A media company demanded a license fee for an Open Graph image I used(alistairshepherd.uk) |
A media company demanded a license fee for an Open Graph image I used(alistairshepherd.uk) |
The main difference I see here is the author got bit by an automated tool. It really should be more or less considered a clerical error. I don’t see how paying $1000 is easier or cheaper than just showing up to court if asked and arguing your use was both easy to occur by mistake and didn’t represent anywhere near that value. This strategy has several advantages, among them being not having to pay until the court has ruled, which is a huge deterrent to shops like this. Just being willing to go to court automatically lowers the price you’ll end up paying. But if you don’t show that willingness you’re paying full price, even with the fakery about the 10% discount.
I also thought that maybe the person was the scammer, setting up a website where they could post what someone else did in their situation.
Theyve been hitting YouTubers like Mohak Mangal, Nitish Rajput, Dhruv Rathee with copyright strikes for using just a few seconds of news clips which you would think is fair use.
Then they privately message creators demanding $60000 to remove the strikes or else the channel gets deleted after the third strike.
It s not about protecting content anymore it's copyright extortion. Fair use doesn't matter. System like Youtube makes it easy to abuse and nearly impossible to fight.
It s turning into a business model: pay otherwise your channels with millions of subs get deleted
[1] https://the420.in/dhruv-rathee-mohak-mangal-nitish-rajput-an...
I really like this aspect of US copyright law. I think the recent Anthropic judgement is a great example of how flexible US law is. I wish more jurisdictions would adopt it.
Are they really? I've been believing the opposite. What fair use does US allow that India doesn't?
It's always been about copyright extortion.
Bingo.
Ianal but it feels like if you provide an image via an open graph link, you’re implicitly licensing that image to consumers of the Open Graph protocol to be displayed alongside a link/link metadata.
If the media company didn’t have the rights to relicense that image for consumption via Open Graph and/or the original licensor didn’t want their images appearing via Open Graph, that media company shouldn’t be using Open Graph.
That is such a frustrating situation. I hope the courts would have ruled in your favor but I understand why you chose not to test it.
Things did not end well, for that lot.
I think I'd be willing to pay $800 of my time to disincentivize that behavior.
Although it's an interesting and relevant writeup/intellectual property conundrum, I'd feel like the move would have at most been to pull the archive offline and delete or mark the email as spam, assuming the unlikely case that it's not actually automated extortion. There's a few likely angles I thought about hypothetically having taken, but ultimately I firmly don't believe my lack of having read an email or my actual mail constitutes having taken any action at all. If I was interested enough in the problem, I'd just let them decide to track me down some other way afterward. Things are only as enforceable as they are.
That said, I've had collections calls ending up in my voicemail for years, and they are sure as hell not getting paid and haven't tried to take me to court afaik.
Edit: Incidentally, I quite like the dynamic background graphic. A neat art style and reminds me of recent macos backgrounds.
From what I can gather, it sounds like his copyright exposure came up when he exported his Twitter archive, including the image in question, and hosted (and, crucially, published) it on his own server. Am I thinking about this the right way?
In this case the Tweet would have been
> TWEET > linked article with open graph image
When exported the author then returned that same open graph info on their personal site, thus rendering a copyrighted image without a license.
As such, the OP was under the impression the image was free to use in that context. Only once they were informed that was not the case did they become libel. They could have then licensed the photo for the 20 pounds and been done with it. Or just deleted the link off of their website (and also been done with it.)
Even in English law there's 'intent'. The OP had no intent to offend and shouldn't have paid; by feeding the troll they've unfortunately done the world a disservice, although I do empathize with their decision-making.
I don't think the troll would have gone to court, a negative precedent would have been bad for their 'business'.
That can't be how it works. The OP had a responsibility to check the that images that the OP published were adequately licensed. The rights holder makes a claim against the publisher (the OP), and the publisher can make a claim against their supplier (the newspaper.) The judge would then divide the amount of responsibility between the two in some proportion.
Only within reason. The archive was published in bulk. I don't think there's any expectation every single post in an archive is checked prior to publication.
But more than that, even had the author explicitly checked the thumbnail had been provided by the original publisher via Open Graph. Effectively the original publisher publicly provided this image and suggested that people use it in this manner. There was no realistic way for the author to become aware that the copyright owner did not consent to this use until receiving the notice.
Like the "media company" said, I think you should make a claim against the site you linked to. Their redistribution of the image through a protocol meant to show up embedded on other people's sites is an implicit claim that they have the right to sublicense the image.
edit: the claim would be a favor. Just ask them for what you paid, and charge them for your time. They'll pay you with petty cash and get their lawyer to come up with an image policy to avoid difficulties in future.
Anyway, websites don't like hearing that people can get sued for linking to them.
basically they're not going to get anything from Twitter with their army of lawyers but once you hosted it on your own website you became personally liable to hold a license for any images your site displayed.
Fair Use - Internet Publication - https://en.wikipedia.org/wiki/Fair_use#Internet_publication
> "... the Ninth Circuit Court of Appeals ... found the purpose of creating the thumbnail images as previews to be sufficiently transformative"
It kind of irritated me that he immediately capitulated in a case that was obviously frivolous. Then posted it; has he no shame?
