copyright Law? Should I feel guilty for posting the image above this article? I'm looking for answers.
Share/Save/Bookmark

22 comments:

Charlotte said...

Should you feel morally guilty? Probably not. Legally? I don't know.

The unfortunate thing about fair use is that litigation is so expensive, it doesn't really matter whether you have a good defense-- big corporations have more resources for aggressive litigation so it isn't economically worth it for you.

I don't know if you make any money off your blog, but if you do, I'm not sure it would qualify as educational.

There is not nearly so much money in art, so it's not likely you'll be sued. But I would guess the same paradigm would apply.

If they are dead, though, the art may be in the public domain, which is great.

I'm not sure how Internet law works regarding different countries, but I'm pretty certain you can't copy paste anything you want. Millions of people do rip art, yes, but that still doesn't make it legal.

Anyway, my general perspective is still "better safe than sorry", but of course, the chances that anything would happen to you are practically nil.

I do find it interesting that you think some artists would not grant you permission.

Also, regarding the no-copying/no right click codes, I think most people have abandoned those because they're annoying and ineffective (screenshooting works just as well).

sorry this was so long. enjoyed the essay. :)

The Sycologist said...

It is NOT breaking the law to copy someone else's picture on your blog PROVIDED you are NOT doing it for commercial reasons - i.e making money. The courts would almost certainly interpret it as "fair use".

http://en.wikipedia.org/wiki/Fair_use

If, however, BMW, say, used an image on their website without the permission of the owner, BNW could get in trouble.

However, to be couteous, it's best to put a disclaimer on your blog, saying you would immediately remove any image if the owner was unhappy it was on your blog.

Billy said...

hmm a great post. lots of fodder to digest and interpret. i believe that the net has changed everything. we can never go back to the old models. for sure the old system will fight and eventually grind their degenerative swords into plowshares. as an artist you will have to make a choice. i know you can make a living when you embrace the indie model. people will buy your work if it is honest and you are willing to share. art is for the people. and please buy a copy of my book. :)

Lethe said...

Good to hear some more opinions. Although I've placed ad sense on my blogs, I haven't had enough traffic to collect a dime. And I very well may take it off now that I know there is a "conflict of interest".

Chris Poirier said...

Hi Chris,

Fair Use is not as murky as some would have you believe. The Fair Use doctrine under US copyright law (there isn't such a doctrine in every country's copyright law) is meant to ensure that scholars can *quote* material in order to discuss it. Fair Use also covers use of copyrighted material in parody, as a means, again, of encouraging dialogue. Use of someone else's copyrighted artwork to beautify your own website (as you have been doing) is in no way protected and is, in fact, illegal. There's no grey area there at all.

That said, very few people who aren't called Disney are going to sue somebody who has no money, because it is a waste of time. But let's not mistake "they won't do anything" for "they are okay with it".

I'm a programmer -- I make my living off of my copyright. As such, I am perhaps a little more perturbed than your average netizen at the flagrant disregard for property rights on the net. In the end, if enough people disregard my copyright on the things I feel the need to protect, I can't make a living creating things, and I'll have to stop and go do something else. In a world run on money, if copyright loses its value, then there will no longer be professionals making money from their copyright.

Now, you can argue that there are other ways to make money from creativity, and I certainly won't argue with you there. My understanding is that musicians generally make their money from concerts, not recordings, so there may actually be very little disincentive from rampant theft of music. In my own industry, many programmers (and employers) are willing to look at software as a necessary tool, and so are willing to fund creation of open source software that few people make money from directly. But that argument is by no means universal. There are things that simply will not get made without the financial incentive of an enforced copyright. Further, there are people who will simply stop sharing their work publicly if the public feel the need to steal and (from their perspective) abuse their work.

With my writing, I'm happy to have people come by my website and read it. More than happy. But if I came across a website that was publishing my work -- and probably gaining ad revenue from it -- without my permission? You're bloody right I'd be pissed off. If a student decided to pass off my writing as their own to a teacher? Again, you're bloody right I'd be pissed off.

Copyright law was originally intended to ensure that discourse would happen. It was meant to give a creator some measure of control over their own work, in order to encourage them to publish it. It wasn't really intended to guarantee payment for ideas, but that side effect was recognized as necessary to encourage people to go to the expense and risk of publishing. It is the ability to refuse other people permission to make copies that gives a creator that power.

