How USCO Certification Could Help Flickr and Similar Sites

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From what you could see in the Flickr case study in my last post, It’s important for sites such as Flickr to explain the implications of certain photo licenses. For instance, when you sign up they should take you through a tutorial on privacy and copyright law so that everyday users are informed and aware of the piracy and loopholes that are out there.

^^These are the choices that you get for licensing your photos on Flickr^^

As of the now the first option (All rights reserved) is just a scare tactic that reiterates the notion that the second that a photo is tangible it belongs to whomever created it. However, it would not hold up in court.

My suggestions would be for the USCO to certify Flickr and any site that want to offer official United States Copyright Office registration as an additional service for their paying members their badge of approval. This would give a lot more merit to the first option on the list above and would back up your copyright infringement claims in court. It would also strengthen Copyrights in general because people could more easily file lawsuits and exercise their rights without taking a personal financial hit.

That service along with a photo tracking service such as the one offered by www.picscout.com

Today the internet is a place where over a hundred million dollars worth of photography is stolen and used for commercial purposes every year. A change needs to be made in either the copyrighting process or in the law itself to protect the creators of original content. This is my solution. Are you listening Maria A. Pallante?

The Flickr Problem (Case Study 2)

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Flickr is one of the top photo sharing websites online today. It’s a fun and easy way to upload and share images with family, friends and the Flickr community. However, it has been in the news quiet a few times for the misuse of the creative commons licensing that Flickr offers it’s members to utilize. The main issue in my eyes is that people don’t understand their rights when posting to websites like flickr.

This New York Times Article describes one of many cases that revolve around the problem with Flickr and Creative commons licensing:

One moment, Alison Chang, a 15-year-old student from Dallas, is cheerfully goofing around at a local church-sponsored car wash, posing with a friend for a photo. Weeks later, that photo is posted online and catches the eye of an ad agency in Australia, and Alison appears on a billboard in Adelaide as part of a Virgin Mobile advertising campaign.

Four months later, she and her family are in Federal District Court in Dallas suing for damages.

On the billboard, Alison’s friend has vanished and so has the Adidas logo on her hat. Her image is accompanied by a mocking slogan — according to the ad, Alison is the kind of loser “pen friend” (pen pal) whom subscribers will finally be able to “dump” when they get a cellphone.

The conduit for this unusual bit of cultural exchange, it quickly emerged, was the Flickr photograph-sharing service, which is owned by Yahoo. The image had been uploaded to the site by the photographer, Justin Ho-Wee Wong, Alison’s church youth counselor.

Much more than a virtual attic for old photographs, Flickr has flourished as a gathering point for friends and family who want to keep in touch with one another’s lives — a social network with photographs as the organizing principle.

The site simultaneously has become a global clearinghouse for images; at last count, it had more than a billion of them. With its extensive cataloging, the site allows users to search through strangers’ digital photo albums for topics, faces or locations that interest them. That includes, apparently, Australian ad executives holding a casting call for exuberant young Americans.

There are many accusations of people misusing Flickr photographs, including the case of an Icelandic woman who says an online gallery based in Britain sold her work without her approval, and a German photographer who says a right-wing Norwegian political party used a photo of her sister in its materials also without permission.

A most recent example concerns Lindsay Beyerstein, a Flickr member, who says she sent a cease-and-desist letter to Fox News last week over the use by “The O’Reilly Factor” of her photograph of a blogger; the photo can be viewed at Flickr where Ms. Beyerstein has reserved all her rights. Fox News said it had not received the complaint yet.

In another Flickr twist to the Virgin Mobile case, it was a Flickr member from Adelaide, Brenton Cleeland, who first noticed the ad on Churchill Road and, naturally, photographed it to share on Flickr. In the spirit of a site populated with amateur photographers in search of an audience, Mr. Cleeland wanted to spread the news of Mr. Wong’s success. “I wonder if he knows that his photo is being used here,” he wrote in a posting, adding, “Anyway, congratulations!”

Alison, however, was the first to chime in online, and was hardly as pleased: “Hey that’s me! no joke. i think i’m being insulted.”

Chang v. Virgin Mobile USA is not the typical intellectual property rights case. A prolific member of Flickr, Mr. Wong has more than 11,000 photographs there that anyone with the time or inclination could page through. And, until recently, those photographs carried a license from Creative Commons, a nonprofit group seeking alternatives to copyright and license laws. The license he selected allowed them to be used by anyone in any way, including for commercial purposes, as long as Mr. Wong was credited.

