On the latest episode of TWiP’s Street Focus, photographer Valerie Jardin interviews The Copyright Guys (photographer Jack Reznicki and trial lawyer Ed Greenberg). Shortly after the twenty-minute mark they begin a very interesting conversation on photography in public libraries. Worth listening to if you’re interested in such issues.
Norman Oder, writing in Library Journal, reports that Darrell Batson, director of the Frederick County Public Library, turned over two public-access computers to FBI agents investigating the 2001 anthrax attacks. Library officials claimed that:
"Public-access computers are not connected to FCPL’s library patron records. No library patron records were provided to the FBI. Library patrons’ records are not made available to law enforcement authorities without a court order."
Library computers are analogous to books and other materials within the library. They may not necessarily be checked out and therefore are not part of the patron's circulation record (though some libraries do view computer reservation systems as analogous to check-out) but they are a library resource being used by a library user. In my opinion this equates to protected use of library materials. If the FBI came in and asked for security camera footage to see what someone was reading, would we turn it over without a warrant? If an officer asked a librarian what magazine article a customer had just been reading, would we provide it?
When a library customer comes into our building and makes use of our resources and services, we extend to that user a shield of privacy so long as they agree not to violate our policies or the law. The protective shield of privacy can only be pierced when the individual violates the contract regarding use. If we, the library, witness the violation then it is incumbent upon us to take proper and appropriate action. However, if an outside agency, such as the FBI, comes to us and claims that a law was broken and that we need to turn over anything that could connect our library users with information they sought within our building or while using our services then we need to require that a minimum threshold is met — namely, the production of a warrant.
Frederick County Public Library, in my opinion, failed this test.
Batson said that "it was a decision I made on my experience and the information given to me." A library director would never accept this excuse from his staff.
Library administrators spend a great deal of time training and reminding staff that under no circumstances should they acquiesce to uniformed intimidation and turn over library records or anything that could identify information seekers and the information they sought to law enforcement without a proper warrant. Library use — information both sought and retrieved — is private data that should never be subject to search and seizure without proper judicial oversight.
By turning over public-access computers to federal authorities without a warrant, the Frederick County Public Library has violated the trust of its patrons and violated a basic precept of librarianship. Personal and identifiable data most likely exists on those computers to link people to their searches, email, visited websites, etc. If a crime had been committed then the FBI would have been able to produce a warrant to seize the computers and the library would then turn over the requested items. But library officials did not require that warrant. They turned the computers over to federal agents based solely upon the word of the FBI agent on scene, and in doing so they have set an awful example to librarians everywhere.
EDIT: 8/8/08 Follow-up story in New York Times:
Library officials turned over the computers voluntarily to the F.B.I. last week. The Justice Department said it believed it needed a search warrant to examine the contents, and two warrants were approved Thursday by Chief Judge Royce C. Lamberth of Federal District Court for the District of Columbia.
I know from the number of emails I’ve received that quite a few readers are following the Creative Commons issue I’ve been having with the image titled “50 Reasons Not to Change”. I reposted this image several weeks ago here on my blog and also in my Flickr stream. I saw the image here, though the writer on that site admitted that it was not their creation (the blogger says, “I first ran across this in New Mexico in 1991 very apropos at that time RE: women in the highway and environment departments. The specific source is in deep storage (still) but I’m hoping the creator will recognize it and let me know”). Regardless that the image was not theirs, they claimed a Creative Commons BY-NC-SA license, which simply means you cannot use the image for commercial purposes but you can alter or change it, so long as you attribute back to the image owner and do not change the use license. I also like CC’s statement regarding the required attribution: “but not in any way that suggests that they endorse you or your use of the work”.
So, I received a notice from Yahoo (owner of Flickr) that the image had received a copyright challenge and Yahoo removed the image from my Flickr stream. Following their guidelines I submitted a counter-notification, stating that the copyright challenge had been mistaken and my use of the image was proper. After submitting the claim in its correct format I received this notice:
Please be advised that pursuant to 17 U.S.C. § 512(g)(2)(B) of the
United States Copyright Act (the "Copyright Act") Yahoo! has timely
provided the counter-notification submitted by you to the complainant
(or, if applicable, to the complainant's designated agent) in this
Provided Yahoo! does not receive notice that the complainant has filed
an action seeking a court order to restrain you and/or your company, as
applicable, from engaging in the allegedly infringing activity, Yahoo!
intends to advise you that the material may be reposted, as appropriate
on or about May 2, 2008.
Copyright/IP Agent, Yahoo! Inc.
c/o Yahoo! Inc.
701 First Ave.
Sunnyvale, CA 94089
Now I will wait to see if a restraining order is issued regarding use of the image. I have also asked Yahoo/Flickr to please repost the image with the comments and hits that were already present, though I will be surprised if they can do this.
There have been several frustrating things about this episode. First and foremost seems to be the complainant's misunderstanding of CC licensing. Attribution can simply be a link back to the source, though the complainant seems to want to control hosting, claiming several times that I should have only linked to the original image and not my reposted copy. Yet the Attribution-Noncommercial-Share Alike 3.0 license clearly permits me to "copy, distribute, display, and perform the work" and "to make derivative works".
Watching all of this has forced me to conclude that I don't particularly care for the Creative Commons license right now. I think I'll either need to claim full copyright on my works, or I'll do what Lori Reed and Tony Tallent have started doing, which is to permit full and free use of some of my works — I'll have to do this on an image-by-image basis as there are many photos that I do not want reposted or reused.
By claiming full copyright I require any re-users to ask me before proceeding. That way I'll know who is using my photos and how they are being used, yet I will still be able to permit reuse. I come to this conclusion because I see a lot of images out there with CC licenses but I also see a lot of complaints about use — "you didn't attribute it to me" or "you didn't attribute it properly".
