We want to let you know that we have implemented a global change in the standard takedown process that will benefit the whole Flickr community going forward.

When a photo is removed from the site based on a notice of alleged copyright infringement, we will temporarily show a placeholder and the member will have an opportunity to respond before the image is made unavailable.

If the alleged copyright infringement is found to be fraudulent, the image in question will be restored, and the photopage will look like before.

The growth of the Internet and the proliferation of sites for searching out and/or sharing images online—Flickr, Photobucket, Facebook, Google Images, eBay, to name only the best-known—now mean a plethora of visual resources that was inconceivable as little as ten years ago: a phenomenon comparable to the advent of running water and gas in big cities in the nineteenth century. We all know just how thoroughly those amenities altered people’s way of life in terms of everyday comfort and hygiene—and now, right in our own homes, we have an image-tap that’s refashioning our visual habits just as radically. In the course of art history, periods when image accessibility has been boosted by technological innovation have always been rich in major visual advances: improved photomechanical printing techniques and the subsequent press boom of the 1910s-1920s, for instance, paved the way for photomontage. Similar upheavals in the art field accompanied the rise of engraving as a popular medium in the nineteenth century, the arrival of TV in the 1950s—and the coming of the Internet today.

Digital appropriationism
Across-the-board appropriation on the one hand plus hyper-accessibility of images on the other: a pairing that would prove particularly fertile and stimulating for the art field. Beginning with the first years of the new millennium—Google Images launched in 2001, Google Maps in 2004 and Flickr the same year—artists jumped at the new technologies, and since then more and more of them have been taking advantage of the wealth of opportunities offered by the Internet. Gleefully appropriating their online finds, they edit, adapt, displace, add and subtract. What artists used to look for in nature, in urban flaneries, in leafing through magazines and rummaging in flea markets, they now find on the Internet, that new wellspring of the vernacular and inexhaustible fount of ideas and wonders.

What does this mean?

-- US members will still receive a warning that contains the name of the complainant and now will include a link to the image where the content has been removed.

-- The original image will be stored by Flickr. Should we receive notice from the US Copyright Team to replace the original, we will be able to do so. *** Please note will be able to do so as long as the original photo.gne page is left in place. If a member chooses to delete the photo.gne page we'll assume that they're not interested further activity like restitution of the image. ***

-- The existing title, description, comments, tags, notes, etc. will be available. The image can still be added to sets and groups.

-- Blog This, Edit in Picnic, "replace this image" and the EXIF info will be disabled.

-- The image will be flagged NIPSA and as such will not return in search results nor be available in the API.


For the rest of the world

-- The existing process of photo removal will continue. We're going to begin reaching out to the other regional copyright teams to see if they would like us to enact this feature where they are. Given that the counter-claim process is unique to the DMCA, we'll need to work out how image restoration will work elsewhere.

I have to communicate with flickr and Yahoo! separately. Flickr have yet to reply to a single email about it. Yahoo do reply. Eventually. It takes them 5 days. And then it's the kind of reply that doesn't actually reply to anything. Imagine typing a reply to someone who's asked 4 questions, knowing that you've not attempted to address 3 of them, and still ending it with the words, "we trust this answers your concerns"? It doesn't. And they know it doesn't. That's Yahoo.

When I asked Zack if he could tell me why the rules were different for non-US based customers he said that he couldn't tell me. I asked if he knew and couldn't tell me because he wasn't allowed to or if he couldn't tell me because he simply didn't know. He replied that he couldn't tell me that either. When I asked if he thought they could replace the photo he said he didn't know. I told him that I knew they had managed to replace a whole account that had been deleted recently, and he told me that replacing an account was not the same as replacing a page. I asked him why he thought they didn't have to comply with the terms of the DMCA and replace the photo and he told me he wasn't able to answer questions like that.

I don't believe Zack's employers are giving him the tools required to do his job.
"If it's possible to replace the photo, will you do so?"
"Ack... I ... um... that's tricky... I can't say yes to that."
"But the only reason you wouldn't say yes to that, is if you can imagine a situation in which you discover it is possible but still don't do it?"
"Yes."
"And can you imagine that happening? Can you imagine one of your engineers saying that he can replace the photo... and you deciding not to do it?"
"Well... no."
"So promise me that if it's possible to replace it, you will replace it."
"I don't think I can do that."