If you want to give away your rights, hey, great! That's what Public Domain (and Creative Commons licenses) are for. But copyright is assumed *by default* for a reason -- because it is a basic principle of human relationships that you don't get to assume somebody else's stuff is free for the taking. Frankly, it is highly unfair and *disrespectful* of other people's efforts to assume that, just because they published their hard work on the internet, they don't care how it gets used. You should absolutely and always get permission to use somebody else's work in public -- except in legitimate Fair Use contexts. And, if you want people to feel free to use your own work, you should state that up front, so there is no mistake.

Chris.

G.S. Williams said...

Chris Poirer has already commented quite well on how copyright laws work, and why they exist in society. I don't think I need to get into that.

However, I would like to comment on the cultural assumptions and shift that seems to be occurring. With the ease of file-sharing over the net for music (as well as text and pictures) today's youth take for granted that they can "share."

The prevalence of group work in the current educational model has created an environment where students don't feel guilty about plagiarism or cheating on tests, because the school system encouraged them to work with their peers so frequently. Their lives in and out of the classroom consist of constantly being in touch, whether through cell phones, text messaging, or MSN Messenger, or things of that nature.

The boundary line of the past, that you didn't copy, didn't cheat, and didn't steal, doesn't really exist as a concept in practice for this generation, and it's something teachers and parents are having a real problem with.

The really interesting thing is that this is a cultural shift that is reminiscent of the past. The concept of "authorship" -- that a writer owned their book -- didn't exist until more recently. Thomas Mallory didn't own King Arthur, he reworked old stories from folk tales and tradition. Shakespeare often borrowed characters and plotlines from other plays, and just added iambic pantameter and away he went.

In the past, you didn't own music or stories. You shared them from town to town, and then watched how your cultural appropriated and changed your creation. Morality Plays borrowed from the Bible, and the Bible also inspired the roots of most fairy tales. No one thought to own anything.

Contrast that with the 20th century's increasing legalities, like copyrights, and what you have today is two trends in history re-emerging and contending on the Internet.

Because of the ease of communication, I suspect that the speed of things will cause less legal intervention into such cases -- but whether the "sharing" that will ensue is stealing or not, I couldn't say.

Al Wood said...

I think you have to make a distinction between what in fact happens on the Web, which is widespread copying and sharing, and what is in fact legal, which is fair use, as has been mentioned. Agreed that trying to track down every image is very time consuming etc, but it is probably legally necessary. For everyday use, nobody is going to try to sue you, but if something is not under Creative Commons be very careful about using it, because, as I understand it, you could be sued. I understand that you are not doing it for commercial gain, but I think the comment by Chris is pretty accurate. Disclaimer: I'm not a lawyer!

NathanKP said...

Excellent post, Chris.

Since you aren't selling the works that you are copying I don't see any reason why it would be wrong.

As long as you do your absolute best to make sure that the original artists are credited that is fine. However, as you said it is often quite difficult to determine who the original artist was.

If someone complains about their work be used, though, you can always link to them then.

I agree with the Fair Use principal and make use of it on both my book review blog, where I use copyrighted book cover art, and my poetry blog which often uses images copied from various public domain sources.

Nathan

Lethe said...

Update:

After getting so much feedback from my readers, I started to really wonder if I was doing the right thing. So I sent this email to the person who owns the right to the image on this post:

Hello,

My name is Chris Al-Aswad and I'm a journalist. Currently I have one of your images up on my blog in an article discussing Copyright Law. If you want me to take it down I will. I just want to make sure I have your permission. Can I use your image?

Chris

And Job replies:

Hi Chris,

What a funny question considering the topic of your piece.
Sure you can use that!

and all the best,

Job

(mis)readings said...

Hi, Chris.

I sometimes fail to conform to this in my personal blog, but in Global Voices Online we have the following rules for adding pictures to blog posts:

"The most important point to remember is the issue of copyright. We must always make absolutely certain that any picture we want to reproduce is legally available for us to use.

"We can use anything which is issued under a creative commons licence. Otherwise we have to contact the photographer directly and get their permission to reuse the image - and make sure it is their original work and not someone taken by someone else."

Lethe said...

Yes, larger organizations will be more inclined to "follow the rules". From writing this article and doing some more research on my own, I've decided what I'm going to do. If you disagree anyone please tell me.