Instead, the case hinges on privacy, the right of people not to have their likeness used in an ad without permission. So, while Mr. Wong may have given away his rights as a photographer, he did not, and could not, give away Alison’s rights. In the lawsuit, which Mr. Wong is also a party to, there is an argument that Virgin did not honor all the terms of the nonrestrictive license.

(Virgin Mobile USA, in a statement, did not address the issues in the lawsuit but said that, as a “independent entity from Virgin Mobile Australia,” it had been “erroneously named” in the suit. An e-mail message to a Virgin Mobile Australia spokeswoman was not answered.)

Damon Chang, Alison’s brother, wrote in an e-mail message from Taiwan that he “personally sent Virgin Mobile a complaint letter” asking for an explanation. “They responded by saying they are ‘promoting creative freedom,’ that they didn’t do anything wrong,” Mr. Chang wrote. “I take that as, ‘We didn’t do anything wrong, hence we could do it again.”

The lawsuit, filed by the Changs’ lawyer, Ryan Zehl, from the Houston law firm Fitts Zehl, also names Creative Commons. Mr. Zehl said, “as the creator of this new license, they have an obligation to define it succinctly.”

He said that the term “commercial use” was too vague to inform users of the license and that it was incumbent on Creative Commons to raise the issue of the rights of the people who appear in the picture.

Lawrence Lessig, the Stanford law professor who was served the papers on behalf of Creative Commons, said he was sympathetic to the Changs’ plight.

But, added that, “the part about us is puzzling. It says we failed to instruct the photographer adequately, but the first question is, ‘do you want to allow commercial uses?’”

As for giving more advice about the rights of the subjects who appear in photographs, Mr. Lessig said that Creative Commons has to be careful not to provide “what looks like legal advice.” But, he added, “this photographer did nothing wrong when he took this photo of this girl, and posted it on his Flickr page. What he did wasn’t commercial use, which triggers the legal issues. If there was a problem here, it was by Virgin.”

In the world of creative works, photography has always been in a category alone. The camera was seen as a “soul stealer” in its infancy, and the fact that a photograph was a copy of reality intrigued theorists like Susan Sontag, who wrote presciently in “On Photography” (1977) about the attraction to photographs felt by ad directors.

“Photography does not simply reproduce the real, it recycles it — a key procedure of modern society,” she wrote. “In the form of photographic images, things and events are put to new uses, assigned new meanings which go beyond the distinctions between the beautiful and the ugly, the true and false, the useful and the useless, good taste and bad.”

She concluded, “In the form of a photograph the explosion of an A-bomb can be used to advertise a safe.”

Possible Solution

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Dear Mrs. Pallante,

I know that the points brought up in my previous post by Jonathan Bailey must be weighing on you heavily, or at least I hope that it is.

The Electronic Copyright Office cost $52 million of tax payers dollars and as a result the time it takes to get a copyright certificate went from 6 moths to eight months and it’s only getting worse…

Attribution Noncommercial Some rights reserved by Will Hastings

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Something is seriously wrong here.

Might I suggest that you allow private companies the ability to file copyrights on their sites. They would do this by becoming certified by the Copyright Office initially and take over from there.

Consider the following potential benefits:

  1. Decreased Cost: With more entities competing for copyright holder business, costs would go down. Since processing costs would be minimal, theoretically, prices would fall sharply.
  2. Increased Speed: With the processing distributed among hundreds of organizations, the backlog would disappear.
  3. Better Simplicity: Registrars would not have to serve all kinds of copyright holders, they could focus on photographers, writers, musicians, etc. and could greatly simplify the registration process for each. They would also be free to use AJAX and other tools to make the process faster, easier and more reliable.
  4. Technological Advances: Registrars could find great ways to innovate the process. RSS Registration? Possible. Also, if Heller’s proposal is followed, a publicly-accessible database can lead a variety of search and information tools.
  5. Better Enforcement: Such a system would encourage more people to register their works, enabling them to sue for infringement and thus copyright would be taken more seriously as an offense and the playing field between major copyright holder and user would be more level.

By outsourcing the responsibilities of the copyright office you take the problems of the antiquated United States Governments way of doing things. However, they would also lose the monopoly that they hold in world of Copyright application fees.

There are only three ways to go about this.

