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Lamar Smith Caught Infringing On Photographer's Copyright

from the but,-of-course dept

Any time you have someone who is vehemently copyright maximalist, it’s really only a matter of time until someone discovers that they, too, violate copyrights. There had been some questions asked a few months ago about whether or not SOPA sponsor Lamar Smith had licenses to put up videos of news reports on his site, but that didn’t seem like a huge deal (and was likely fair use anyway). However, the latest, as a ton of you are sending in, is that some enterprising folks at Vice discovered that Lamar Smith’s campaign site was making use of a photograph in violation of its Creative Commons license. It seems this was what Lamar Smith’s campaign website recently looked like:

That background image? Turns out it’s this (quite nice) image from DJ Schulte
Take it away, Vice folks:

And whaddya know? Looks like someone forgot to credit him.

I contacted DJ, to find out if Lamar had asked permission to use the image and he told me that he had no record of Lamar, or anyone from his organization, requesting permission to use it: “I switched my images from traditional copyright protection to be protected under the Creative Commons license a few years ago, which simply states that they can use my images as long as they attribute the image to me and do not use it for commercial purposes.

“I do not see anywhere on the screen capture that you have provided that the image was attributed to the source (me). So my conclusion would be that Lamar Smith’s organization did improperly use my image.

Ooops. And this is a big part of the problem that we’re talking about. Thanks to the ridiculousness of today’s copyright laws, it’s pretty much guaranteed that everyone infringes, whether you intend to or not. Which is why we ought to be exceptionally careful about doling out quick and powerful punishment for those involved in infringement. After all, the supporters of these things never know when it might just come back to bite them directly…

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Comments on “Lamar Smith Caught Infringing On Photographer's Copyright”

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130 Comments
Someantimalwareguy (profile) says:

Sue him...sue him I say...

…Thanks to the ridiculousness of today’s copyright laws, it’s pretty much guaranteed that everyone infringes, whether you intend to or not. Which is why we ought to be exceptionally careful about doling out quick and powerful punishment for those involved in infringement. After all, the supporters of these things never know when it might just come back to bite them directly…

Sue Lamar into the ground for this I say and let him experience the pain he would try and inflict on the American people before he pushes this nonsense any further…

Make him spend time and money defending himself in court rather than trying to get reelected.

xenomancer (profile) says:

In Hopes of Moving Things Along

Some bad/wasted/useless arguments/thoughts:

Some good/relevant/useful arguments/thoughts:

Hopefully this’ll move us past the near obligatory grumbling, fishing stories, and mud slinging and open up the debate a little.

/misguided-distractions

I’d be interested in knowing exactly how sympathetic DJ Schulte is to a hypothetical request by Lamar Smith for permission to continue using the picture. I realize its more or less of moot consequence as Smith’s web lackey has likely changed it by now, but it would be a nice contrast for displaying the snense of entitlement that seems to be roughly proportional to the quantity of intellectual properties with an expected positive monetary return on investment.

Anonymous Coward says:

Re: In Hopes of Moving Things Along

“I’d be interested in knowing exactly how sympathetic DJ Schulte is to a hypothetical request by Lamar Smith for permission to continue using the picture.”

Under SOPA, there would be NO allowance for such a request!
You break the law…your site is OURS, boy!

I love it when hypocrites are hoisted on their own petards!

Ninja (profile) says:

Re: Re:

Well, considering Lamar is so zealous about SOPA and copyright infringement he should set the example and takedown his own site before ICE or anybody else. After all, if you advocate for some law and disrespect it, even if not on purpose, you should be the first to set the example amirite?

I expect to see the infamous ICE/DOJ banner informing that Lamar’s website was closed because it was engaged in child porn distribution.

“But, Ninja, it’s copyright infringement!”

Oh… No problem, ICE will fix it in 48h like the 84k sites seized by mistake. No damage done to his image, right?

Justin Olbrantz (Quantam) (profile) says:

Re: Re:

I second this. Speaking as a creator, somebody taking my work for non-commercial purposes without paying for it (assuming it’s one of the works I actually expect payment for) would get you an eye roll and, if you’re really lucky, a “Naughty, naughty, naughty!”. But claim credit for my work, and now you’ve seriously pissed me off.