I'm not so sold on this middle ground of Creative Commons anymore, which is frustrating because I really had high hopes for it as an alternative to straight copyright. I think CC creates a murky legal middle that seems designed to give flexibility but ends up creating confusion. If I want credit for a work then I will permit reuse under current copyright law but require attribution as I decide fit — you ask me and I say yes and here's how… If I want it to be usable by anyone then I make it public domain and I don't have the right to come back and say "but you didn't stroke me enough with a great big bold attribution".
And maybe that's what it comes down to. I don't make any real money off of my photos but I wouldn't want any of them used in a negative way — especially the many photos I have posted of family and friends. Yet I have many other photos that I could see being useful for anything from poster design or signage to the "before" images for photography students looking to improve their work. I've even had several of my photos used for history books, online advertising, and greeting cards. The publishing houses and companies contacted me via email and we discussed how the images would be used. But each and every time I got to see exactly how my photo was going to be used and I had the final word on use. I don't see a lot of my photos in that middle area — images that I'd be happy to see used elsewhere without my approval. Ego? Sure. But it's also about my work and how I want it used. Creative Commons lets me say noncommercial but it doesn't (and cannot) have a requirement that permits uses that only I deem proper. But old fashioned copyright does.
So, as time permits I will be moving more of my photos over to Lori and Tony's great new Free Use Photos group. But many of my other photos (whether they can be considered good or not) will remain under traditional copyright. If someone wants to use them then they can ask me (and I thank the many people who have taken the time to ask).
Feel free to differ — many will. I'm even open to changing my opinion on the matter. But for now I'll just wait and see how this whole Creative Commons problem resolves itself.
Free Use Photos is a group where members can share photos that can be used without any copyright restrictions.
These pictures can be used however you would like. No attribution is necessary. All images are free.
Use them in your displays, presentations, publications or anywhere else.
Freedom to use. Freedom to read. Freedom to know. Freedom to share.
The idea is simple. Any photos placed in that group may be used by anyone for any purpose. What a great idea!
And now we have to get Flickr to create a copyright selection that can reflect this freedom. The LOC Flickr page (part of Flickr's The Commons) is able to use a "no known copyright restrictions" label, but that label is reserved for participating museums and libraries and not exactly what we need for the group. What we need for the new Free Use Photos group is a public domain label. Unfortunately, Flickr's most liberal license is the Creative Commons Attribution license, which is a start but doesn't fit the needs of the group.
Robert Scoble recently dropped a lot of his photos into the public domain:
One advantage of putting all my photos into the public domain? People are now uploading them to Wikipedia. Like this entry for AT&T’s CEO. All my photos are in the public domain now. You can use them without even attributing them, or giving me credit (although I do appreciate those of you who give credit for my work). Why do I do that? Because sharing my work with the world has brought me back so much goodness. This is also a gift to the world from Fast Company Magazine, which paid my travel expenses to go to Davos.
But what we need is for Flickr to create a license that reflects the public domain status of the images so that we can avoid any confusion over licensing. Anyone have any ideas?
Several days ago I saw this image on this website and really liked what I saw. So, since it was copyrighted with a Creative Commons 3.0 license I went ahead and reposted to both my Flickr stream and this blog. I received a tersely worded comment from the owner claiming that I had “stolen” the image and should remove it. Not being one to respond pleasantly to such a gross accusation, I reminded the image creator that they had licensed it using the CC 3.0 license and that I was using it within the rights outlined on the Creative Commons website.
Today I received this nice message from the good people at Yahoo (they bought Flickr a while back):
Dear Michael Casey,
We have received a Notice of Infringement from M. Pamela
Bumsted via the Yahoo! Copyright Team and have removed the
photo "50 Reasons Not to Change" from your photostream.
Subsequent NOIs filed against your account will result in
further action that may include termination without
If you believe that you were designated by mistake or
misidentification, or if you believe that you have not
infringed the copyright, you may submit a sworn
counter-notification as to the mistake or
misidentification. Please contact the Yahoo! Copyright Team
for more information on this process:
– Flickr Team
Okay, so I emailed and phoned the Yahoo Copyright Team and explained that the image was attributed to the creator and that it was licensed not with standard copyright (which I use on all of my photos) but using the Creative Commons license. Now I wait to hear back.
What is so damn frustrating here is the apparent unwillingness of one M. Pamela Bumsted to recognize the whole purpose of the CC 3.0 license. I was not using the image in a commercial manner and I was attributing ownership. The CC 3.0 license allows remixing and adaptation. It very clearly states on the Creative Commons site that “You are free to share — to copy, distribute and transmit the work – and to remix – to adapt the work”.
I can understand not wanting your work reposted somewhere else, but that is why I have chosen to copyright my photographs – I’ve gone so far with many of them as to send them to the Library of Congress for formal copyright protection. I can only assume that the owner of the image “50 reasons Not to Change” probably should have chosen that more restrictive copyright than the CC 3.0 license.
So, like I said, now we wait to hear what the Yahoo Copyright Team says. I don’t want to blow this out of proportion but if Yahoo says a CC 3.0 licensed work cannot be transmitted or copied then what will the Creative Commons people say? Doesn’t this undercut the whole purpose of the CC license?
And you know what's really sad? That's a really cool image with a great message that should be shared as much as possible.
EDIT: As one of my commenters points out, the complainant admits on her blog that she is not the creator or artist of the image in question. She states:
I first ran across this in New Mexico in 1991 very apropos at that time RE: women in the highway and environment departments. The specific source is in deep storage (still) but I’m hoping the creator will recognize it and let me know.