  1. Continue using the broken system and continue to fall exponentially behind in registering new copyright requests.
  2. Spend more of the tax payers hard earned cash to try and fix this horribly broken system.
  3. Outsource the process to the online world, a world filled with intelligent forward thinking people who could without a doubt fix this broken system at the expense of your copyright monopoly.

The last option is the only option in my mind

Keep in mind these are just suggestions and I’m sure there are some holes but at least they are progressive ideas that can be built upon and perfected.

Problems Within the Electronic Copyright Office

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This work by Jonathan Bailey is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

When the U.S. Copyright Office’s Electronic Copyright Office (ECO) system went online in July of 2008, it was supposed to revolutionize and modernize the way the USCO did business.

However, as a recent article in the Washington Post has pointed out, the results have been less than stellar.

Since the launch of the ECO system, which reportedly cost $52 million to create and took several years to develop and test, the time it takes to get a copyright registration certificate from the USCO has tripled, up from 6 months to a whopping 18. This means that, if you filed a registration today, you would not get your certificate until at least November 2010.

Even worse, the USCO is only falling farther behind. It has the capacity to complete only 7,000 registrations per week but receives over 10,000. That means every seven days it works, the USCO falls behind another three and there is no end in sight. The number of registrations keep increasing the the USCO’s capacity keeps falling farther behind the curve.

But how did this happen and what does this mean for the future of the USCO? The answers aren’t very clear but they are definitely very painful.

Redefining “Epic Fail”

The new ECO system was supposed to make the process of filing registrations and receiving confirmation significantly easier and faster. It was supposed to save copyright holders time and money (by reducing the fees on electronic registrations from $45 to $35) and increase the capacity of the USCO to meet rising needs. So what went wrong?

The new system has been plagued with two separate issues. The first was a tactical error. The USCO assumed that the vast majority of copyright holders would use the electronic system and scuttled the old paper system, which allowed processing of paper registrations within 6 months. Instead, the current paper system requires physical copyright registrations to be entered by hand, a time-consuming process. (Note: The USCO does have a form CO that uses a barcode system, however, it is the older forms, such as TX, that are still the most popular due to their familiarity.)

This is the reason for the extreme delays on paper registrations and those delays have spilled over to electronic ones, which currently take at least six months (though it was supposed to only take one).

The second problem is, to be quite frank, that the ECO system sucks. Not only is it difficult to use, time consuming to register with and outright ugly, but the system has a nasty tendency to crash (both on filers and on those trying to process registrations) and registrations seem to disappear within it.

The system is a complete failure. At best, the system was obsolete, overpriced and poorly-designed. Considering that private non-repudiation systems such as Numly, MyFreeCopyright and Copyright Registry all have more features, easier interfaces and better compatibility with existing Web technologies, the ECO system is a multi-million dollar waste.

However, the ECO system has not just made copyright holders wait longer and and become a multi-year inconvinience, it is having a direct impact in the courtrooms. At least one case, Specific Software Solutions, LLC v. Institute of Workcomp Advisors, LLC, has been thrown out on jurisdictional grounds because the copyright registration had not been processed, even though, by most estimations, it had long since been filed.

This is having an extreme negative impact on copyright holder’s ability to protect their works in court and even the Library of Congress’ inspector general says that the backlog “threatens the integrity of the U.S. copyright system.”

In short, when the USCO flipped on the ECO system, the entire copyright registration system came crashing down. It’s been an open secret in copyright circles and, now, almost a year later, it has reached a point where no one can ignore it.

The USCO’s Fixes

From the current crisis, only two things are clear:

  1. The status quo can not stand.
  2. The USCO can not provide the solution.

The USCO, in its defense, is trying to fix the problem. First, they have brought in 17 more copyright registrars, bringing the number up to 115, in a bid to increase the amount they can handle. They are raising the price of paper registrations $20 to $65, while keeping electronic ones at $35, in a bid to steer more to the electronic system. Finally, they claim to be working on an overhaul of the electronic system that they hope will fix the problems that have plagued it.

Unfortunately, none of it will work.

The 17 new registrars only equal a 17% increase in capacity at a time when they are a full 40% behind. It would take at least another 20 registrars, in terms of manpower, to keep up with the current demand, saying nothing about future. Second, raising the price on the paper registrations will have no effect so long as the electronic system is difficult to use. Where I can file a paper registration in a few minutes via paper (especially via a Short Form TX), it can take hours to do one online. Paper filing is still a better deal.