One of the good things (maybe) about AI-generated images, is that you could generate an image that only exists for your article. The rub is that the generator may be giving you an image that is close enough to a copyrighted one, that you could still be sued.
I think that fonts could have the same problem.
Do sites that display Open Graph images generally hotlink them or copy and rehost them?
However, republishing that preview elsewhere is still publishing and the author of the post seems to have missed that. Instead he should just publish the link to the media site and let the client that browse his archive access (download) the OpenGraph preview by itself.
Twitter/X does that republishing, but having the license for that republishing is their problem.
I'm curious to know if that preview was part of the Twitter archive. Because it doesn't qualify as "your" content.
I dealt with them before. Just ignore them and stop opening email. They asked 800 euro for 2 small images. Since a OP is in UK the tought they can do triple price.
In the US usage like this may be considered "Fair Use", however UK copyright law is less generous in its "Fair Dealing" and associated exceptions to copyright[1].
This is a problem when standards are pushed by US tech companies but don't consider the rest of the world.
What would have changed? This isn’t a problem that can be solved in a protocol. Even if a field was added for license information, it wouldn’t actually constitute a license if someone put the wrong info into the field (claiming to license content they didn’t own). It also wouldn’t have solved anything if there was an implied license for use on, e.g., social media sites as the author re-hosted it on their own domain.
I don’t think it’s fair to blame the tech companies for making a protocol. It’s up to the users to confirm their country allows the usage.
> In the US usage like this may be considered "Fair Use", however UK copyright law is less generous in its "Fair Dealing" and associated exceptions to copyright[1].
> This is a problem when standards are pushed by US tech companies but don't consider the rest of the world.
Similarly, the German analogue to the US-American copyright laws (Urheberrecht) has no concept of fair use (meaning that a lot of memes that are based copyrighted material are actually illegal under German law), but on the other hand, as far as I am aware (IANAL), there is more explicit permissions for citations (Zitierrecht) in Germany (instead of relying on "vague" concepts such as fair use), meaning that I conceive at least fictional situations (but IANAL) where it might happen that quotations of copyrighted material are legal under German law, but not considered to be "fair use" under US copyright.
"Soy faced techblogger with no spine funds copyright troll and/or scammer"
However:
* it would at least help to go under the radar of some scrappers which don't run JS.
* not serving the infringing content might give some more weight for defense of a fair use position before a court (but IANAL)Look at the famous Authors Guild, Inc. v. Google, Inc. case. Google scanned every work they could put their hands on and showed excerpts to searching users. Copying and distribution on an incredible scale! Yet, they get to argue that it won't substitute in the marketplace (the snippets are too small to prevent people buying a book), it's a transformative use (this is about searching books not reading books), and the actual disclosed text is small (even if the copying in the backend is large scale).
On the other hand, fair dealing is purpose specific. Those enumerated purposes vary across jurisdictions and India's seems broadish (I live in a different fair dealing jurisdiction). Reading s52 your purposes are:
- private or personal use, including research
- criticism or review, whether of that work or of any other work
- reporting of current events and current affairs, including the reporting of a lecture delivered in public.
Within those confines, you then get to argue purpose (e.g. how transformative), amount used, market effect, nature of the copyrighted work, etc. But if your use doesn't fall into the allowed purposes, you're out of luck to begin with.
I'm not familiar enough with Indian common law to know if the media clips those youtubers you mentioned should fall within the reporting purpose. I'm sure the answer would be complex. But all of this is to say, we often treat the world like it has one copyright law (one of the better ones) when that's not the case! Something appreciated by TFA.
The big one being transformative use is fair-use in the US but not India.
Like imagine the thumbnail were fetched every time a link appeared in someone's Facebook/Twitter feed. That could be tens of millions of hits easy.
Why? Just because it’s onerous doesn’t mean you don’t have a duty to do it.
If the guy had copy and pasted the whole news article and republished it himself, I doubt many people would try to argue that he hadn’t infringed the copyright of the newspaper. So that thought experiment covers the idea that something can be published legally without automatically granting a licence to reproduce the content.
The question here hinges on whether using opengraph tags on an article implicitly sublicenses the image for reproduction. There’s a solid argument that it does, but the author chose not to test that so we don’t know.
If the answer is yes, then it’s the newspaper who are liable for the infringement by sublicensing the image in a way that’s not compatible with their original licence (I assume! At this stage, we don’t know if the newspaper DID actually have the right to relicense the image for reproduction or not).
If the answer is no, then the author has well-meaningly but incorrectly used the image that the newspaper published. Normally this would probably not be heavily punished by the courts, but the author opted to instead pay the fee, which seems a reasonable approach to take given his uncertainty about the legal grounds by which the image was licensed for use (again, I assume. I doubt it, but it is theoretically possible that X/Twitter were in some kind of relationship with the newspaper that made their usage lawful).
Either way, I imagine neither party I think wanted this to be tested in court. The author clearly didn’t, and the fact that (we are not aware of) the company did not go after X/Twitter despite likely bigger payouts for multiple infringements suggests they also did not, as X/Twitter were more likely to litigate the case.