AzureSky (profile) says:

Re: Re:

so true, hell, alot of times I have seen torrents posted with a link to the authors site saying “if you like this support the creator/artist”

and the funny thing is, I have a few times seen the creators show up on those trackers(like the noid) and thank people for their support and say the same thing the post did “if you like my work please support me/it so I can continue to do XXX” (thats a rough example)

I am of the strong belief that piracy dosnt hurt the sales of quality products, only the sales of poor products(like your average UBI soft console port…)

mark says:

After all, the supporters of these things never know when it might just come back to bite them directly…

What do they have to be worried about.

Copyright Maximalist – High Court – get a warning
Everyone Else – Low court – get $100000 fine and jail for felony infringement of a business model

http://torrentfreak.com/return-of-the-high-court-and-low-court-111002/

MAJikMARCer (profile) says:

Won't hold water

Yes it’s fun to poke at Lamar for this infringement and I think Mike says it right that this illustrates how easy it is to infringe.

If I were to guess his web designer simply didn’t understand what Creative Commons means or maybe s/he didn’t care. It’s going to be easy for Smith to brush this off as a mistake and either give Mr. Schulte proper attribution or simply get another piece of photography that is properly licensed.

On the other hand, if he’s going to play the part of copyright avenger, he better make sure he’s 100% complaint with the laws/bills he supports.

Anonymous Coward says:

a*hole trying to hide the dirt now. robots.txt archive block just went live

rofl.. the a*hole managing the lamar smith website is trying to hide the dirt under the carpet. They just nuked the archive.org snapshot via the robots.txt that EXCLUDES the archive specifically:

http://www.texansforlamarsmith.com/robots.txt

# See http://www.robotstxt.org/wc/norobots.html for documentation on how to use the robots.txt file
#
# To ban all spiders from the entire site uncomment the next two lines:
# User-Agent: *
# Disallow: /
User-agent: ia_archiver
Disallow: /

f.y.i. the ia_archiver is the user agent used by the web archive project. This means they ONLY block the archive for showing past website contents

SD says:

Re: a*hole trying to hide the dirt now. robots.txt archive block just went live

As far as I know they don’t delete snapshots if someone just puts up a robots.txt file. When they launched the new Wayback Machine about a year ago I was able to access snapshots of sites that were blocked for years. My theory is that they didn’t import the existing exclusion database from the classic Wayback Machine, but had each site’s robots.txt recrawled. That sometimes left open a window of 5-10 minutes to browse a site that was supposed to be blocked. I think if someone wants something truly removed from their servers they need a court order and as a library they have some protections against that happening.

SD says:

Re: Re: Re: a*hole trying to hide the dirt now. robots.txt archive block just went live

I know it’s been blocked from viewing online, but the copies probably weren’t deleted from their servers. Here’s an example of a judge ordering a company to remove a robots.txt file from their website so historical pages could be restored and the Wayback Machine could be used for discovery purposes:

http://en.wikipedia.org/wiki/Wayback_Machine#Netbula_LLC_v._Chordiant_Software_Inc.

Steve R. (profile) says:

Be Careful of What You Ask For

As Anonymous has already pointed out, those who make these unreasonable laws do not seem to think that the law applies to them. Pure hubris.

As these laws have been aggrandized, the ability to interpret and apply the law has become increasingly absurd.

Once a law becomes sufficiently convoluted it looses its meaning. Society as a whole then suffers because we no longer have the rule of law that applies equally to everyone. Instead we have a whimsical legal system based on “extenuating circumstance” and “novel” interpretations. Only those who can afford a loquacious lawyer who can spin some fantastic psychedelic explanation will have ersatz justice.

Seems that we could refer to our new legal system as being an outgrowth of the Twinky Defense.

Justin Olbrantz (Quantam) (profile) says:

Re: Be Careful of What You Ask For

“As Anonymous has already pointed out, those who make these unreasonable laws do not seem to think that the law applies to them. Pure hubris.”

I don’t know about that. It seems more often than not that those wealthy and powerful enough to make laws are wealthy and powerful enough to not be prosecuted for breaking them.

btr1701 (profile) says:

Re: Re: Be Careful of What You Ask For

> I don’t know about that. It seems more often
> than not that those wealthy and powerful
> enough to make laws are wealthy and powerful
> enough to not be prosecuted for breaking them.