Right now it is a conventional practice on the Web to make an (IMAGE) tag at the end of a post with an image you used. The image tag simply provides the link to the original source material. No credits, nothing. Just a link. And this seems like a practical solution to the Internet copyright issue.

Will I ask every person to use their image? I'll probably ask more than I have, but I'm still going to rely on the image tag to provide my reference.

DustinM said...

Quoting G.S. Williams:
"The prevalence of group work in the current educational model has created an environment where students don't feel guilty about plagiarism or cheating on tests, because the school system encouraged them to work with their peers so frequently. Their lives in and out of the classroom consist of constantly being in touch, whether through cell phones, text messaging, or MSN Messenger, or things of that nature.

The boundary line of the past, that you didn't copy, didn't cheat, and didn't steal, doesn't really exist as a concept in practice for this generation, and it's something teachers and parents are having a real problem with."


This is a ridiculous assertion. It's a pretty large logic jump to state that because people are more in contact they have less ethics when it comes to cheating and plagiarism. It seems that every generation has to endure a finger waving from a previous generation. The idea that this, or any, generation is less moral about cheating and plagiarism is not based on any study, (but I will gladly rescind if you show me one.) The only difference today is that technology has changed which is giving people more opportunity to do so and that is increasing the rates of it happening, but it doesn't mean that previous generations would not have done the same if given the chance.

Music sharing has existed ever since Gen X invented the "mixed tape". Today, thanks to the internet, it is just done on a larger scale and has created a problem.

Cheating has always existed in schools. People going to "term paper writing" businesses in the back alleys of universities. Now, those businesses are on the web and making it easier. Plagiarism is the same way. You could always copy an article out of a magazine or book. There were always those who would try to get away with it. Now you don't even have to retype it, you can just copy and paste; Making it easier and more tempting. But just because it's more tempting doesn't mean people are proud or less ashamed of themselves for doing it. Universities still fail and\or expel students caught doing either of these things. It is still a point of shame and is not something most "kids" would brag about doing.

Anyways that ends my rant defending my generation's morals. Now to the topic at hand.


Lethe,
I'm glad that you're willing to start seeking permission for posting other people's images on the web. As discussed on my blog. My argument for this isn't moral, it is legal. The legal system does not reflect that shared learning values of the internet - yet. Everything is copyrighted by default. Even if you put it a picture on a flyer and give it away to a million people, it is not legal to redistribute the image yourself without permission.

If I was in charge of rewriting the law I would simply reverse the "default" status of pictures, videos, music, and text on the internet.

I would change the statue to say anything posted on a website by the original owner is considered public domain unless explicitly stated otherwise.

I think it would better reflect the spirit of sharing on the internet and get rid of a lot of murky areas of copyright law. Those murky areas being where bloggers such as yourself depend on staying out of trouble by hoping that the copyright owner doesn't enforce his copyright. It would also still give people the ability to copyright something if they wanted too.

But, until the day the law changes, if you post someone else's picture without permission and isn't explicitly public domain, you are violating the (U.S.) law regardless if you give credit or not.

Maggie said...

I guess the issue I have with people taking images is that then the owner has no control over the use of those images. I am all for sharing, and have no complaint when people post my photos of work I have done and discuss the work, but I have had people misuse my photos. ONe example was a guy who used a photo of an item I had made of sterling silver in an article about lead imports from China. My item was made in the US from sterling, so no not lead from China!

Lethe said...

I perfectly understand your point. Misuse use is bound to happen. This is one of the drawbacks of file-sharing also. People get viruses. But misuse seems to happen anyways, whether photo-copying is legal or not, accepted or unaccepted, loved or hated. I do not promote image manipulation. But I think linking to an image after using it on your site should be sufficient reference for today's web environment.

seekngsane said...

No need for guilt if you use someone's work on your blog or site and credit it's author or artist. Then they get a back link to their site which gives them more traffic and Google likes this too so not sure why they would mind! For the most part, none of us are getting rich writing blogs on the internet and I know of very few who are making money legitimately here no matter what they claim! Most artists who are concerned about copyright and infringement and others' using and selling their work as their own, write their name across the photo or painting so that one would need to buy it.

"copying is the best form of flattery"

-Artzstuf

Chris Poirier said...

Hi Chris,

FYI, your "link directly to the image on the original website" idea is one of the few forms of linking that is (probably) illegal under US law -- it is a form of "deep linking" that has been successfully litigated. It is also far nastier than simply stealing the image -- not only are you stealing the work product, you are also stealing bandwidth, which somebody else has to pay for.