Finally, the overhaul of the system is unlikely to address the major problems with it. Though it may fix the bugs and kinks, it seems unlikely that the new system will be easier to use or less confusing.

There is a good reason why most copyright registration services still use paper forms, in particular the old ones, they are a better deal, more familiar and more reliable. Tweaks to the ECO system and a $20 price increase will not change that.

The copyright registration, barely working before the ECO system, is now almost hopelessly broken.

Poster Child for a New Type of Government Agency

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Although the Copyright Office isn’t used by American citizens even close to the amount that the United States Postal Service, it is a good example of an old government institution that isn’t serving it’s public as well as it could.

Attribution Some rights reserved by dcJohn

The USPS does get some taxpayer support. Around $96 million is budgeted annually by Congress for the “Postal Service Fund.” These funds are used to compensate USPS for postage-free mailing for all legally blind persons and for mail-in election ballots sent from US citizens living overseas. A portion of the funds also pays USPS for providing address information to state and local child support enforcement agencies.

Under federal law, only the Postal Service can handle or charge postage for handling letters. Despite this virtual monopoly worth some $45 billion a year, the law does not require that the Postal Service make a profit — only break even. Still, the US Postal Service has averaged a profit of over $1 billion per year in each of the last five years. Yet, Postal Service officials argue that they must continue to raise postage at regular intervals in order make up for the increased use of email.

What a revamp of the Copyright Office could mean:

I’m assuming as a government agency the U.S. copyright office gets federal funding for employees as well as a physical location in order to accounts for all of the copyrights that come through the door. The new website and Electronic Copyright Office will help to automate the system and eventually overtake the traditional mail in option. Therefore requiring less space, less staff and less government funding for day to day operation.
Instead of profiteering and increasing costs for the citizens of the U.S, like the raising of postage in the United States Postal Service. This government agency can think progressively and lower the costs of Copyrighting to Americans by pushing this online initiative and requiring less staff and physical space. Operating at the most effective and efficient capacity is the main goal of the government right?

The Initiative

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My proposition is that the current Register of Copyrights Maria A. Pallante addresses the problem of the archaic online copyright system that has been put in place in these ways.

By January 1, 2013

1.)  Redesign the copyrights.gov website – It is severely outdated, incredibly boring and uninviting.

U.S. Copyright, Homepage, Fix, Design, Porblems, Old, TemplateWhy does it need to be redesigned? It’s not just that it isn’t designed well, it’s not designed at all. All of the information is there, however, there’s no rhyme or reason to the layout. Nor are there any visual or design elements to speak of. It looks like a template and there’s far too much information on the homepage. Overall it’s just the opposite of a user friendly experience.

2.)  Build a new eCO (Electronic Copyright Office) – The current electronic copyright office is just as outdated and hard to navigate as the website.

"Electronic Copyright Office", Problem, fix, Solution

This is what the Electronic Copyright Office registration page looks like

These are the steps that you must complete in order to register a work. To complete each field you are taken to a separate page and are required to fill out redundant forms that are written in a wordy legal, governmental, bureaucratic fashion. I don’t understand why they couldn’t just use one practical interactive form. At times I found it hard to understand and the thing that baffled me most was that I couldn’t figure out how or if you submitted the actual work. Then I figured out that you don’t get to submit your work until after you pay them their one time use $45 application fee. The entire process seems to be set up for people who have already fallen victim to copyright infringement. For example instead of asking you if you want to register a new work it asks you if you would like to “open a new case”. It’s not a proactive system and it could be costly if you continue to register your works every three months.

3.) Collaborate with companies like Google and Flickr to make the Copyright Office a modern force to be reckoned with instead of an archaic establishment that relies on paperwork and months of delay and red tape in order to be effective. I’ll go into more detail in later posts.

Obama “Hope” Image Copyright Scandal (Case Study 1)

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Copyright infringement is an all too common problem that artists deal with on a daily basis. Sometimes the cases are small and petty but in this case, Shepard Fairy created an American icon that has become ubiquitous with the Obama Campaign and was accused of infringing the copyright of the Associated Press. Fairy claims that he had altered the idea behind the original image enough that it should be considered fair-use of the copyrighted image. I’ll let you be the judge.