When it comes to members of Congress, they usually put a clause into just about every bill exempting themselves and their staff from its application.

I wouldn’t be surprised at all if the final versions of SOPA/PIPA have similar clauses that will exempt Congressional web sites from having to abide by or be penalized under the new law.

The problem for Lamar in this case is that his law hasn’t passed yet, so he has no exemption to fall back on.

Anonymous Coward says:

Re: Re: Re: Re:

So you mean, ” I don’t fucking know I am just pulling shit out of my ass, why the hell would I know how CC copyright works.” Thanks for clearing that up.

I believe DJ was using this one based on his comment in the article:
“This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.”

http://creativecommons.org/licenses/

It is not fair use to take another persons work and use it as your background picture w/o crediting them.

Anonymous Coward says:

Re: Re: Re:2 Re:

It is not fair…

Quit whining.

It is too fair when the power-differential is high enough: When you’re a high-status politician, you can get away with stepping on little people.

If you’re a large public corporation, with in-house attorneys and outside counsel, then you can beat up on folks all day long.

Anonymous Coward says:

The only fair solution to this to problem is to block Lamar Smith’s website from everyone, and order all TV & Radio stations to refuse to air ANY of Lamar Smith’s reelection ads.

Oh, and the US government should also go after Lamar’s supporters for circumventing the blocks on his website, especially if they lend Lamar Smith financial aid through campaign contributions! That’s even worse then piracy, that’s paying the pirates for someone else’s content!

Sure it’ll be inconvenient for Lamar when it comes to running for reelection, and for his supporters. But come on, this is alleged piracy we’re dealing with, that’s almost as bad as murder! Which makes it perfectly ok to punish Lamar Smith and supporters first and figure out if they’re guilty or not months or even years later when a trial can finally be scheduled.

The ICE Enforcer says:

Here to save the day

Do not worry my fellow American’s. I am Capt ICE and I will stop this evil pirate of our proud internet community. 1st. I will stop all payments and freeze all bank accounts that are remotely tied to his business, family, ex college roommates mother~in~law, and everyone else who has heard of his name. 2nd. I will seize his house, vehicles, and his mistress house indifinetly. 3rd. I will then notify him about the seizures with a follow up on how he is now a suspect in funding terrorist activities in some country that doesnt have roads or running water but is clearly a threat to the USA and its allies. But do not fear my fellow American’s. I will allow due process after I start the legal process. Unfortunately the legal process has been copyrighted, so it will take a mere 75 years after he dies to become available.
V/R
Capt ICE Enforcer.
These things I do, So you won’t be able to.

Gwiz (profile) says:

Re: Eh

Amusing, but ultimately not relevant to SOPA. This is a domestic site, so it would not be subject to SOPA’s influence.

For the sake of argument, let’s say that some foreign website does have that exact image available for illegal download and someone uses SOPA to go after them. With Smith having it on his site also, wouldn’t that go against the anti-circumvention provisions which are not limited only to foreign sites?

Anonymous Coward says:

When you are championing a cause, accusing your opponent of doing that which you encourage does two things:

1) It belittles your argument that the action should be allowed. Afterall, you just accused him of some infringing therefor you acknowledge that the practice is wrong.

2) It makes you look childish. “He started it!”

Stop trying to lead some activist revolution against supporters of SOPA/PIPA, and instead focus on facts. Until you do so you are just spreading propaganda and it makes you look like a school yard bully. And I don’t want to here any arguments about the other side starting the bullying see item 2 above.

Anonymous Coward says:

Re: Re:

How is it propaganda? It is a fact that Lamar infringed on this guys work. According to the artist himself. It’s not a matter of bullying him or who started it. Mike (and the original author of this story) are just showing how easy it is too accidentally infringe (assuming it wasn’t done on purpose) and how stupid it is to be trying to make people felons for shit he does himself.

Under SOPA DJ would have had the right to get his Lamar’s site shut down. That is funny and worth pointing out. It shows how clueless these people are in demanding that every follow strict rules that they can’t even abide by themselves.

anonymous says:

remember how the RIAA recently were caught out because IP addresses registered to them were used to download copyrighted files? their excuse was the those IP addresses only ‘looked similar’ to their addresses. perhaps Smith’s excuse will be that this image only ‘looks similar’ to the one copyrighted by DJ Schulte and therefore expects to get away with using it.

