Lane Hartwell is Wrong, Dave’s a Hypocrite
December 28th, 2007 by EyeOnWinerAs one might expect, Dave’s new software set off something of a storm of complaints form photographers who a) don’t understand the technology and/or b) don’t understand the law.
Here’s pretty much the bottom line: when you post something — anything — publicly on the web you’re basically giving the world the freedom to take a copy of it for their own personal use and enjoyment. Not to sell, not to display publicly, not to give away, but for personal, private use.
Lane Hartwell says, in a comment:
if I have my images marked ALL RIGHTS RESERVED I mean just that…no reproduction in any form without my consent.
Unfortunately for her, that’s not really how it works. In fact, it really can’t work that way. It’s impossible for Computer B to display an image that’s stored on Computer A without reproduction. Does Lane really expect everyone who loads up Flickr to pick up the phone and call her before their browser makes a cache copy?
Besides, isn’t the real problem here that Flickr is transmitting the URLs of JPGs that are supposed to be marked “all rights reserved”?
After all, when Dave says: “When you publish an RSS feed with enclosures you’re inviting people to download your content and store it locally.” He’s absolutely right — that’s the whole point of RSS enclosures.
Arguing that downloading things from RSS enclosures is copyright infringement is like putting all of your valuables in a vending machine and then trying to press charges against the people who use it for “theft”.
Then again…
When Dave’s website was being marked up by Google’s Toolbar he didn’t like it, but it was basically the same thing as FlickrFan is doing (although far more innocuous). If we’re very, very generous to FlickrFan, we can say that the software is remixing Flickr so that we can view it our own way, which is what Google Toolbar did when it added links to pages at our request.
The contrast is that in the first scenario it was Dave’s site being remixed and here Dave is the remixer. In Dave’s world, that makes all the difference.
December 28th, 2007 at 8:29 pm
Sorry, but you’re wrong. There is no implied license to create what amounts to a new work (a screensaver) using someone else’s images, even when you put them up on a web site or distribute them via RSS.
When I put something up on the web, and give you an RSS feed, I’m letting you view the images in a web browser. I’m even being generous, and letting you download them to look at them when you like. What I’m not allowing you to do - unless I explicitly give you permission - is to take those images and use them to create something else, even for your own personal use. Using them to create a personalised screensaver is essentially the same as using them to create a publication: it’s taking someone’s work, and making something new out of it.
Personally, I don’t give a damn: I license pretty much ever image under a Creative Commons share-alike license that even allows for commercial use, as long as the image is attributed. But not everyone wants to do that, and systems like Creative Commons only work IF people respect ALL the licenses.
The issue here is that Dave is consistently refusing to engage with anyone over this.
December 28th, 2007 at 8:33 pm
Correct me if I’m wrong, but aren’t the images displayed by FlickrFan transitory and replaced with newer images constantly? If so, how is the application any different than an RSS reader with a mode that just shows the images from subscribed feeds?
The most common function of RSS is to download content for personal reading. I have trouble seeing how Lane Hartwell could make the case that it’s OK to view her picture feed in Bloglines but not in FlickrFan.
December 28th, 2007 at 8:41 pm
“There is no implied license to create what amounts to a new work (a screensaver) using someone else’s images,”
Nobody “created” a screensaver. They used a piece of software to view data which was made available for public viewing. No more, no less. The fact that the piece of software turned on when the mouse hadn’t moved in X minutes is insignificant.
Now, if someone had “created” a screensaver and embedded Lane’s images in it, then you’d have a valid point. But that’s simply not the case. The screen saver is really no different than a web browser here. It’s a piece of software which takes input in the form of images and displays them in a preconceived way.
“When I put something up on the web, and give you an RSS feed, I’m letting you view the images in a web browser.”
Absent large warnings to the contrary, when you put something on the web you give me license to view it however I please. Anything that shows me that content is, in the most general of terms, a “web browser” and even if it’s not, so what?
Saying I can only look at your pictures in a web-browser is like putting up a billboard and saying people can only look at it if they’re wearing dungarees.
One thing I don’t get: Why, exactly, should it be Dave’s job to fix Flickr’s feeds?
December 28th, 2007 at 8:44 pm
“I have trouble seeing how Lane Hartwell could make the case that it’s OK to view her picture feed in Bloglines but not in FlickrFan.”
That’s simple: it’s not a principle she’s standing on, she’s just whoring for publicity.
December 28th, 2007 at 9:12 pm
Aren’t Winer and Scoble pushing this thing for displaying on a tv with friends? Isn’t that going a bit beyond private use?
December 28th, 2007 at 9:28 pm
No, it’s not — not any more so than renting a movie and watching it with a few friends in your livingroom.