As for a previous commenter who suggested crediting the image is plenty, well, that's laughable. It only indicates you *knew* the image wasn't free for the taking and you took it anyway. Good luck on defending against that in court, were you to be sued.

Chris.

Lethe said...

I didn't mean: Make the image link to the site. I meant, use the image at the top of the post and then at the end of the post create (Image) and make that link back.

But you're doing a good job of scaring me now!

Chris Poirier said...

Hi Chris,

Well, like I said before, it's unlikely any creator is going to sue somebody who isn't obviously making money from their work (or who doesn't obviously have money), because lawsuits are expensive.

However, if you want to be in keeping with both the letter and the spirit of the law -- and if you want to respect the people who create the artwork you appreciate enough to want to use -- just ask for permission first (or use artwork that is in the public domain or is otherwise copyright-cleared). I expect you will find most artists will be flattered that you asked, and will want little more than the link back in return. Those that don't, well, that's their call to make, and I'm sure you'll be able to find something else to use instead.

Chris.

Five Foot Nothing said...

I've just come across your blog from Twitter and I really like it. I know this post was written seven months ago - but it was interesting nevertheless.

I'm from Australia and instead of fair use, we have fair dealings. The difference is, fair use allows a writer/researcher etc to use copyrighted material for criticism/review, judicial proceedings, news reporting, parody or satire or research/study. While fair dealing is the exact same thing - but you need to credit the article.

This means on the internet, depending on what the owner wants - you must credit the author, provide a link to where you found the source and for some, provide the copyright sign.

The internet is changing at a rapid rate and laws weren't meant to be changed at a continuous rate either. Hence, many users are very confused when it comes to internet etiquette.

Though what stays the same is this, a copyright law does not protect ideas and concepts in their own right. An idea is ONLY protected under Australian copyright law if the material is original, sufficiently developed and detailed and reduced to a material format (i.e. written, audio)

If you really want to protect lets say a television or an internet format and you produced it with a distinctive name, definitely register the name as a trade mark.

Lethe said...

Five Foot: Thanks for your response . . .

Sounds like Australia has a more established system of law around Internet copyright. Copyright laws in the US are frequently sacrificed to trends in the marketplace.

The Internet as you say is changing at such a rapid pace. And laws move rather slowly--possibly the twain shall never meet!

On a serious note, I think we'll see more regulation not less. Simply on the basis of all our personal information, medical history, bank statements, etc. will be somewhere on the Internet.

Needs to be more law--and yet the landscape of the internet is as wild and rugged as the landscape of the world. How to rule over such a beast?

gabry said...

I am a graphic designer, I draw graphics from scratch, each one has been created from my imagination. It takes me time and hard work to draw every detail,. This is what I do, it is my job and it helps me pay the bills. I strongly agree with Chris Poirier, it is totally disrespectful towards the artists, that create things for a living, to go on and take them just because they are there. If this was the case, we might as well shut down our site, and go do something else. People don't even stop to think, that they are abusing of someone else's hard work.

My artwork is displayed on my site, that is my store and home, because I pay for the server, and the domain, for my business, in order to display my artwork. Exactly as the shop owner pays rent for a store to display on shelves, items he sells for his business.
Just because they are there it doesn't mean you can take them and use them without paying for them or permission.

Unfortunately many believe that, if they can save it on their hard drive then they can use it on their site or where ever they feel, just because it is easy. Even if you give credits, (and many don't) does not make it ok. It is like saying, "Hey, I went to so and so's shop and took this." You are mentioning where you got it but you never got permission, nor paid for it.

Often they don't even know where it comes from, they are not interested in knowing anything about the original artist.

If your automobile is parked in front of your house, this does not mean just because it is on a public street, I can just go on and take it, now does it?
This is the same thing.

I do not belive in innocence, there is no innocence in taking things that do not belong to them in the first pace. Instead of taking time out, surfing the net to see what they can take, it would be best to surf for information, concerning copyright laws, there is a lot of information out there, they only have to look for it, unfortunately many are not interested in reading, they only like to surf, copy and paste or download. It is more convenient, much less effort, then who cares if that person has worked days or even years to create what others place on their site with just one simple click.  

Lethe said...

Gabry:

Please check out this post and watch the Larry Lessig Video. You'll see where I'm coming from.

Larry Lessig Video Post