New York Times Article on the lawsuit:

The Associated Press and the artist Shepard Fairey have settled their copyright battle over the unlicensed use by Mr. Fairey of an A.P. photograph of Barack Obama in the memorable 2008 “Hope” poster. The A.P. announced the settlement on Wednesday.

Under the agreement, The A.P. and Mr. Fairey are to share the rights to make posters and merchandise bearing the “Hope” image, which was based on a photo taken by Mannie Garcia in 2006, and collaborate on a project in which Mr. Fairey will create a series of images based on A.P. photographs. There was also an undisclosed financial settlement.

Perhaps most significantly, the two sides agreed to disagree on whether copyright law was infringed. As part of the settlement, neither side conceded its position.

The Associated Press asserted in February 2009 that its copyright had been infringed and that any use of the image required its permission. It sought credit and compensation.

Mr. Fairey then sued The A.P., asserting that he was entitled to a fair-use exception to copyright law, under which some limited reuse of copyrighted materials is permitted. He also argued that he had effectively transformed the work into an idealized image “that created powerful new meaning and conveys a radically different message.”

The A.P. countersued in March. By July, it had become a three-way battle, with Mr. Garcia asserting that he owned the original photograph, not The A.P., since he was working temporarily for the agency at the time. He withdrew his lawsuit last August.

DAVID W. DUNLAP

Why Copyright Your Work?

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Although the Copyright Act protects you the minute your creative work is in tangible form, a lot of the time it is prudent to officially register your works with the U.S. Copyright Office.

Reasons
to Register

Attribution Noncommercial No Derivative Works Some rights reserved by William & Mary Law Library

Why spend the extra money if Copyright Protection is immediate and automatic?

  1. ability to sue; and
  2. statutory damages.

You can’t actually sue someone for infringing your copyright until you have registered your work with the Copyright Office. If you register your work prior to the infringement, or three month from the date of first publication , you can collect statutory damages from the person who infringed upon your copyright. If you don’t you are left to pay the actual damage (e.g. any money lost from being taken advantage of and/or legal fees)

Dangers of
Non-Registration

As an exercise, assume that this web page has not been registered. It is however in tangible form, therefore it’s protected by copyright. If someone was to copy and paste my content verbatim and put it on their website, my copyright would be infringed upon. In order to sue that person or business for copyright infringement, my web page would have to be registered with the copyright office. Furthermore, if I was in a hurry to file the lawsuit I would have to pay $760 in special handling for a single claim in order for them to expedite their services.

Assuming that the offending party didn’t have any valid defense such as fair use, then I would be able to collect my losses, plus any profits that they gained by infringing.  Consequently, I would end up paying attorneys fees for my trouble.

However, if I had registered this page within three months of its first publication, then I would be able to recover statutory damages in lieu of my virtually non-existent actual damages. Statutory damages can be awarded up to $100,000, plus attorney fees and court costs, depending upon the nature and malevolence of the infringement. As you can see, this would certainly affect your decision making process when deciding whether to sue someone for copyright infringement.

My Mission

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Vinnie Finn, Photography, Copyright

The instant that you snap a photograph you have a copyrighted image. However, in order to file a copyright infringement lawsuit against someone who steals your image(s), you must have them registered with the U.S. Copyright office. Ideally you should register any image that you think could be stolen (e.g. images that are accessible to the public) before they have been stolen; it will make your life a lot easier if you ever have to deal with a lawsuit.

In America, a copyright is registered through the U.S. Copyright Office in Washington DC. It will cost you $45 per application (paper form) and $35 per application (electronic form), each application can have as many photographs as you’d like as long they are submitted on the same application.

Although they say that, “a key part of their initiative is providing the opportunity to register your works online…” the system is outdated at best and the website and online submission site need serious redesigns/updates. With the advancement of modern technology and computer applications there should be no excuse for anyone to not have their works properly copyrighted.

I think that if the copyright office structures their website in a similar fashion to popular online photo posting websites such as flickr, the overall process will be a lot easier, more accessible and will benefit both the users and the copyright office. By setting up a site that is easy to use and partnering up with sites such as flickr to spread awareness of copyright infringement and the importance of registering your images with the online copyright office the profits will be huge. There is little to no collaboration with the online publishing sites in term of Copyright education for their users.

My aim is to convince the Register of Copyrights Maria A. Pallante to have the archaic U.S. Copyright Office website and the registration process redesigned so that every photographer has control over their work.