"After reviewing your recent correspondence, we have no further comments to make regarding this case, and consider it closed."

Etsy is an online marketplace for handmade goods, where users can set up a storefront and create listings for things they’ve made.  There are over 800,000 active “shops” filled with these handmade goods — far too many for Etsy to monitor manually. Further, because of the eclectic nature of goods listed, it’s difficult to technically filter through the objects listed.

All that means that it’s not feasible for Etsy to proactively prevent listings that may be perceived to violate US copyright or trademark law.  That’s a problem, because  under SOPA, anybody who is a “holder of an intellectual property right harmed by the activities” of even a portion of the site, could serve Etsy’s payment processors with a notice that would require them to suspend Etsy’s service within 5 days. That means that a trademark violation in one of the storefronts could lead to payment suspension across the entire site. Unlike DMCA notices, which should be targeted to specific infringements, payment provider suspensions will likely target entire accounts.  And even if Etsy protests, the bill's vigilante provisions, which grant them immunity for choking off a site if they have a "reasonable" belief that a portion of a site enable infringement, give the payment processors a strong incentive to cut them off anyway.

Like Etsy, Flickr takes copyright issues seriously, and complies with DMCA safe harbor requirements by taking down photos when it gets a valid complaint, establishing a repeat infringer policy, etc.. But it doesn’t proactively monitor its user-generated content for copyright infringement. The language of SOPA is vague enough that an individual or corporate rightsholder could claim this lack of monitoring as “taking … deliberate actions to avoid confirming a high probability of the use of the … site to carry out acts that constitute a violation.” Flickr uses an ad network to place advertisements, and accepts payments for premium accounts. Both of those revenue streams could be suspended in a matter of days by a single complaint, and the process of reactivating them could be long and complex.

For Jim Goldstein, a photographer affected by the violation, this was the last straw. He's posted a lengthy discussion of the issue in which he details other instances where his Flickr photos have been used without permission. Goldstein lays the blame at Flickr's feet, saying that their API and RSS systems suffer from "security holes" and don't properly protect users' copyrights. His post has attracted over 100 comments and nearly as many inbound links.

So what's the problem, exactly? In an early email to Flickr, Goldstein put it this way:

I want to be clear RSS feeds are not a problem for people to receive updates to view photos either in their RSS reader or through a web browser on their computer [...] Personally I like that Flickr provides tags as a means of searching and organizing. I have no problem with using this functionality for all uses other than the unauthorized publication of my work.

In other words, use of his work by RSS is fine, except when it isn't. How is Flickr supposed to know the difference? Well, it just is. And not by requiring Goldstein to mark his photos "friends only," mind you -- Goldstein doesn't want to lose the promotional value of Flickr's tag searches and RSS feeds. Flickr should know, somehow, that he doesn't mind users viewing his photos in their RSS readers, but does mind when they view them, via RSS, on Mac Mini connected to a TV that uses FlickrFan. Photos should be public, but not, you know, really public.

Needless to say, this is incoherent. If your work can be viewed on a computer it can also be copied -- and, in fact, already has been. And, if the copier so desires, they can then reuse it. It's sweet of Flickr to implement tricks like their one pixel overlays, but only a fool would think they stop any but the laziest and most insignificant pirates.

Does Flickr's API make unauthorized use of copyrighted material easier? Sure. But it doesn't fundamentally change any of the operations that can be performed on photos through the website -- it just simplifies a bit of the rigamarole associated with automating the process. In this respect it serves as a device that abets infringement. But that can't reasonably be considered a flaw or mistake, for reasons we should all be familiar with by now.

The Flickr API can be used to violate photograph owners' rights. But the fault lies with those who misuse the tool, not with the tool itself. Goldstein doesn't seem content with going after infringers, and I suppose that's understandable -- it's a neverending battle, and an unsatisfying one. But what he's asking from Flickr is both wrongheaded and technically impossible. He, and copyright owners everywhere, can choose to adapt to the rules of the digital age or to retreat from them entirely -- but rewriting them is not an option.