Anonymous Coward says:

Re: Re: Re:

That header picture looks a lot like the one here…
http://www.home2riverwalk.com/san-antonio-hotel.aspx

No, it’s that image…
http://www.home2riverwalk.com/resourcefiles/mainimages/downtown-san-antonio-hotel-location-top.jpg

hastly-extended in Photoshop…
http://www.texansforlamarsmith.com/heading-1.jpg

Get your facts straight! 😉

Anonymous Coward says:

Re: Re:

THe owner of this image should sue…

Don’t try to egg someone on into doing something. Lawsuits are hideously expensive, drag on forever, use up endless amounts of time, emotion, resources, and rarely result in satisfaction for anyone.

The court system in the US is pretty broken right now. Everyone should stay out of the courts?if at all possible.

Anonymous Coward says:

Re: Re:

“If this story is false then nothing will happen but to bring out the truth of the story only.”

The story’s already been shown to be true, son.
What part do you doubt?

The screengrabs showing the site and the infringing image?

The multiple verifications of what was on the site from unrelated sources?

The fact the site’s webmaster took it down and replaced it with a pitiful replacement a community college student could do better?

The fact the site’s webmaster is desperately trying to scrub site from the Wayback Machine?

Is there one I missed?

PS: I do hope someone sucked/downloaded the site before it was pulled.

Violated (profile) says:

Practice what you preach

I think what is most interesting here is that Lamar Smith is a strong promoter of Copyright but on his own website he is using a Creative Commons photo. In other words he is promoting payment enforcement but then using “free” himself.

I am sure there are much artwork protected by Copyright around that would welcome his usage charge.

Naughty Lamar Smith should have credited the artist. Now that is not much to ask considering what a nice free non-commercial use background it is.

Capitalist Lion Tamer (profile) says:

“My donation is secure”?

Really? In a swiftly banged-together site with what looks like the finest tools Geocities had to offer?

http://www.texansforlamarsmith.com/contribute

I don’t see an “s” at the end of that http and I’d really rather not enter a bunch of info just to see if it redirects somewhere safer with my cc info in its possession.

Al Bert (profile) says:

Creative commons and copyleft

Oh but that’s under CC license.
Everybody knows that’s not real copyright if it doesn’t belong to the entertainment industry. He should be glad that someone is using his work for free!. Use without attribution is still good advertisement.
/sarc

fwiw, i know an artist whose works have been ripped off on the website for one of the tv series owned by WB. It’s probably still there. I wouldn’t believe for a second that protectionist laws like SOPA would give him or this photographer any authority to act against those misusing their work.

Karl (profile) says:

Re: Re:

Lamar Smith is hosting a dangerous rouge site

It’s true. Why, just yesterday, I used his cosmetics to highlight my cheekbones, and I broke out in a rash.

Obviously, it’s counterfeit rouge, which costs the cosmetics industry billions of dollars per minute. We must break the internet to stop this outrage! Won’t somebody think of the cheekbones?

The Amazing Sammy says:

I really hate to defend the guy. I think he’s a cunt, and I think SOPA/PIPA are an afront to my freedom, so please don’t call me his butt boy or anything retarded like that.

But if someone you liked had the same allegation against them, you would likely point out this is clearly fair use, and that a recent court decision just a couple weeks ago confirmed that you can in fact use a work in it’s entirety under the doctrine of fair use. So… it’s moot there.

But discount that entirely for a minute. Is it really that unusual for the artist of the original work to have no idea who’s actually using it? Is it the least bit unusual that the artist would have no idea what websites use his work, or who licensed what? No, of course not.

Smith’s website was probably created by a third tier web development outfit, like any of the small web design firms you’ll find in the Midwest or elsewhere. These companies are usually pretty good about licensing. If you could find the people who designed the website, you’re likely to find the licensees of the stock photography.

This is how it’s done.
It’s totally legal.

You should know better than to ignore this very basic reality of web development.

Techdirt is supposed to have some technical bearings.