If the legal system isn’t given an opportunity to weigh in, it can’t do so.
That depends heavily on context. Anyway you're refuting a claim that I never made.
A thought experiment. You are publishing an archive containing billions of items and expect that 0.01% will infringe copyright or be libelous or what have you. Can you legally publish that archive without manually checking every single item?
What if you believe that exactly 1 of a total 1 billion posts will be infringing? Are you required to hunt down the single needle in the haystack prior to publication?
I am quite confident that in the vast majority of jurisdictions the answer in both of those cases is that regardless of what the written law says you will not be found liable in practice so long as you take reasonable precautions prior to publication and respond promptly upon learning of any specific infringing items.
> Normally this would probably not be heavily punished by the courts
Or at all? Does IP law not require intent as a necessary precondition of breaking it?
> If the legal system isn’t given an opportunity to weigh in, it can’t do so.
I never claimed it did, only that the outcome appears obvious to me. This looks like a typical troll case.
You asserted that you don’t think “there is any expectation every single post […] is checked”. I think my answer was completely responsive to that point.
> [You] expect that 0.01% will infringe copyright
This means you either knowingly or negligently publish material you do not have reason to be non-infringing. The 99.99% of non-infringing posts in the article are a red herring, only that 0.01% matters for this discussion.
The test is pretty simple: did you believe the material was not infringing, or did you have reason to believe it was not infringing. In this case, you expect (your word) some content to be infringing. You might get some leeway from the courts, but you would still likely be found liable for unlawful infringement.
> Or at all? Does IP law not require intent as a necessary precondition of breaking it?
The courts may decide to go easy on you, but intent is not required in civil cases (unless it’s a criminal case). See the law itself: 17 U.S. Code § 501(a), and case law regarding intentionality: Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931) (https://supreme.justia.com/cases/federal/us/283/191/#:~:text...).
> This looks like a typical troll case.
Disagreeing with you doesn’t make me a troll.
> intent is not required in civil cases
Fair enough.
> You might get some leeway from the courts, but you would still likely be found liable for unlawful infringement.
I guess we'll have to agree to disagree. Unless you can cite precedent? To be clear, I'm not disputing the law as written but rather as practiced.
Ah sorry, I misunderstood.
This example perhaps? https://en.m.wikipedia.org/wiki/Sheldon_v._Metro-Goldwyn_Pic....
https://law.justia.com/cases/federal/appellate-courts/F2/81/...
> the plaintiffs discredit this denial because of the negotiations between the parties for the purchase of rights in the play, and because the similarities between the two are too specific and detailed to have resulted from chance.
For a movie an analogous scenario to publishing an archive with infringing material might be unknowingly capturing a copyrighted piece of art in the background of one of your shots and then being sued for it. Except in that case you're profiting from the movie (at least presumably). To make it analogous to publishing archives it would have to be something that isn't profitable, perhaps uploading an amateur short to youtube.
Actually this provides a perfect example. If you shoot enough documentary footage in the city you are almost guaranteed to inadvertently catch something that's copyrighted at some point. Unfortunately the scenario breaks down because unlike the internet you can't easily retroactively edit all distributed copies of your video. Unless perhaps it's only available via streaming services? But then we're back to profiting again.
With regards to the documentary example, I think that would come under “fair use” for the following reasons:
1. Transformative use (similar to news reporting)
2. Minimal impact on the market for resale/licensing.
However it’s worth noting in your example that folks are investing heavily in avoiding incidental copyright infringement (see for example dashcam footage on YouTube where songs on the radio are being either cut or pitched up/down or monetised to the rights holder rather than the publisher), which implies that folks cleverer than me, and probably with law degrees, at least see a risk of losing lawsuits over this kind of incidental infringement.
I appreciate that I pointed out that I can’t find a perfect example and then picked apart your imperfect example.
Maybe it’s best for everyone that there is no fully litigated perfect example of this?
The issue I take with such an analysis is the numbers game, the lack of intent that brings with it, and the lack of damages for very minor violations deep in an archive. It doesn't apply to the author of the linked article but at least in the US large archives of content generated by third parties would presumably fall under the DMCA takedown provisions.
> it’s worth noting in your example that folks are investing heavily in avoiding incidental copyright infringement
I think that's what you might call "reasonable precautions". If the technology is widely known about and cheaply available and yet you choose not to use it you risk taking on the appearance of any infringement being intentional.
> see for example dashcam footage on YouTube where songs on the radio are being either cut or pitched up/down or monetised to the rights holder rather than the publisher
I think that's a natural consequence of automated draconian enforcement of corporate policies that are arguably quite user hostile. Certainly the system is actively abused by trolls of various sorts. Even things that are clearly fair use can potentially get your channel demonetized or even banned. Granted, the platform is also rife with users who blatantly and repeatedly violate copyright. The entire place is a cesspool in that regard.
Which is to say that I don't think it's an example of the current legal situation as much as a status quo imposed by corporate policy. (Granted at the behest of various lawyers.)