Anonymous Coward says:

Re: Re:

1. No artist will be able to know how his work is being used legally or illegally, there are so many hours in a day and we live in a world with 7 billion people in it, how are you going to check each and every one to be sure they didn’t use it in some way?

2. Most web developers copy and paste things from different sources and I have to see one yet that credit any source from where they took anything unless they use it unmodified, how many people do you know edit the EXIF data on their images to include copyrights and author names? there is not even a standard for those entries anywhere.

3. Copyright is so messed up that is not possible for anybody to fallow it not even with infinite financial resources, that is why any defender of strong IP will always get burned by it, in this case the copyrights where standard when the work was created and changed it along the way, there is no database that people can consult anywhere to see those changes, so if you bought something in the past and used today and the terms changed, which one is the one that applies? obviously the one at the time of licensing, but it was for life? does the guy have a hardcopy of the contracted anywhere? would have those people cared to archive those documents? how much would it cost to start archiving licensing agreements?

Oh crap that is a can of worms.

Anonymous Coward says:

Re: Re:

Pointing out that Mr. Smith likes to play loose with copyright is as legit as pointing out that a politician who drones on about the sanctity of marriagebetweenamanandawoman hires callboys.

If the issue is important to him, he better make sure that at least his own website lives up to the standards he wants to force on society.

The photography in question uses Creative Commons. I.e. it requires naming the artist and non-commercial use and nothing else. Easy enough. But it didn’t happen.

Justin Olbrantz (Quantam) (profile) says:

Re: Re:

“But if someone you liked had the same allegation against them, you would likely point out this is clearly fair use, and that a recent court decision just a couple weeks ago confirmed that you can in fact use a work in it’s entirety under the doctrine of fair use. So… it’s moot there.”

Mercy begets mercy, and malice begets malice. When you crusade to punish people for something and then do it yourself, it’s only to be expected that a lot of people will want your head on a pike. If you couldn’t see that coming before you even began your crusade, you really don’t have the minimal level of foresight necessary to be making laws, to begin with.

On the specific Righthaven case you’re referring to, I was actually skeptical of that particular verdict to begin with. I can’t speak for anyone else.

“Smith’s website was probably created by a third tier web development outfit, like any of the small web design firms you’ll find in the Midwest or elsewhere. These companies are usually pretty good about licensing. If you could find the people who designed the website, you’re likely to find the licensees of the stock photography.

This is how it’s done.
It’s totally legal.”

That remains to be seen for the new image; it is a stock image that is licensable, and as such may potentially be licensed. The image that started this thread, however, was very definitely not. We know this because it has a permissive license with mandatory attribution. No payment is required to make use of it, but failure to attribute the image makes it unlicensed by definition, and hence copyright infringement.

Now, it is possible that this was done by a third party web page designer, and not Lamar’s office. While this might venerate Lamar, it is, in reality a worse situation, because it means that it was commercial copyright infringement, rather than simply use for non-commercial purposes. In which case the only reasonable course of action for Lamar would be to call up an attorney general to start criminal copyright infringement charges against the company.

Anonymous Coward says:

Re: Re:

These companies are usually pretty good about licensing.

Really? Then why did they take down the entire site and redesign it with photos from iStockPhoto? Why knock it out of the archive database?

Because he (or the company that developed his site) is guilty of copyright infringement. Also, there is virtually no way that this met any of the four factors of a fair use:
1. criticism of the work – nope.
2. commentary on the work – nope.
3. new reporting – nope.
4. teaching – nope.
5. scholarship – nope.
6. research – nope.

Allow me to be clear, I don’t really care that he infringed the copyright of this guys photo (although it is under creative commons – non commercial, so he could have at least done the attribution). I care that he is trying to shutdown the internet to stop copyright infringement while simultaneous committing copyright infringement.

Even if this was “someone I liked” I’d still call them out for being a hypocritical douche bag.

Anonymous 314159 says:

Just sayin' ...

Anyone else notice the content of the page as well?
* “Stays in touch” yet claims there is no opposition to SOPA
* “I will work every day to defend the Constitution”, which says that copyright is “To promote the Progress of Science and useful Arts” (Article 1, Section 8, clause 8), yet supports legislation that would impede the Progress of Science and useful Arts
* “That means reigning in government control” while expanding government control over the Internet.
Perhaps he should line up his actions with his words.

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